Exhibit 3(ii)(y)
AMENDED
OPERATING AGREEMENT
of
NCR III, LLC
This is the Amended Operating Agreement of NCR III, LLC, a Virginia
limited liability company (the "Company"), entered into as of this __ day of
________________, 199_, by and among NCH II, LLC, a Virginia limited liability
company, and NCR II, Inc., a Virginia corporation, the Company's members [each
(and each other person or entity while hereafter admitted as a Member) a
"Member", and collectively with each other Member, the "Members"].
1. Name. The name of the Company is NCR III, LLC. The business of the
Company may be conducted under such trade or fictitious name or names as the
Members may select from time to time.
2. Principal Office. The Company's principal office, where the Company's
principal executive offices are located and at which the records required to be
maintained by the Act (hereinafter defined) are to be kept shall be located at
000 XX Xxxxx Xxxxxx, Xxxxx 0-X, Xxxxxxxxxx, Xxxxxxx 00000, or at such other
place or places as the Members may determine from time to time.
3. Capital Accounts.
(a) Capital Contributions. The amount of the Members' capital
contributions (to be made simultaneously with their execution of this agreement)
are set forth on Exhibit A; such Members shall not be required to lend or make
any additional capital contribution.
(b) Capital Accounts; Allocations. A separate capital account
(singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be
established and maintained for each Member. As of any date, the amount of a
Member's Capital Account shall be adjusted and any allocations of the Company's
income, gain, loss, deductions, or credits (or items thereof) shall be
determined and made as hereinafter provided and in accordance with the Company's
records and, to the extent consistent herewith, applicable provisions of the
Virginia Limited Liability Company Act as it may be amended or superseded from
time to time (the "Act"):
(i) Each Member's Capital Account (a) shall be increased by
(i) the cash amount or agreed fair market value of all contributions
hereafter made by such Member to the Company, (ii) any net income
allocated (but not distributed) to such Member pursuant to this
Section 3, and any items in the nature of income or gain that are
specially allocated (but not distributed) to such Member, and (iii)
the amount of any Company liabilities assumed by such Member or
secured by any property of the Company distributed to such Member,
and (b) shall be decreased by (i) the cash amount or agreed fair
market value of all actual or deemed distributions of cash or
property made to such Member pursuant to this agreement, (ii) any
net loss allocated to such Member pursuant to this Section 3, and
any items in the nature of expenses or losses that are specially
allocated to such Member, and (iii) the amount of any liabilities of
such Member assumed or secured by the Company. In determining the
amount of any such liabilities, there shall be taken into account
the provisions of ss. 752(c), and any other applicable provisions,
of the Internal Revenue Code as amended from time to time (the
"Code") and any applicable regulations (the "Regulations"; singly, a
"Regulation") thereunder.
(ii) In accordance with Regulation ss. 1.704, at appropriate
times, the Capital Accounts of all Members and the carrying values
of all Company properties shall be adjusted upwards or downwards to
reflect any unrealized gain or loss attributable to each Company
property, as if such unrealized gain or loss had been recognized
upon an actual sale of each such property at such time and had been
allocated to the Members pursuant to this Section 3. Similarly, in
accordance with such Regulation, immediately prior to the
distribution in kind of any Company property to a Member (including
pursuant to a liquidation of the Company) the Capital Accounts of
the Members shall be adjusted to reflect any unrealized gain or loss
attributable to such property as if such unrealized gain or loss had
been recognized upon an actual sale of such property at such time
and had been allocated to the Members pursuant to this Section 3.
Such unrealized gain or loss shall be determined using such methods
of valuation as the Members in their sole discretion deem
appropriate.
(iii) For purposes of this agreement, net income, gross income
and net loss shall be computed in the same manner as determined for
federal income tax purposes, with the modifications set forth in
Regulation ss. 1.704.
(iv) Should any Member's adjusted capital account balance
become negative as a result of any adjustment, allocation, or
distribution, thereafter, acting as rapidly as is possible, from
time to time such Member's
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share of the Company's income and gain, if any, shall be separately
allocated to such Member's Capital Account until such time as such
Member's Capital Account deficit is eliminated.
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(v) Non-recourse deductions shall be allocated in a manner
that is reasonably consistent with other allocations of items of
income, gain, or loss attributable to the property securing the
non-recourse liabilities. In the first year in which the Company has
non-recourse deductions or makes distributions attributable to an
increase in minimum gain as defined in the Regulations, this
agreement shall be deemed to include a "minimum gain chargeback" in
accordance with the Regulations.
4. Members. No person or entity shall be or become a Member of the Company
unless named as a Member herein or hereafter admitted as a Member of the Company
with the prior written consent of all then Members. The time of admission of any
such new Member shall begin when such Member's status is first reflected in
writing in the Company's records, and not before. Any Member may resign, but
(unless the Members agree otherwise in writing) any such resignation shall first
become effective thirty (30) calendar days after the Company shall have received
written notice thereof, and not before.
5. Transfer of Interests. Other than with the prior, written consent of
all Members, an assignee or other transferee of an interest in the Company (by
operation of law or otherwise) shall not thereby become a Member of the Company
nor thereby acquire any proprietary right in nor right to become a Member or to
participate in the affairs or management of the Company. Any attempted
assignment or other transfer of a Member's rights in violation of this agreement
shall be void. Without such prior written consent, by any written assignment,
pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a
Member may assign and transfer to and entitle the assignee or transferee to
receive only (as and to the extent expressly so assigned or transferred) any
share of the profits or losses or asset distributions of the Company that the
assignor or transferor Member thereafter otherwise would have been or become
entitled to hereunder, and nothing more.
6. Ceasing to be a Member. Upon any Member's death, expulsion,
resignation, dissolution, incompetency, or bankruptcy, such person or entity
shall cease to be a Member. Any payment made to a Member's successor in
interest, personal representative, executor, or administrator shall acquit the
Company of any and all liability to such Member and to any such person as may be
interested in any such payment by reason of such Member's death, expulsion,
resignation, dissolution, incompetency, or bankruptcy.
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7. Certificate; Membership; Voting Rights of Members; Transfer. Each
Member shall be entitled to a membership certificate (the "Certificate")
evidencing such Member's interest in the Company and the number of votes
entitled to be cast by such Member in voting by the Members, which Certificate
shall be in such form and contain such substance as may be agreed upon by the
Members or required by law. The Company shall maintain a Certificate register
(the "Certificate Register") recording ownership of all Certificates then
outstanding and the number of votes entitled to be cast by each Member in voting
by the Members, which register, at all times, shall be conclusive evidence of
each Member's interest in the Company and voting rights. Any transfer of a
Member's interest in the Company, in whole or in part, other than a Transfer of
an interest in a Member's share of the Company's profits or losses or assets on
distribution as provided for in Section 5, shall become effective only upon (i)
surrender of each Certificate representing the Member's interest then being
transferred accompanied by a written assignment applicable thereto, all in form
and substance satisfactory to the Company, and duly executed by the transferor,
and (ii) recordation of such transfer on the Company's Certificate Register.
8. Management. The Company's business is to be managed by a manager (the
"Manager") who shall be NCH II, LLC, who shall have the exclusive right to
manage the Company. The Manager shall have the sole and exclusive right to
manage the Company and to make all decisions regarding the Company's business,
including the right, power, and authority to do in the name of, and acting
solely on behalf of and for, the Company all lawful things that the Company
might do that in the Manager's sole good faith business judgment of the best
interests of the Company are necessary, proper, convenient, or desirable to
carry out the purposes of the Company. Any instrument or agreement may be
executed and delivered on behalf of the Company by the Manager, including any
deed or deed of trust purporting to convey or encumber, in whole or in part, any
or all of the assets of the Company, any note or other evidence of indebtedness,
lease agreement, security agreement, financing statement, contract of sale, or
other instrument.
9. Compensation and Reimbursement of Members. Members may receive
compensation for the reasonable value of any services rendered in managing the
Company, and the Company shall pay, or reimburse all expenses reasonably
incurred by any Member in connection with managing the Company.
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10. Certain Actions, Taxes. On the Company's behalf, the Members may make
any election permitted by Section 754 of the Code with respect to adjustments to
basis of the Company's property.
11. Authority of the Members to Engage in Other Businesses. Any Member, or
any affiliate of a Member may engage in and/or possess an interest in other
business ventures of any nature and description, independently or with others,
including but not limited to the ownership, financing, leasing, operation,
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management, and development of businesses that may compete with the Company; and
neither the Company nor the Members shall have any right by virtue of this
agreement in or to any other venture or to any income or profits derived
therefrom. No Member, or any affiliate of any Member shall be obligated to
present any particular investment opportunity to the Company even if such
opportunity is of a character that, if presented to the Company, could be taken
by the Company, and each of them shall have the right to take for its own
account (individually or otherwise) or to recommend to others any such
particular investment opportunity.
12. Authority of Persons to Deal with the Company. The Company may, but
shall not be required to, transact business with, borrow money from, or lend
money to any Member, or any affiliate thereof, and such person or entity shall,
subject to applicable law, have the same rights and obligations with respect
thereto as would a person who was not such a Member or affiliate.
13. Profits and Losses, Distributions, Books, Records, Reports, etc.
(a) As and to the extent permitted and not prohibited by the Act,
and as determined by a majority vote of the Members, the Company's profits and
losses (and any then distributions of the Company's cash or other assets) shall
be allocated and distributed among the Members at least annually in proportion
to their then Capital Accounts as reflected in the Company's records.
(b) The Company shall maintain and keep at its principal office
described in Section 2 complete and accurate books of account as required
pursuant to the Act. Each Member shall have access thereto at all reasonable
times and the right to inspect and copy such books and records either directly
or through a person designated by such Member.
(c) The Company shall send to all Members an annual report,
containing a balance sheet, income statement, and statement of changes in
financial position, and all information necessary for each Member to prepare its
federal income tax return.
14. Exculpation. Except by reason of acts or omissions of the Member found
by a court of competent jurisdiction upon entry of a final judgment to be due to
bad faith, fraud, willful misconduct or a knowing violation of the criminal law,
in any proceeding brought by or in the right of the Company or by or on behalf
of any Member, no Member shall be liable, responsible, or accountable in damages
or otherwise to the Company or to any Member, or to any successor, assignee or
transferee of the Company or of any Member,
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for any losses, claims, damages or liabilities arising from (i) any act
performed, or the omission to perform any act, within the scope of the authority
conferred on the Member by this agreement, (ii) the performance by the Member
of, or the omission to perform, any acts on advice of legal counsel, accountants
or other professional consultants to the Company; or (iii) the negligence,
dishonesty or bad faith of any consultant, employee, or agent of the Company
selected or engaged by the Member in good faith.
15. Exoneration. No Member or agent of the Company, jointly or severally,
shall be liable or have any obligation for any liability of the Company, whether
arising in contract, tort, or otherwise, solely by reason of being such Member
or agent of the Company.
16. Indemnification and Advances.
(a) To the full extent permitted by law, the Company shall
indemnify, defend and hold each Member harmless from and against, and may, with
the approval of a majority vote of the Members, indemnify, defend and hold the
Company's and the Member's respective affiliates, agents, employees, advisors,
consultants and other independent contractors, harmless from and against, any
loss, liability, damage, fine, judgment, penalty, attachment, cost or expense,
including reasonable attorneys' fees, arising from any demands, claims or
lawsuits against the Member or the Company's or the Member's respective
affiliates, agents, employees, advisors, consultants or other independent
contractors, in or as a result of or relating to its capacity, actions or
omissions as Member, or as an affiliate, agent, employee, advisor, consultant or
other independent contractor of the Company, or arising from or relating to the
business or activities undertaken on behalf of the Company, including, without
limitation, any demands, claims or lawsuits initiated by a Member; provided that
the acts or omissions of the Member or the Company's or the Member's affiliate,
agent, employee, advisor, consultant or other independent contractor seeking
indemnification are not found by a court of competent jurisdiction upon entry of
a final judgment to be the result of bad faith, fraud, willful misconduct, or a
knowing violation of the criminal law by the person seeking indemnification, or
to have violated such a lesser standard of conduct as under applicable law
affirmatively prevents indemnification hereunder. The termination of any action,
suit or proceeding by judgment, order, settlement, plea of nolo contendere or
its equivalent, or conviction shall not, of itself, create a presumption that
the Member or the Company's or the Member's respective affiliates, agents,
employees, advisors, consultants or other independent contractors shall not be
entitled to indemnification hereunder or that the Member or the Company's or
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the Member's respective affiliates, agents, employees, advisors, consultants or
other independent contractors did not act in good faith and in a manner that it
or they reasonably believed to be in or not opposed to the best interests of the
Company.
(b) Subject to the limitations herein, a Member shall be entitled to
receive, upon application therefor, and the Company's or the Member's respective
affiliates, agents, employees, advisors, consultants or other independent
contractors shall be entitled to receive, with the approval of a majority vote
of the Members, advances from the Company to cover the costs of defending any
claim or action against them relating to their acts or omissions as a Member, or
as an affiliate, agent, employee, advisor, consultant or other independent
contractor of the Company or a Member or otherwise relating to the Company;
provided, however, that such advances shall be repaid to the Company (with
Interest thereon at an annual rate equal to the prime rate in effect from time
to time as reflected in The Wall Street Journal but not to exceed the maximum
permitted by applicable law), if the Member or the Company's or the Member's
affiliate, agent, employee, advisor, consultant or other independent contractor
that receives such advance is found by a court of competent jurisdiction upon
entry of a final judgment to have violated any of the standards that preclude
indemnification hereunder. All rights of the Member or the Company's or the
Member's respective affiliates, agents, employees, advisors, consultants or
other independent contractors to indemnification as herein provided shall
survive the dissolution of the Company and the death, resignation, expulsion,
incompetency, dissolution, liquidation or Bankruptcy of the Member or any such
other person, and shall inure to the benefit of their heirs, personal
representatives, successors and assigns.
(c) In the event the indemnification obligation of this Section
shall be deemed unenforceable to any extent by a court of competent
jurisdiction, such unenforceable portion shall be modified or stricken so as to
give effect to this Section to the fullest extent permitted by law.
(d) The right of indemnification hereby provided shall not be
exclusive of or affect any other rights that the Member or any of its affiliates
may have. Nothing contained in this Section shall limit any lawful right to
indemnification existing independently of this Section.
(e) Any amount that a Member or the Company's or the Member's
respective affiliates, agents, employees, advisors, consultants or other
independent contractors is entitled to receive hereunder shall be paid only out
of and to the extent of the
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Company's then assets, including any insurance proceeds available to the Company
for such purposes. No Member shall be liable for the payment of any amount that
a Member or an affiliate, agent, employee, advisor, consultant, or other
independent contractor of the Company or the Member is entitled to receive
hereunder, nor to make any capital contribution to the Company, or return any
capital distribution made to such person or entity by the Company, nor to
restore any negative capital account balance of that Member in order to enable
the Company to make any payment hereunder.
17. Dissolution. The Company shall be dissolved upon the earliest to occur
of (i) the Members' unanimous written consent, (ii) entry of a decree of
judicial dissolution under the Act, or (iii) the date set forth in the Articles
of Organization. The death, expulsion, resignation, dissolution, incompetency,
or bankruptcy of a Member or any other event that terminates the continued
membership of a Member shall not cause a dissolution of the Company, because the
remaining Members hereby unanimously consent to continue the business of the
Company upon the happening of such event. Upon any dissolution, the Company's
business shall be wound up, its liabilities satisfied, and any balance, less
reasonable reserves, shall be distributed to the Members in accordance with
their positive capital accounts.
18. Miscellaneous Provisions.
(a) Governing Law. This agreement and the rights and liabilities of
the parties shall be determined in accordance with the laws of the Commonwealth
of Virginia.
(b) Captions. Captions contained in this agreement are inserted only
as a matter of convenience and in no way define, limit, extend, or describe the
scope or intent of this agreement or any Section or provision hereof.
(c) Construction. Whenever the context may require, each pronoun
used herein shall include the corresponding masculine, feminine, or neuter
forms, and the singular form of each noun or pronoun shall include the plural,
and vice versa.
(d) Severability. Every provision of this agreement is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of the terms or provisions of this agreement.
(e) Successors. Subject to the limitations on transferability
contained herein, each and all of the terms,
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provisions and agreements herein contained shall be binding upon and inure to
the benefit of the personal representatives, successors, heirs, and assigns
(including an assignee of all or part of any interest in the Company) of the
parties hereto.
(f) Execution and Counterparts. This agreement and any amendment
hereto may be executed in multiple counterparts, each of which shall be deemed
an original and all of which together shall constitute but one agreement. In
addition, this agreement may be executed through the use of counterpart
signature pages. The signature of any party on any counterpart agreement or
counterpart signature page shall be deemed to be a signature to, and may be
appended to, one document.
(g) Third Party Beneficiary. No provision of this agreement is
intended to be for the benefit of any creditor or other person to which any
debt, liability, or obligation is owed by (or that otherwise has any claim
against) the Company or any Member, and no creditor or other person shall obtain
any right under any of the foregoing provisions, nor shall any such person
solely by reason of any of the foregoing provisions make any claim in respect of
any debt, liability, or obligation (or otherwise) against the Company or any
Member.
(h) Investment Representation. By executing this agreement, each
Member represents and warrants that such Member's interest in the Company is
being acquired by it for its own account for investment and not with a view to
resale or distribution thereof and that the Member is fully aware that each
other Member and the Company are relying upon the truth and accuracy of this
representation and warranty.
(i) Entire Agreement. This agreement constitutes the sole operating
agreement among the Members, and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
the Members relating to the affairs of the Company and the conduct of the
Company's business. No amendment or modification of this agreement shall be
effective unless approved in writing as provided herein.
19. Notices; Consents, etc. Any notice, consent, election, approval,
payment, demand, or communication required or permitted to be given by this
agreement shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes only when delivered personally to or actually
received by the party or an officer of the entity to which directed or ten (10)
days after having been sent by registered or certified mail, postage and charges
prepaid, addressed to the address for the notified party
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contained in the Company's records. Any Member may change its address for
purposes of this agreement by giving the Company and each other Member notice of
such change, in the manner set forth above.
20. Amendment. This agreement may be amended at any time upon a unanimous
vote of the Members, but such amendment shall be effective only when reduced to
writing and signed by all Members.
21. This Amendment. The Operating Agreement of the Company previously
entered into as of the 23rd day of May 1997 is hereby amended in its entirety to
read as above, effective as of the date of this agreement.
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IN WITNESS WHEREOF, the undersigned have caused this agreement to be
executed as of the day, month, and year first above written.
Member:
NCH II, LLC
By: NCR II, Inc.
Manager
By:___________________________
a duly authorized officer
Member:
NCR II, Inc.
By:________________________________
a duly authorized officer
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EXHIBIT A
Capital
Name Contribution
---- ------------
NCH II, LLC $990.00
NCR II, Inc. $ 10.00
This is Exhibit A to the Amended Operating Agreement of NCR III, LLC as of
the ___ day of ___________, 199_.
Member:
NCH II, LLC
By: NCR II, Inc.
Manager
By:___________________________
a duly authorized officer
Member:
NCR II, Inc.
By:________________________________
a duly authorized officer
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NCR III, LLC
CERTIFICATE REGISTER
==========================================================================================
Certi- Number
ficate Shares/ Date Transfer To Whom
Number Owner Votes Issued Date Transferred
------------------------------------------------------------------------------------------
1 NCH II, LLC 990 12/___/97
------------------------------------------------------------------------------------------
2 NCR II, Inc. 10 12/___/97
==========================================================================================
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