EXHIBIT 10.84
OPERATING AGREEMENT
OF
FIRSTMARK SERVICES, LLC
ARTICLE I
DEFINITIONS
The following terms used in this Operating Agreement (hereinafter
referred to as "Operating Agreement"), shall have the following meanings (unless
otherwise expressly provide herein);
(a) "Articles of Organization" shall mean the Articles of
Organization of Firstmark Services, LLC, as filed with the Secretary of
State of Colorado 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 a Member whenever made.
"Initial Capital Contribution" shall mean the initial contribution to
the capital of the Company pursuant to this Operating Agreement.
(d) "Capital Interest" shall mean the proportion that a
Member's positive Capital Account bears to the aggregate positive
Capital Accounts of all Members whose Capital Accounts have positive
balances as may be adjusted from time to time.
(e) "Code" shall mean the Internal Revenue Code of 1986
or corresponding provisions of subsequent superseding federal revenue
laws.
(f) "Colorado Act" shall mean the Colorado Limited
Liability Company Act at Section 7-8-0203 C.R.S., et seq.
(g) "Company" shall refer to Firstmark Services, LLC.
(h) "Deficit Capital Account" shall mean with respect to
any Member, the deficit balance, if any, in such Member's Capital
Account as of the end of the taxable year, after giving effect to the
following adjustments:
(i) credit to such Capital Account any amount which such
Member is obligated to restore under Section
1.704-1(b)(2)(ii)(e) of the
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Treasury Regulations, as well as any addition thereto
pursuant to the next to last sentence of Sections
1.704-2(g)(1) and (i)(5) of the Treasury
Regulations, after taking into account thereunder any
changes during such year in partnership minimum gain
(as determined in accordance with Section 1.704-2(d)
of the Treasury Regulations) and in the minimum gain
attributable to any partner nonrecourse debt (as
determined under Section 1.704-2(i)(3) of the
Treasury Regulations); and
(ii) debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Treasury Regulations.
This definition of Deficient Capital Account is intended to comply with
the provision of Treasury Regulations Section 1.704-1(b)(2)(ii)(e) and
1.704-2, and will be interpreted consistently with those provisions.
(i) "Distributable Cash" means all cash, revenues and
funds received by the Company from Company operations, 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
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.
(j) "Economic Interest" shall mean a Member's or Economic
Interest Owner's share of one or more of the Company's Net Profits, Net
Losses and distributions of the Company's assets pursuant to this
Operating Agreement and the Colorado Act, 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 decision of the Members or Managers.
(k) "Economic Interest Owner" shall mean the owner of an
Economic Interest who is not a Member.
(1) "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.
(m) "Fiscal Year" shall mean the Company's fiscal year,
which shall be the calendar year.
(n) "Gifting Member" shall mean any Member or Economic
Interest Owner who gifts, bequeaths or otherwise Transfers for no
consideration (by operation of law or otherwise, except with respect to
bankruptcy) all or any part of its Membership Interest or Economic
Interest.
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(o) "Majority Interest" shall mean one or more Interests
of Members which taken together exceed 50% of the aggregate of all
Capital Interests.
(p) "Manager" shall mean one or more managers.
Specifically, "Manager" shall mean Xxxx Xxxxxx, 0000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and Xxxx Xxxxxxx, 0000 Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or any other persons
that succeed them in that capacity. 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.
(q) "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.
(r) "Membership Interest" shall mean a Member's entire
interest in the Company including such Member's Economic Interest and
the right to participate in the management of the business and affairs
of the Company, including the right to vote on, consent to, or
otherwise participate in any decision or action of or by the Members
granted pursuant to this Operating Agreement and the Colorado Act.
(s) "Net Profits" and "Net Losses" shall mean the income,
gain, loss, deductions and credits of the Company in the aggregate or
separately stated, as appropriate, determined in accordance with the
accounting principles employed under the cash method of accounting at
the close of each fiscal year on the Company's information tax return
filed for federal income tax purposes.
(t) "Operating Agreement" shall mean this Operating
Agreement as originally executed and as amended from time to time.
(u) "Persons" shall mean any individual or Entity, and
the heirs, executors, administrators, legal representatives,
successors, and assigns of such "Person" where the context so permits.
(v) "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.
(w) "Selling Member" shall mean any Member of Economic
Interest Owner which sells, assigns, or otherwise transfers for
consideration all or any portion of its Membership Interest or Economic
Interest.
(x) "Transferring Member" shall collectively mean a
Selling Member and a Gifting Member.
(y) "Treasury Regulations" shall include proposed,
temporary and final regulations promulgated under the Code in effect as
of the date of filing the Articles of Organisation and the
corresponding sections of any regulations subsequently issued hat amend
or supersede such regulations.
ARTICLE II
FORMATION OF COMPANY
2.01 Formation. On March 2, 2002, Xxxxxxx Ciarvela organized a
Colorado Limited Liability Company by executing and delivering Articles of
Organization to the Colorado Secretary of State in accordance with and pursuant
to the Colorado Act.
2.02 Name. The name of the Company is Firstmark Services, LLC.
2.03 Principal Place of Business. The principal place of business
of the Company within the State of Colorado shall be Aurora, Colorado. 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.
2.04 Registered Office and Registered Agent. The Company's initial
registered office shall be at the office of its registered agent at 0000 Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and the name of its initial
registered agent at such address shall be Xxxxxxx Xxxxxxxxx. 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 Colorado Secretary of State pursuant to the Colorado Act.
2.05 Term. The term of the Company shall be perpetual from the date
of filing of Articles of Organization with the Secretary of State of the State
of Colorado, unless the Company is earlier dissolved in accordance with either
the provisions of this Operating Agreement or the Colorado Act.
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ARTICLE III
BUSINESS OF COMPANY
3.01 Permitted Businesses. The business of the Company shall be to
service, process, originate and administer student loans and shall include the
power to:
(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 Colorado Act.
(c) To engage in all activities necessary custom,
convenient, or incident to any of the foregoing.
ARTICLE IV
NAMES AND ADDRESSES OF MEMBERS
The names and addresses of the Initial Members are as follows
NAME ADDRESS
NELnet, Inc. Attention: Xxxxx Xxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Firstmark Equity Partners, LLC Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
ARTICLE V
RIGHTS AND DUTIES OF MANAGERS
5.01 Management. The business and affairs of the Company shall be
managed by its Managers. The Managers 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 nonwaivable provisions of applicable law, the Managers shall
have full and complete authority, power and discretion to manage and control the
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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. At any time when there is
more than one Manager, any one Manager may take any action permitted to be taken
by the Managers, unless the approval of more than one of the Managers is
expressly required pursuant to this Operating Agreement or the Act.
5.02 Number, Tenure and Qualifications. The Company shall initially
have two Managers, one of whom shall be appointed by NELnet, Inc. ("NELnet") and
one of whom shall be appointed by Firstmark Equity Partners, LLC ("FEP"). The
number of Managers of the Company shall be fixed from time to time by the
affirmative vote of Members holding at least two-thirds of all Capital Interests
in the Company's capital, but in no instance shall there be less than one
Manager. Each Manager shall hold office until the next annual meeting of Members
or until his successor shall have been elected and qualified. Successor Managers
shall be elected by the affirmative vote of Members who elected the departing
Manager. Managers need not be residents of the State of Colorado or Members of
the Company.
5.03 Certain Powers of Managers. Without limiting the generality of
Section 5.01, the Managers shall have power and authority, on behalf of the
Company:
(a) To acquire property from any Person as the Managers
may determine. The fact that a Manager or a Member is directly or
indirectly affiliated or connected with any such Person shall not
prohibit the Managers from dealing with that Person;
(b) To borrow money for the Company from banks, other
lending institutions, the Managers, Members, or affiliates of the
Managers or Members on such terms as the Managers deem appropriate, and
in connection therewith, to hypothecate, encumber and grant security
interests in the assets of the Company to secure repayment of the
borrowed sums. No debt shall be contracted or liability incurred by or
on behalf of the Company except by the Managers, or to the extent
permitted under the Colorado Act, by agents or employees of the Company
expressly authorized to contract such debt or incur such liability by
the Managers;
(c) To purchase liability and other insurance to protect
the Company's property and business;
(d) To hold and own any Company real and/or personal
properties in the name of the Company;
(e) To invest any Company funds temporarily (by way of
example but not limitation) in time deposits, short-term governmental
obligations, commercial paper or other investments;
(f) Upon the affirmative vote of the Members holding at
least two-thirds of all Capital Interests, to sell or otherwise
dispose of all or substantially all
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of the assets of the company as part of a single transaction or plan so
long as such disposition is not in violation of or a cause of a default
under any other agreement to which the Company may be bound, provided,
however, that the affirmative vote of the Members shall not be required
with respect to any sale or disposition of the Company's assets in the
ordinary course of the Company's business;
(g) To execute on behalf of the Company all instruments
and documents, including, without limitation, checks; drafts; notes and
other negotiable instruments; mortgages or deeds of trust; security
agreements; financing statements; documents providing for the
acquisition, mortgage or disposition of the Company's property;
assignments; bills of sale; leases; partnership agreements, operating
agreements of other limited liability companies; and any other
instruments or documents necessary, in the opinion of the Managers, to
the business of the Company;
(h) To employ accountants, legal counsel, managing agents
or other experts to perform services for the Company and to compensate
them from Company funds;
(i) To enter into any and all other agreements on behalf
of the Company, with any other Person for any purpose, in such forms as
the Managers may approve; and
(j) To do and perform all other acts as may be necessary
or appropriate to the conduct of the Company's business.
Unless authorized to do so by this Operating Agreement or by a
Manager or 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.
5.04 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
a Member, unless the loss or damage shall have been the result of fraud, deceit,
gross negligence, willful misconduct or a wrongful taking by the Manager.
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5.05 Managers Have No Exclusive Duty to Company. The Manager shall
not be required to manage the Company as his sole and exclusive function and he
(or any Manager) may have other business interests and may engage in other
activities in addition to those relating to the Company. 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 or to the
income or proceeds derived therefrom. The Manager shall incur no 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.
5.07 Indemnity of the Managers, Employees and Other Agents. To the
maximum extent permitted under Section 21-2603 of the Colorado Act, the Company
shall indemnify the Managers and make advances for expenses to the maximum
extent permitted under Section 21-2603 of the Colorado 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 a given situation
is approved by Members owning any Majority Interest.
5.08 Resignation. Any Manager of the Company may resign at any time
by giving written notice to 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.
5.09 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 the affirmative vote of Members holding a Majority Interest. The
removal of a Manager who is also a Member shall not affect the Managers' 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 the affirmative vote of a majority
of the remaining Managers then in office, provided that if there are no
remaining managers, the vacancy(ies) shall be filled by the affirmative vote of
Members holding a Majority Interest. 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 an election
at an annual meeting or at a special meeting of Members called for that purpose
or by the Members' unanimous written consent. A Manager elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office and
shall hold office until the expiration of such term and until his successor
shall be elected and shall qualify or until his earlier death, resignation or
removal. A Manager chosen to fill a position resulting from an increase in the
number of Managers shall hold office until the next annual meeting of Members
and until his successor shall be elected and shall qualify, or until his earlier
death, resignation or removal.
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5.11 Salaries. The salaries and other compensation of the Managers
shall be fixed from time to time by an affirmative vote of Members holding at
least a Majority Interest, and no Manager shall be prevented from receiving such
salary by reason of the fact that he is also a Member of the Company.
5.12 Officers. The Managers may, from time to time, delegate the
powers set forth in Section 5.03 hereof to one or more officers including,
without limitation, a president or one or more vice presidents or assistant vice
presidents. Such delegation of powers may be revoked at any time by any one
Manager.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
6.01 Limitation of Liability. Each Member's liability shall be
limited as set forth in this Operating Agreement, the Colorado Act and other
applicable law.
6.02 Company Debt Liability. A Member will not be personally liable
for any debts or losses of the Company beyond his respective Capital
Contributions and any obligation of the Member under Section 8.01 or 8.02 to
make Capital Contributions, except as provided in Section 6.07 herein or as
otherwise required by law.
6.03 List of Members. Upon written request of a Member, the Manager
shall provide a list showing the names, addresses and Membership Interests and
Economic Interests of all Members.
6.04 Approval of Sale of All Assets. The Members shall have the
right, by the affirmative vote of Members holding at least two-thirds of all
Capital Interests, 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.
6.05 Company Books. In accordance with Section 9.09 herein, the
Managers shall maintain and preserve, during the term of the Company, and for
five (5) years thereafter, all accounts, books, and other relevant Company
documents. Upon reasonable request, each Member and Economic Interest Owner
shall have the right, during ordinary business hours, to inspect and copy such
Company documents at the requesting Member's and Economic Interest Owner's
expense.
6.06 Priority and Return of Capital. Except as may be expressly
provided in Article IX, no Member or Economic Interest Owner shall have priority
over any other Member or Economic Interest Owner, 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.
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6.07 Liability Of a Member to the Company.
(a) A Member who rightfully receives the return in whole
or in part of its contribution is nevertheless liable to the Company
only to the extent now or hereafter provided by the Colorado Act.
(b) A Member who receives a distribution made by the
Company:
(i) which is either in violation of this
Operating Agreement, or
(ii) when the Company's liabilities exceed its
assets (after giving effect to the distribution),
is liable to the Company for a period of six (6) years after such distribution
for the amount of the distribution.
ARTICLE VII
MEETINGS OF MEMBERS
7.01 Annual Meeting. The annual meeting of the Members shall be
held in March or at such other time as shall be determined by resolution of the
Members, commencing with the year 2003, for the purpose of the transaction of
such business as may come before the meeting.
7.02 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 any Member or Member holding at least 10% of the Capital
Interests.
7.03 Place of Meetings. The Members may designate any place, either
within or outside the State of Colorado, as the place of meeting for any meeting
of the Members. If no designation is made, or if a special meeting by otherwise
called, the place of meeting shall be the principal executive office of the
Company in the State of Colorado.
7.04 Notice of Meetings. Except as provided in Section 7.05,
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 10
days nor more than 50 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 (2) 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 Meeting of all Members. If all of the Members shall meet at
any time and place, either within or outside of the State of Colorado, 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.
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7.06 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 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.
7.07 Quorum. Members holding at least two-thirds of all Capital
Interests, 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, a majority
of the Capital Interests so represented may adjourn the meeting from time to
time for a period not to exceed 60 days without further notice. However, if the
adjournment is for more than 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 organize meeting may continue
to transact business until adjournment, notwithstanding the withdrawal during
such meeting of that number of Capital Interests whose absence would cause less
than a quorum.
7.08 Manner of Acting. If a quorum is present, the affirmative vote
of Members holding a Majority Interest shall be the act of the Members, unless
the vote of a greater or lesser proportion or number is otherwise required by
the Colorado 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.
7.09 Proxies. At all meetings of Members a Member may vote in
person or by proxy executed in writing by the Member of 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.
7.10 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 is effective when all Members entitled to vote
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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7.11 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.
ARTICLE VIII
CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS
8.01 Members' Capital Contributions. Each Member shall contribute
such amount as is set forth in Exhibit A hereto as its share of the Initial
Capital Contribution.
8.02 Additional Contributions. Except as set forth in Section
8.01, no Member shall be required to make any Capital Contributions. To the
extent unanimously approved by the Managers, from time to time, the Members may
be permitted to make additional Capital Contributions if and to the extent they
so desire, and if the Managers determine that such additional Capital
contributions are necessary or appropriate in connection with the conduct of the
Company's business (including without limitation, expansion or diversification).
In such event, the Members shall have the opportunity (but not the obligation)
to participate in such additional Capital Contributions on a pro rata basis in
accordance with their Interests.
8.03 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 and Net Losses; and (4)
allocations to such Member of income described in Section 705(a)(1)(B)
of the Code. 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) allocations to such Member of expenditures described in
Section 705(a)(2)(B) of the Code; and (4) allocations to the account of
such Member of Company loss and deduction as set forth in such
Regulations, taking into account adjustments to reflect book value.
(b) In the event of a permitted sale or exchange of a
Membership Interest or an Economic Interest 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 Economic Interest in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations.
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(c) The manner in which Capital Accounts are to be
maintained pursuant to this Section 8.03 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 8.03 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 8.03,
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 (or any Member's
Membership Interest or Economic Interest Owner's Economic Interest),
liquidating distributions will be made in accordance with the positive
Capital Account balances of the Members and Economic Interest Owners,
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 within sixty days of the end of the
taxable year (or, if later, within 120 days after the date of the
liquidation). The Company may offset damages for breach of this
Operating Agreement by a Member or Economic Interest Owner whose
interest is liquidate (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 Colorado Act (and
subject to Section 8.01 and 8.02), no Member of Economic Interest
Owner shall have any liability to restore all or any portion of a
deficit balance in such Member's or Economic Interest Owner's Capital
Account.
8.04 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.
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ARTICLE IX
ALLOCATIONS, INCOME TAX, DISTRIBUTIONS, ELECTIONS AND REPORTS
9.01 Allocations of Profits and Losses from Operations. The Net
Profits and Net Losses of the Company for each fiscal year will be allocated in
proportion to the capital accounts of the Members.
9.02 Special Allocations to Capital Accounts notwithstanding
Section 9.01 hereof:
(a) No allocations of loss, deduction and/or expenditures
described in Section 705(a)(2)(B) of the Code shall be charged to the
Capital Accounts of any Member if such allocation would cause such
Member to have a Deficit Capital Account. The amount of the loss,
deduction and/or Code Section 705(a)(2)(B) expenditure which would have
caused a Member to have a Deficit Capital Account shall instead by
charged to the Capital Account of any Members which would not have a
Deficit Capital Account as a result of the allocation, in proportion to
their respective Capital Contributions, or, if no such Members exist,
then to the Members in accordance with their interests in Company
profits pursuant to Section 9.01.
(b) In the event any Member unexpectedly receives any
adjustments, allocations, or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4),(5), or (6) of the Treasury Regulations, which
create or increase a Deficit Capital Account of such Member, then items
of Company income and gain (consisting of a pro rata portion of each
item of Company income, including gross income, and gain for such year
and, if necessary, for subsequent years) shall be specially credited to
the Capital Account of such Member in an amount and manner sufficient
to eliminate, to the extent required by the Treasury Regulations, the
Deficit Capital Account so created as quickly as possible. It is the
intent that this Section 9.02(b) be interpreted to comply with the
alternate test for economic effect set forth in Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
(c) In the event any Member would have a Deficit Capital
Account at the end of any Company taxable year which is in excess of
the sum of any amount that such Member is obligated to restore to the
Company under Treasury Regulations Section 1.7041(b)(2)(ii)(c) and
such Member's share of minimum gain as defined in Section
1.704-2(g)(1) of the Treasury Regulations, the Capital Account of such
Member shall be specially credited with items of Membership income
(including gross income) and gain in the amount of such excess as
quickly as possible.
(d) Notwithstanding any other provision of this Section
9.02, if there is a net decrease in the Company's minimum gain as
defined in Treasury Regulation Section 1.704-2(d) during a taxable year
of the Company, then, the Capital
14
Accounts of each Member shall be allocated items of income (including
gross income) and gain for such year (and if necessary for subsequent
years) equal to that Member's share of the net decrease in Company
minimum gain. This Section 9.02(d) is intended to comply with the
minimum gain chargeback requirement of Section 1.704-2 of the Treasury
Regulations and shall be interpreted consistently therewith. If in any
taxable year that the Company has a net decrease in the Company's
minimum gain, if the minimum gain chargeback requirement would cause a
distortion in the economic arrangement among the Members and it is not
expected that the Company will have sufficient other income to correct
that distortion, the Managers may in their discretion (and shall, if
requested to do so by a Member) seek to have the Internal Revenue
Service waive the minimum gain chargeback requirement in accordance
with Treasury Regulation Section 1.704-2(f)(4).
(e) Items of Company loss, deduction and expenditures
described in Section 705(a)(2)(B) which are attributable to any
nonrecourse debt of the Company and are characterized as partner
(Member) nonrecourse deductions under Section 1.704-2(i) of the
Treasury Regulations shall be allocate to the Members' Capital Accounts
in accordance with said Section 1.704-2(i) of the Treasury
Regulations.
(f) Beginning in the first taxable year in which there
are allocations of "nonrecourse deductions" (as described in Section
1.704-2(b) of the Treasury Regulations) such deductions shall be
allocated to the Members in accordance with, and as a part of the
allocations of Company profit or loss for such period.
(g) In accordance with Section 704(c)(1)(A) of the Code
and Section 1.704-1(b)(2)(i)(iv) of the Treasury Regulations, if a
Member contributes property with a fair market value that differs from
its adjusted basis at the time of contribution, income, gain, loss and
deductions with respect to the property shall, solely for federal
income tax purposes, be allocated among the Members so as to take
account of any variation between the adjusted basis of such property to
the Company and its fair market value at the time of contribution.
(h) Pursuant to Section 704(c)(1)(B) of the Code, if any
contributed property is distributed by the Company other than to the
contributing Member within five years of being contributed, then,
except as provided in Section 704(c)(2) of the Code, the contributing
Member shall be treated as recognizing gain or loss from the sale of
such property in an amount equal to the gain or loss that would have
been allocated to such Member under Section 704(c)(1)(A) of the Code
if the property had been sold at fair market value at the time of the
distribution.
15
(i) In the case of any distribution by the Company to a
Member or Economic Interest Owner, such Member or Economic Interest
Owner shall be treated as recognizing gain in an amount equal to the
lesser of:
(1) the excess (if any) of (A) the fair market
value of the property (other than money) received in the
distribution over (B) the adjusted basis of such Member's
Membership Interest or Economic Interest Owner's Economic
Interest in the Company immediately before the distribution
reduced (but not below zero) by the amount of money received
in the distribution, or
(2) the Net Precontribution Gain (as defined in
Section 737(b) of the Code) of the Member or Economic Interest
Owner. The Net Precontribution Gain means the net gain (if
any) which would have been recognized by the distributee
Member or Economic Interest Owner under Section 704(c)(1)(B)
of the Code of all property which (1) had been contributed to
the Company within five years of the distribution, and (2) is
held by the Company immediately before the distribution, had
been distributed by the Company to another Member or Economic
Interest Owner. If any portion of the property distributed
consists of property which had been contributed by the
distributee Member or Economic Interest Owner to the Company,
then such property shall not be taken into account under this
Section 9.02(i) and shall not be taken into accounting
determining the amount of the Net Precontribution Gain. If the
property distributed consists of an interest in an entity, the
preceding sentence shall not apply to the extent that the
value of such interest is attributable to the property
contributed to such entity after such interest had been
contributed to the Company.
(j) In connection with a Capital Contribution of money or
other property (other than a de minimis amount) by a new or existing
Member or Economic Interest Owner as consideration for an Economic
Interest or Membership Interest, or in connection with the liquidation
of the Company or a distribution of money or other property (other than
a de minimis amount) by the Company to a retiring Member or Economic
Interest Owner as consideration for an Economic Interest or Membership
Interest, the Capital Accounts of the Members shall be adjusted to
reflect a revaluation of Company property (including intangible assets)
in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f).
If under Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations,
Company property that has been revalued is properly reflected in the
Capital Accounts and on the books of the Company at a book value that
differs from the adjusted tax basis of such property, then
depreciation, depletion, amortization and gain or loss with respect to
such property shall be shared among the Members in a manner that takes
account of the variation between the adjusted tax basis of such
property and its book value, in the same manner as variations
16
between the adjusted tax basis and fair market value of property
contributed to the Company are taken into account in determining the
Members' shares tax items under Section 704(c) of the Code.
(k) All recapture of income tax deductions resulting from
sale or disposition of Company property shall be allocated to the
Member or Members to whom the deduction that gave rise to such
recapture was allocated hereunder to the extent that such Member is
allocated any gain from the sale or other disposition of such property.
(l) Any credit or charge to the Capital Accounts of the
Members pursuant to Sections 9.02 (b), (c) and/or (d), hereof shall be
taken into account in computing subsequent allocations of profits and
losses pursuant to Section 9.01, so that the net amount of any items
charged or credited to Capital Accounts pursuant to Sections 9.01 and
9.02 shall to the extent possible, be equal to the net amount that
would have been allocated to the Capital Account of each Member
pursuant to the provisions of this Article IX if the special
allocations required by Sections 9.02 (b), (c) and or (d), hereof had
not occurred.
9.03 Distributions. Except as provided in Section 8.03(d), all
distributions of cash or other property shall be made to the Members and
Economic Interest Owners as follows:
Except as provided in Section 9.04, all distributions of
Distributable Cash and property shall be made at such time as
determined by the Managers. All amounts withheld pursuant to
the Code or any provisions of state or local tax law with
respect to any payment or distribution to the Members from the
Company shall be treated as amounts distributed to the
relevant Member or Members pursuant to this Section 9.03.
9.04 Limitation Upon Distributions. No distribution shall be
declared and 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 contributions.
9.05 Accounting Principles. The profits and losses of the Company
shall be determined in accordance with accounting principles applied on a
consistent basis using the cash method of accounting. It is intended that the
Company will elect those accounting methods which provide the Company with the
greatest tax benefits.
9.06 Interest On and Return of Capital Contributions. No Member
shall be entitled to interest on its Capital Contribution or to return of its
Capital Contribution, except as otherwise specifically provided for herein.
9.07 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.
17
9.08 Accounting Period. The Company's accounting period shall be
the calendar year.
9.09 Records, Audits 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, Economic
Interest Owner 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;
(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.
9.10 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. The Manager
shall timely file with the Colorado Department of Revenue the Company's annual
Colorado return.
All elections permitted to be made by the Company under
federal or state laws shall be made by the manager in his sole discretion,
provided that the Manager shall make any tax election requested by Member owning
a Majority Interest.
18
ARTICLE X
TRANSFERABILITY
10.01 General. Except as otherwise specifically provide herein
neither a Member nor an Economic Interest Owner shall have the right to:
(a) sell, assign, pledge, hypothecate, transfer, exchange
or otherwise transfer for consideration, (collectively, "sell"),
(b) gift, bequeath or otherwise transfer for no
consideration (whether or not by operation of law, except in the case
of bankruptcy) all or any part of its Membership Interest or Economic
Interest.
10.02 Right of First Refusal.
(a) A Selling Member which desires to sell all or any
portion of its Membership Interest or Economic Interest in the Company
to a third party purchaser, the Selling Member shall obtain from such
third party purchaser a bona fide written offer to purchase such
interest, stating the terms and conditions upon which the purchase is
to be made and the consideration offered therefor. The Selling Member
shall give written notification to the remaining Members, by certified
mail or personal delivery, of its intention to so transfer such
interest, furnishing to the remaining Members a copy of the aforesaid
written offer to purchase such interest.
(b) The remaining Members, and each of them shall, on a
basis pro rata to their Capital Interests or on a basis pro rata to the
Capital Interests of those remaining Members exercising their right of
first refusal, have the right to exercise a right of first refusal to
purchase all (but not less than all) of the interest proposed to be
sold by the Selling Member upon the same terms and conditions as stated
in the aforesaid written offer to purchase by giving written
notification to the Selling Member, by certified mail or personal
delivery, of their intention to do so within ten (10) days after
receiving written notice from the Selling Member. The failure of all
the remaining Members (or any one or more of them) to so notify the
Selling Member of their desire to exercise this right of first refusal
within said ten (10) day period shall result in the termination of the
right of first refusal and the Selling Member shall be entitled to
consummate the sale of its interest in the Company, or such portion of
its interest, if any, with respect to which the right of first refusal
has not been exercised, to such third parry purchaser.
In the event the remaining Members (or any one or more of the
remaining Members) give written notice to the Selling Member of their
desire to exercise this right of first refusal and to purchase all of
the Selling Member's interest in the
19
Company which the Selling Member desires to sell upon the same terms
and conditions as are stated in the aforesaid written offer to
purchase, the remaining Members shall have the right to designate the
time, date and place of closing, provided that the date of closing
shall be within ten (10) days after receipt of written notification
from the Selling Member of the third party offer to purchase.
(c) In the event of either the purchase of the Selling
Member's interest in the Company by a third party purchaser or the gift
of an interest in the Company (including an Economic Interest), and as
a condition to recognizing one or more of the effectiveness and binding
nature of any such sale or gift and (subject to Section 10.03, below)
substitution of a new Member as against the Company or otherwise, the
remaining Members may require the Selling Member or Gifting Member or
and the proposed purchaser, donee or successor-in-interest, as the case
may be, to execute, acknowledge and deliver to the remaining Members
such instruments of transfer, assignment and assumption and such other
certificates, representations and documents, and to perform all such
other acts which the remaining Members may deem necessary or desirable
to:
(i) constitute such purchaser, as a Member,
donee or successor-in-interest as such;
(ii) confirm that the person desiring to acquire
an interest or interests in the Company, or to be admitted as
a Member, has accepted, assumed and agreed to be subject and
bound by all of the terms, obligations and conditions of the
Operating Agreement, as the same may have been further amended
(whether such Person is to be admitted as a new Member or will
merely be an Economic Interest Owner);
(iii) preserve the company after the completion of
such sale, transfer, assignment, or substitution under the
laws of each jurisdiction in which the Company qualified,
organized or does business;
(iv) maintain the status of the Company as
partnership for federal tax purposes; and
(v) assure compliance with any applicable state
and federal laws including securities laws and regulations.
(d) Any sale or gift of a Membership Interest or Economic
Interest or admission of a Member in compliance with this Article X
shall be deemed effective as of the last day of the calendar month in
which the remaining Members' consent thereto was given, or, if no such
consent was required pursuant to Section 10.02(e), then on such date
that the donee or successor interest complies with. The Selling Member
agrees, upon request of the remaining Members, to execute such
certificates or other documents and perform such other
20
acts as may be reasonably requested by the remaining Members from time
to time in connection with such sale, transfer, assignment, or
substitution. The Selling Member hereby indemnifies the Company and the
remaining Members against any and all loss, damage, or expense
(including, without limitation, tax liabilities or loss of tax
benefits) arising directly or indirectly as a result of any transfer or
purported transfer in violation of this Article X.
(e) Subject to Section 10.03(c), a Transferring Member
may gift all or any portion of its Membership Interest and Economic
Interest without regard to Section 10.02(a) and (b) provided that the
donee or other successor-in-interest (collectively, "donee") complies
with Section 10.02(c) and further provided that the donee is either
the Gifting Member's spouse, former spouse, or lineal descendent
(including adopted children). In the event of the gift of all or any
portion of a Gifting Member's Membership Interest or Economic Interest
to one or more donees who are under 25 years of age, one or more trusts
shall be established (or already existing) to hold the gifted
interest(s) for the benefit of such donee(s) until all of the donee(s)
reach the age of at least 25 years.
(f) A Selling Member may also demand that his/its
Economic Interest be purchased by the remaining Member(s) upon the
giving of 60 days prior written notice to the remaining Member(s). The
purchase price for such Selling Member's Economic Interest shall be its
adjusted book value as computed in conformity with generally accepted
accounting principles. Payment shall be made, in cash, within 60 days
of such notice, unless otherwise agreed by the Members.
10.03 Transferee Not Member in Absence of Unanimous Consent
(a) Notwithstanding anything contained herein to the
contrary (including, without limitation, Section 10.02 hereof), if all
of the remaining Members do not approve by unanimous written consent of
the proposed sale or gift of the Transferring Member's Membership
Interest or Economic Interest to a transferee or donee which is not a
Member immediately prior to the sale or gift, then the proposed
transferee or donee shall have no right to participate in the
management of the business and affairs of the Company or to become a
Member. The transferee or donee shall be merely a Economic Interest
Owner. No transfer of a Member's interest in the Company (including any
transfer of the Economic Interest or any other transfer which has not
been approved by unanimous written consent of the Members) shall be
effective unless and until written notice (including the name and
address of the proposed transferee or donee and the date of such
transfer) has been provided to the Company and the non-transferring
Member(s).
(b) Upon and contemporaneously with any sale or gift of a
Transferring Member's Economic Interest in the Company which does not
at the
21
same time transfer the balance of the rights associated with the
Economic Interest transferred by the Transferring Member (including,
without limitation, the rights of the Transferring Member to
participate in the management of the business and affairs of the
Company), the Company shall purchase from the Transferring Member, and
the Transferring Member shall sell to the Company for a purchase price
of $100.00, all remaining rights and interests retained by the
Transferring Member which immediately prior to such sale or gift were
associated with the transferred Economic Interest.
(c) The restrictions on transfer contained in this
Section 10.03 are intended to comply (and shall be interpreted
consistently) with the restrictions on transfer set forth in N.R.S.
Section 21-2621,
10.04 Buy/Sell Provision. NELnet or FEP (either NELnet or PEP,
hereinafter referred to as the "Offerer Member") shall have the right, at any
time after good faith efforts have failed to resolve a deadlock of the Managers
or Members in a tie vote between NELnet and FEP on a material matter,
exercisable by written notice (the "Offer") to the other Members (the "Offeree
Members"); to offer to buy the Offeree Members' entire equity interest in the
Company at a purchase price and upon the other terms determined by the Offerer
Member and specified in the Offer. The Offeree Members must elect by written
notice (the "Notice of Election") to the Offerer Member not less than twenty
(20) days after receipt of the Offer, either (i) to sell the Offeree Members'
entire equity interest in the Company to the Offerer Member at the purchase
price and on the other terms, specified in the Offer, or (ii) to offer to
purchase the Offerer Member's entire equity interest in the Company at a
purchase price equal to the price set forth in the Offer. Not later than ten
(10) days after the Notice of Election, the parties, as appropriate, shall
execute such documents and instruments reasonably required to sell and transfer
either the Offerer Member's or the Offeree Members' (as applicable) entire
equity interest in the Company at the purchase price and on the other terms as
specified in the Offer, and the closing of such sale shall take place as soon as
practicable but in any event not more than thirty (30) days following receipt of
the Notice of Election. At such closing, the selling party shall sell and
transfer its entire equity interest to the appropriate purchasing party free and
clear of all liens, claims or encumbrances, other than this Operating Agreement.
ARTICLE XI
ADDITIONAL MEMBERS
From the date of the formation of the Company, any Person or Entity
acceptable to the Members by their unanimous vote thereof may become a Member in
this Company either by the issuance by the Company of Membership Interests for
such consideration as the Members by their unanimous votes shall determine, or
as a transferee of a Member's Membership Interest or any portion thereof,
subject to the terms and conditions of this Operating Agreement. No new Members
shall be entitled to any retroactive allocation of losses, income or expense
deductions incurred by the Company. The Manager or Manager(s) may, at his or
their option, at the time a Member is admitted, close the Company books (as
though the Company's tax year had ended) or
22
make pro rata allocations of loss, income and expense deductions to a new Member
for that portion of the Company's tax year in which a Member was admitted in
accordance with the provisions of Section 706(d) of the Code and the Treasury
Regulations promulgated thereunder.
ARTICLE XII
DISSOLUTION AND TERMINATION
12.01 Dissolution.
(a) 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 2.05 hereof;
(ii) by the unanimous written agreement of all Members; or
(iii) upon the death, retirement, resignation,
expulsion, bankruptcy or dissolution of a Member or occurrence
of any other event which terminates the continued Membership
of a Member in the Company (a "Withdrawal Event"), unless the
business of the Company is continued by the consent of
two-thirds of the capital interests in the Company within 90
days after the Withdrawal Event and there are at least two
remaining Members. Each of the Members hereby agrees that
within the 60 days after the occurrence of a Withdrawal Event
other than the death, retirement, resignation, expulsion or
bankruptcy of such Member (and provided that there are then at
least two remaining Members of the Company), they will
promptly consent, in writing, to continue the business of the
Company. Each of the Members further agrees promptly to
consent, in writing, to continue the business of the Company
upon a sale or gift either of a Member's entire Economic
Interest to which all of the remaining Members do not consent
within 45 days after the occurrence of such a sale or gift or
upon a sale or gift of a Transferring Member's entire
Membership Interest. Such consents shall be mailed or hand
delivered to the principal place of business of the Company
set forth in Section 2.03 hereof (or to such other address
designated by the Managers) no later than 50 days after each
Withdrawal Event or transfer by Member of its entire Economic
Interest or Membership Interest). The sole remedy for breach
of a Member's obligation to consent to continue the business
of the Company under this Section shall be money damages (and
not specific performance).
(b) Notwithstanding anything to the contrary in this
Operating Agreement, if a Member or Members owning Capital Interest
which in the
23
aggregate constitute not less than two-thirds of the Capital Interest
vote to dissolve the Company at a meeting of the Company pursuant to
Article VII, then all of the Members shall agree in writing to dissolve
the Company as soon as possible (but in any event not more than 10
days) thereafter.
(c) As soon as possible following the occurrence of any
of the events specified in this Section 12.01 effecting the
dissolution of the Company, the appropriate representative of the
Company shall execute a statement of intent to dissolve in such form as
shall be prescribed by the Colorado Secretary of State and file same
with the Colorado Secretary of State's office.
(d) If a Member who is an individual dies or a court of
competent jurisdiction adjudges him to be incompetent to manage his
person or his property, the Member's executor, administrator, guardian,
conservator, or other legal representative may exercise all of the
Member's rights for the purpose of settling his estate or administering
his property.
(e) Except as expressly permitted in this Operating
Agreement, a Member shall not voluntarily resign or take any other
voluntary action which directly causes a Withdrawal Event. Unless
otherwise approved by Members owning a Majority Interest, a Member who
resigns (a "Resigning Member") or whose Membership Interest is
otherwise terminated by virtue of a Withdrawal Event, regardless of
whether such Withdrawal Event was the result of a voluntary act by such
Member, shall not be entitled to receive any distributions to which
such Member would not have been entitled had such Member remained a
Member. Except as otherwise expressly provided herein, a Resigning
Member shall become an Economic Interest Owner. Damages for breach of
this Section 12.01(e) shall be monetary damages only (and not specific
performance), and such damages may be offset against distributions by
the Company to which the Resigning Member would otherwise be entitled.
12.02 Effect of Filing of Dissolving Statement. Upon the filing by
the Colorado Secretary of State of a statement of intent to dissolve, the
Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but its separate existence shall continue
until a certificate of dissolution has been issued by the Secretary of State or
until a decree dissolving the Company has been entered court of competent
jurisdiction.
12.03 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.
24
(b) If the Company is dissolved and its affairs are to be
wound up, the Manager(s) 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 asset
the Members in kind),
(ii) Allocate any Profit or loss resulting from
such sales to the Members' and Economic Interest Owners'
Capital Accounts in accordance with Article IX hereof,
(iii) Discharge all liabilities of the Company,
including liabilities to Members and Economic Interest Owners
who are creditors, to the extent otherwise permitted by law,
other than liabilities to Members and Economic Interest Owners
for distributions, and establish such Reserves as may be
reasonably necessary to provide for contingent or liabilities
of the Company (for purposes of determining the Capital
Accounts of the Members and Economic Interest Owners, the
amounts of such Reserves shall be deemed to be an expense of
the Company),
(iv) Distribute the remaining assets in the
following order:
(1) If any assets of the Company are to be
distributed in kind, the net fair market
value of such assets as of the date of
dissolution shall be determined by
independent appraisal or by agreement of the
Members. Such assets shall be deemed to have
been sold as of the date of dissolution for
their fair market value, and the Capital
Accounts of the Members and Economic
Interest Owners shall be adjusted pursuant
to the provisions of Article IX and Section
8.03 of this Operating Agreement to reflect
such deemed sale.
(2) The positive balance (if any) of each
Member's and Economic Interest Owner's
Capital Account (as determined after taking
into account all Capital Account adjustments
for the Company's taxable year during which
the liquidation occurs) shall be distributed
to the Members, either in cash or in kind,
as determined by the Manager(s), with any
assets distributed in kind being valued for
this purpose at their fair market value as
determined pursuant to Section 12.03(b)(1).
Any such distributions to the Members in
respect of their Capital Accounts shall be
made in accordance with the time
requirements set forth in Section
1.704-1(b)(2)(ii)(b)(2) of the Treasury
Regulations.
25
(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.
12.04 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 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 Colorado Act. Duplicate originals of such Articles
of Dissolution shall be delivered to the Colorado Secretary of State.
12.05 Certificate of Dissolution. Upon the issuance of the
Certificate of Dissolution, the existence of the Company shall cease, except for
the purpose of suits, other proceedings and appropriate action as provided in
the Colorado Act. The Managers) shall have authority to distribute any Company
property discovered after dissolution, convey real estate and take such other
action as may be necessary on behalf of and in the name of the Company.
12.06 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
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
13.01 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
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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 (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.
13.02 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 as provided in Section 9.09. The books
and records shall at all times be maintained at the principal executive office
of the Company and shall be open to the reasonable inspection and examination of
the Members Economic Interest Owners or their duly authorized representatives
during reasonable business hours.
13.03 Application of Colorado 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 Colorado and specifically the Colorado
Act.
13.04 Waiver of Action for Partition. Each Member and Economic
Interest Owner 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.
13.05 Amendments. This Operating Agreement may not be amended
except by the unanimous written agreement of all of the Members.
13.06 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.
13.07 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.
13.08 Headings. The headings in this Operating Agreement are
inserted for convenience only and are in no way intended to describe, interpret,
define, or limit and scope, extent or intent of this Operating Agreement or any
provision hereof.
13.09 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 violation, from having the effect of an
original violation.
13.10 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
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not preclude or waive the right to use any or all other remedies. Said right and
remedies are given in addition to any other rights the parties may have by law,
statute, ordinance or otherwise.
13.11 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.
13.12 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.
13.13 Creditors. None of the provisions of this Operating
Agreement shall be for the benefit of or enforceable by any creditors of the
Company.
13.14 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.
13.15 Investment Representations. The undersigned Members and
Economic Interest Owners, if any, understand (1) that the Membership Interest
and Economic Interests evidenced by this Operating Agreement have not been
registered under the Securities Act of 1933, the Colorado Securities Act or any
other state securities laws (the "Securities Acts") because the Company is
issuing these Membership Interests and Economic Interests in reliance upon the
exemptions from the registrations requirements of the Securities Acts providing
for issuance of securities not involving a public offering, (2) that the Company
has relied upon the fact that the Membership Interests and Economic Interests
are to be held by each Member for investment, and (3) that exemption from
registrations under the Securities Acts would not be available if the Membership
Interests and Economic Interests were acquired by a Member with a view to
distribution.
Accordingly, each Member and Economic Interest Owner hereby
confirms to the Company that such Member and Economic Interest Owner is
acquiring the Membership Interests and Economic Interests for such own Member's
and Economic Interest Owner's account, for investment and not with a view to the
resale or distribution thereof. Each Member and Economic Interest Owner agrees
not to transfer, sell or offer for sale any portion of the Membership Interests
or Economic Interests unless there is an effective registration or other
qualification relating thereto under the Securities Act of 1933 and under any
applicable state securities laws or unless the holding of Membership Interests
or Economic Interests delivers to the Company an opinion of counsel,
satisfactory to the Company, that such registration or other qualification under
such Act and applicable state securities laws is not required in connection with
such transfer, offer or sale. Each Member and Economic Interest Owner
understands that the Company is under no obligation to register the Membership
Interests or Economic Interests or to assist such Member or Economic Interest
Owner in complying with any exemption from registration under the Acts if such
Member or Economic Interest Owner should at a later date,
28
wish to dispose of the Membership Interest or Economic Interest. Furthermore,
each Member realizes that the Membership Interests and Economic Interests are
unlikely to qualify for disposition under Rule 144 of the Securities and
Exchange Commission unless such Member is not an "affiliate" of the Company and
the Membership Interest or Economic Interest has been beneficially owned and
fully paid for by such Member or Economic Interest Owner for at least three
years.
Prior to acquiring the Membership Interests and Economic
Interests, each Member and Economic Interest Owner has made and investigation of
the Company and its business and have had made available to each such Member and
Economic Interest Owner all information with respect thereto which such Member
needed to make an informed decision to acquire the Membership Interest or
Economic Interest. Each Member and Economic Interest Owner considers himself or
itself to be a person possessing experience an sophistication as an investor
which are adequate for the evaluation of the merits and risks of such Member's
or Economic Interest Owner's investment in the Membership Interest or Economic
Interest.
13.16 Effect of Amendment. The members understand and agree that
this Operating Agreement supersedes any and all prior Operating Agreements
entered into by the members of Firstmark Services, LLC.
ARTICLE XIV
FUNDING PAYABLE; REIMBURSEMENT
For a period of two years from and after the date of this Agreement,
NELnet shall advance and fund expenses necessarily and appropriately incurred by
the Company of up to a maximum aggregate amount of $2.5 million, within ten
(10) days after written request by the Company for such payment, which notice
shall detail the business purpose and need for any such advance. The Company
shall repay such advances, together with interest accruing at the variable
annual rate of 165 basis points (1.65%) above the thirty day LIBOR rate (the
rate of Eurodollar deposits which appears in The Wall Street Journal or on
Telerate Page 375 as defined in the International Swaps and Derivatives
Associations, Inc. 1991 Interest Rate and Currency Definitions) at the
initiation of any such advances and adjusting monthly on the first day of each
month until the principal balance is paid in full, which shall be at the
termination of NELnet's obligation to so advance. NELnet's commitment to advance
shall renew automatically for consecutive one-year periods unless NELnet gives
notice of intent to terminate at least ninety (90) days prior to the end of the
initial two-year term of this Agreement or at least ninety (90) days prior to
the end of any one-year renewal term thereafter, which shall be effective to
terminate NELnet's obligation to advance at the end of the then current term. In
the event of a breach by the Company hereunder, NELnet may terminate its
obligation to advance upon notice to the Company. NELnet's commitment to advance
shall terminate at any time that NELnet no longer is a Member of the Company.
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CERTIFICATE
The undersigned hereby agree, acknowledge and certify that the foregoing
Operating Agreement, consisting of 29 pages, excluding the Table of Contents and
attached Exhibits, constitutes the Operating Agreement of Firstmark Services,
LLC, adopted by the Members of the Company as of the 31st day of March, 2002.
MEMBERS:
NELNET, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: CFO
FIRSTMARK EQUITY PARTNERS, LLC
By: /s/ X. Xxxxxxx
------------------------------------
Title: Manager
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