Exhibit 3(a)
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED OPERATING AGREEMENT OF
BELAIR CAPITAL FUND LLC
AMENDMENT No. 2 dated as of December 30, 2003, by Xxxxx Xxxxx Management, a
Massachusetts business trust, as manager (the "Manager") of Belair Capital Fund
LLC (the "Fund").
WHEREAS, pursuant to Section 12.1 of the Amended and Restated Operating
Agreement of the Fund, dated as of February 6, 1998, as amended (the
"Agreement"), the Manager has the authority to amend the Agreement; and
WHEREAS, the Manager desires to amend the Agreement as set forth herein.
NOW THEREFORE, the Manager hereby amends the Agreement as follows:
1. Article 1 of the Agreement is hereby amended by adding the following
definition:
"Net Realized Gains" has the meaning set forth in Section 8.1(b)
hereof.
2. Sections 8.1(a) and 8.1(b) of the Agreement are hereby amended by
deleting such Sections in their entirety and replacing them with the following:
(a) On the last business day of each Fiscal Year or shortly
thereafter, the Fund intends to distribute to the Shareholders an
amount approximately equal to the Net Current Income of the Fund
for the Fiscal Year, if any. The term "Net Current Income" shall
mean the net income and net realized short-term capital gains in
excess of net realized long-term capital losses accrued by or
allocated to the Fund for the Fiscal Year ended, determined in
accordance with the treatment of various income, gain, loss,
expense and other items for federal income tax purposes. Such
distributions shall be made to the Shareholders in proportion to
the number of Shares held by each.
(b) On the last business day of each Fiscal Year or shortly
thereafter, the Fund intends to distribute to the Shareholders an
amount approximately equal to 18% (which percentage may be
adjusted to reflect changes in the effective maximum marginal
individual federal tax rate for long-term capital gains) of the
Fund's Net Realized Gains for the Fiscal Year, if any, that are
not Precontribution Gains. The term "Net Realized Gains" shall
mean the excess of the Fund's net realized long-term capital
gains for federal income tax purposes for that Fiscal Year over
the Fund's net short-term capital losses for federal income tax
purposes for that Fiscal Year and the cumulative amount of Fund
capital losses from prior Fiscal Years not previously applied
against net realized capital gains for distribution purposes.
Distributions with respect to Net Realized Gains other than
Precontribution Gains shall be made to the Shareholders in
proportion to the number of Shares held by each.
3. This Amendment shall be effective upon execution by the Manager, and
the Agreement, as amended by this Amendment, is and shall continue to be in full
force and effect.
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IN WITNESS WHEREOF, the Manager has executed this Amendment as of the day
and year first above written.
MANAGER:
XXXXX XXXXX MANAGEMENT
By: /s/ Xxxxxxx X. Gemma
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Title: Vice President
