EXHIBIT 3.1 (b)
EXHIBIT 3.1 (B)
OPERATING AGREEMENT FOR
XXXX REALTY, LLC
A Michigan Limited Liability Company
THIS OPERATING AGREEMENT (the "AGREEMENT"), effective as of September 9,
2005, is entered into by and between those persons who execute this Agreement as
members, and those persons who shall hereafter be admitted as members
(individually, a "MEMBER" and collectively, the "MEMBERS"), who agree as
follows:
ARTICLE I
ORGANIZATION
1.1 AGREEMENT REPLACES EXISTING BYLAWS. This Agreement amends,
restates and replaces in its entirety the Bylaws of XXXX Realty, LLC (the
"COMPANY") dated October 30, 1999 and all amendments thereto, if any.
1.2 FORMATION. The Company was formed pursuant to the Michigan Limited
Liability Company Act, being Act No. 23, Public Acts of 1993, (the "ACT") by the
filing of Articles of Organization (as amended, the "ARTICLES") with the
Michigan Department of Labor and Economic Growth on December 11, 1998.
1.3 NAME. The name of the Company is XXXX Realty, LLC. The Company may
also conduct its business under one or more assumed names.
1.4 PURPOSE. The Company's business and purpose shall consist solely
of the following: to engage solely in the ownership, operation and management of
certain real property consisting of fourteen (14) facilities which are more
particularly described on Exhibit A attached hereto (the "PROPERTY"), pursuant
to and in accordance with the Articles and this Agreement, and such activities
as are necessary, incidental or appropriate in connection therewith, including
the Company's guaranty of Plastipak Holdings, Inc.'s ("PLASTIPAK HOLDINGS")
10.75% Senior Notes due 2011 (the "SENIOR NOTES") and its other obligations
under the Plastipak Holdings Indenture dated as of August 20, 2001 with Xxxxx
Fargo Bank, N.A. as Trustee (successor by consolidation with Xxxxx Fargo Bank
Minnesota, National Association) (the "PLASTIPAK INDENTURE") and the Company's
guaranty of any unsecured senior notes that are issued by Plastipak Holdings on
substantially similar terms to replace or refinance the Senior Notes in the
principal amount of up to $500 million.
1.5 DURATION. The Company shall continue in existence for the period
fixed in the Articles for the duration of the Company or until the Company shall
be sooner dissolved and its affairs wound up in accordance with the Act or this
Agreement.
1.6 REGISTERED OFFICE AND RESIDENT AGENT. The Registered Office and
Resident Agent of the Company is designated in the initial Articles or any
amendment thereof. The Registered Office and/or Resident Agent may be changed
from time to time, in accordance with the Act. If the Resident Agent shall
resign, the Company shall promptly appoint a successor.
1.7 INTENTION FOR COMPANY. The former Members of the Company have
formed XXXX Realty, LLC as a Limited Liability Company under and pursuant to the
Act. The Members
specifically intend and agree that the Company not be a partnership (including a
limited partnership) or any other venture, but a Limited Liability Company under
and pursuant to the Act.
ARTICLE II
DEFINITIONS
Capitalized words and phrases used in this Agreement have the following
meanings:
2.1 "ACT" means Michigan Limited Liability Company Act being Act 23 of
Public Acts of 1993 as amended from time to time (or any corresponding
provisions of succeeding law).
2.2 "AGREEMENT" means this Agreement as amended from time to time.
2.3 "CAPITAL ACCOUNT" means, the Capital Account maintained for each
Member in accordance with the following provisions:
(a) There shall be credited to each Member's Capital Account such
Member's Capital Contributions, such Member's distributive share of profits
and the amount of any company liabilities assumed by such Member or which
are secured by any property distributed to such Member.
(b) There shall be debited to each member's Capital Account the
amount of cash distributed to such Member pursuant to any provision of this
Agreement, such Member's distributed share of losses and the amount of any
liabilities of such Member assumed by the Company or which are secured by
any property contributed by such Member to the Company.
(c) In the event any interest in the Company is transferred in
accordance with the terms of this Agreement, the transferee shall succeed
to the Capital Account of the transferor to the extent it relates to the
transferred interest.
(d) In determining the amount of any liability for purposes of
Section 2.3(a) and 2.3(b) hereof, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the code. The
foregoing provisions and the other provisions of the Agreement relating to
the maintenance of Capital Accounts are intended to comply with Code
Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such Code.
2.4 "CAPITAL CONTRIBUTION" shall mean the initial amount of cash
contributed to the capital of the Company by a Member, increased by any
additional cash contributions made to the capital of the Company by such Member
and decreased by the amount of any cash distributions made by the Company to
such Member which constitutes a return of capital in accordance with the terms
of this Agreement.
2.5 "CODE AND REGULATIONS" mean the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of succeeding law)
and any Income Tax Regulations, including Temporary Regulations promulgated
under the Code, as such Regulations may be amended from time to time (or any
corresponding provisions of succeeding regulations).
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2.6 "COMPANY" shall mean XXXX Realty, LLC, a Michigan limited
liability company.
2.7 "CONSENT OF THE MEMBERS" shall mean the consent of the Members
holding a majority interest in the total Percentage Interests of all Members,
unless specifically provided otherwise in this Agreement.
2.8 "MANAGER" shall mean XXXX Management, Inc., a Michigan
corporation.
2.9 "MEMBERS" shall mean those persons and/or entities who execute
this Agreement as Members and those persons and/or entities who are subsequently
admitted to the Company as a Member pursuant to the terms of this Agreement.
2.10 "NET CASH FLOW" shall mean all cash receipts from the operation
of the Property, or from any source other than proceeds of sale or refinancing
identified in Section 4.4, less cash expenditures by the Company other than
distributions to the Members pursuant to Article IV, and less cash reserves
established by the Manager.
2.11 "PERCENTAGE INTEREST" means, with respect to any Member, such
Member's percentage ownership of the Company.
2.12 "PROPERTY" shall mean the real property referred to in Section
1.4 above and described on Exhibit A attached hereto.
ARTICLE III
CAPITAL, PARTICIPATION IN PROPERTY AND LIABILITY
3.1 MEMBERS' INITIAL CAPITAL CONTRIBUTIONS. The Members have
contributed to the capital of the Company the amounts which are identified in
the Company's books and records.
3.2 COMPANY CAPITAL. The capital of the Company shall be the aggregate
amount of the Capital Contributions made by the Members and the capital accounts
as they stand on the Company books. A separate capital account shall be
determined and maintained for each Member in accordance with Section 2.4.
3.3 PERCENTAGE INTEREST IN COMPANY. The Members shall have and own the
Percentage Interests which are identified on Exhibit B attached hereto and
previously made a part hereof.
3.4 ADDITIONAL COMPANY FUNDS. The Members shall not be required under
this Operating Agreement to make any additional Capital Contributions to the
Company.
3.5 VOLUNTARY MEMBER LOANS TO THE COMPANY. Subject to the limitations
set forth in the Articles, if any Member agrees, with the consent of the
Manager, to loan funds to the Company, such loan, together with interest thereon
at the rate established by mutual agreement of the Member making the advance to
the Company and the Manager, shall be repaid prior to any distributions of Net
Cash Flow or other distributions of Company proceeds to the Members.
3.6 NO THIRD PARTY RIGHTS. Nothing contained in this Agreement is
intended for the benefit of any creditor or other person (other than a Member in
his capacity as such) to whom the
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Company owes any debts, liabilities or obligations or who otherwise has any
claim against the Company, and no third party shall have any rights by virtue of
the provisions of this Article III.
ARTICLE IV
DISTRIBUTION OF CASH AND
ALLOCATIONS OF PROFIT AND LOSS
4.1 MEMBERS' SHARE OF TAX PROFITS AND LOSSES. For accounting and
federal, state and local income tax purposes, the net profits and losses, and
other items of income, gain, loss, deduction and credit of the Company shall be
allocated among the Members on a pro-rata basis, in accordance with their
respective Percentage Interests.
4.2 DISTRIBUTIONS OF NET CASH FLOW. The Manager shall distribute Net
Cash Flow to the Members at such intervals as are determined by the Manager.
Prior to making any Net Cash Flow distributions, the Manager shall have the
right to establish reasonable cash reserves that the Manager determines are
necessary to satisfy the anticipated needs of the Company. The Members
acknowledge that Member loans to the Company pursuant to Section 3.5 shall be
repaid prior to any distributions of Net Cash Flow to the Members under this
Section 4.2. Subject to the foregoing, Net Cash Flow shall be distributed to the
Members on a pro-rata basis, in accordance with the Members' respective
Percentage Interests.
4.3 TAX DISTRIBUTIONS. Notwithstanding anything to the contrary set
forth in Section 4.2, the Manager shall, to the extent there is adequate Net
Cash Flow, cause the Company to make periodic distributions to the Members
during each fiscal year of the Company in such amounts and at such times so as
to enable each Member to make timely estimated and final tax payments, if any,
of federal and state income tax attributable to the portion of the Company's
taxable income allocable to such Member pursuant to the Code; provided, however,
that such periodic distributions to the Members: (i) shall not be required to
exceed the Company's estimated taxable income from the beginning of the
Company's fiscal year through the date of such periodic distribution, multiplied
by the highest individual combined federal and state income tax rates
(determined at the highest marginal income tax rate applicable to individuals in
effect under the Code during the applicable tax year for federal income tax
purposes and determined at the highest marginal income tax rate applicable to
individuals residing in the state in which each Member resides during the
applicable fiscal year for the state income tax purposes); and (ii) shall not be
required to be made if, in fact, there is no available Net Cash Flow for such
period. Any such distribution shall be on a pro rata basis in accordance with
the Members' respective Percentage Interests.
4.4 PROCEEDS OF SALE OR REFINANCING. The proceeds resulting from any
sale of all or substantially all of the Company's Property, proceeds from the
condemnation of all or any part of the Property in excess of the amount expended
to restore the Property, proceeds from hazard insurance payments in excess of
the amount expended to restore or repair the damaged Property, and any excess
financing proceeds shall be distributed and applied in the following manner and
priority:
(a) to the payment of any debts and liabilities of the Company,
including, without limitation, the repayment of Member loans to the Company
as provided for herein;
(b) to the establishment of any reserves which the Manager deems
necessary to provide for any debts or liabilities of the Company. At the
expiration of a reasonable period of time as the Manager deems advisable,
the balance of such reserved funds remaining after payment of any such
debts, liabilities or contingencies, shall be distributed in the manner
provided in this Section 4.4;
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(c) next, to the Members, on a pro rata basis, in proportion to
and to the extent of the Members' respective unreturned Capital
Contributions; and
(d) the balance of such proceeds, if any, shall be distributed to
the Members, on a pro rata basis, in accordance with their respective
Percentage Interests.
ARTICLE V
MANAGEMENT
5.1 MANAGEMENT OF THE COMPANY. The Company shall be exclusively
managed by the Manager. The Manager shall be XXXX Management, Inc., unless a
successor is appointed pursuant to Section 5.4 below. The Manager shall have the
exclusive right to manage the business of the Company, except as expressly
limited in Section 5.2 and the Articles. No other Member shall have any control
over Company business, or shall have the power to bind the Company. Subject to
Section 5.2 below and the Articles, the Manager is authorized and empowered to
carry out and implement the purposes of the Company and to manage the business
and assets of the Company. The Manager is authorized to execute and deliver, for
and on behalf of the Company, all agreements, documents and instruments to take
any other actions on behalf of the Company, except as limited by Section 5.2
below, the Articles or as otherwise provided in this Agreement. Notwithstanding
the foregoing, the Manager shall consult with each of the Members prior to
making any material decisions on behalf of the Company.
5.2 LIMITATION ON POWERS. Notwithstanding anything to the contrary
contained in this Article V, the Manager shall not take any action with respect
to the following matters without the Consent of the Members:
(a) borrow money or incur indebtedness on behalf of the Company
other than normal trade accounts payable and lease obligations in the
normal course of business, or grant consensual liens on the Company's
property; except, for the loan from PNC Bank, National Association and its
successors and assigns ("LENDER") to the Company in the approximate
principal amount of $100,000,000 (the "LOAN") and other indebtedness
expressly permitted in the Mortgage, Security Agreement, Assignment of
Leases and Rents and Fixture Filing securing the Loan ("MORTGAGE"), the
Note or in the Other Security Documents (as defined in the Mortgage) and to
grant a mortgage, lien or liens on the Company's Property and assets to
secure such Loan;
(b) dissolve, terminate or liquidate the Company, in whole or in
part;
(c) sell, transfer or otherwise dispose of all or substantially
all of the assets of the Company;
(d) file a voluntary petition or otherwise initiate proceedings
to have the Company adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Company, or
file a petition seeking or consenting to reorganization or relief of the
Company as debtor under any applicable federal or state law relating to
bankruptcy, insolvency, or other relief for debtors with respect to the
Company, or seek or consent to the appointment of any trustee, receiver,
conservator, assignee, sequestrator, custodian, liquidator (or other
similar official) of the Company or of all or any substantial part of the
properties and assets of the Company, or make any general assignment for
the benefit of creditors of the Company, or admit in writing the inability
of the Company to pay its debts generally as they become due or declare or
effect a moratorium on the Company debt or take any action in furtherance
of any action;
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(e) amend, modify or alter Articles V, VI, VII, VIII or IX of the
Company's Restated Articles of Organization; or
(f) merge or consolidate with any other entity.
Notwithstanding the foregoing, the Manager shall have no authority (1) to
take any action in items (a) through (f) above or consent to such action
unless such action has been approved by a unanimous vote of Manager's Board
of Directors, including each Independent Director, as defined in the
Manager's Articles of Incorporation, or (2) to take any action in items
(a), (b), (c), (e) or (f) without the written consent of the holder of the
Mortgage.
5.3 STANDARD OF CARE; LIABILITY. The Manager shall discharge its
duties in good faith, with the care an ordinarily prudent person in a like
position would exercise under similar circumstances, and in a manner it
reasonably believes to be in the best interests of the Company. The Manager
shall not be liable for any monetary damages to the Company for any breach of
such duties which arises out of any act or omission performed or omitted by the
Manager in good faith on behalf of the Company except for:
(a) receipt of a financial benefit to which the Manager is not
entitled;
(b) voting for or consenting to a distribution to Members in
violation of this Agreement or the Act; or
(c) a knowing violation of the law.
5.4 TERM; REMOVAL OF MANAGER.
(a) The Manager shall serve in its capacity as Manager until its
resignation, dissolution, bankruptcy or legal incapacity to serve as the
Manager or until such Manager is removed for cause in accordance with the
provisions of Section 5.4(b) below. In the event of the resignation,
dissolution, legal incapacity or removal of the Manager, the Members
holding not less than seventy five (75%) percent of the total Percentage
Interests of all Members entitled to vote shall select one or more
successor Managers, who agree to serve in such capacity.
(b) Except as provided in Section 5.4(a), a Manager may only be
removed for cause by the Members holding not less than seventy five (75%)
of the total Percentage Interests of all Members entitled to vote. For
purposes of the foregoing "cause" shall be deemed to mean the commission of
any act described in Section 5.3 (a), (b), or (c) above. In the event any
Member requests that a Manager be removed for cause, such Member shall
request a meeting for such purpose and the Manager shall have reasonable
advance notice of the allegations against it and an opportunity to be heard
at the meeting. In the event the Manager who is subject to being removed is
also a Member, the Manager shall have the right to vote his Percentage
Interest with respect to such issue.
(c) The removal of a Manager as described herein shall be subject
to the restrictions set forth in the Articles.
5.5 INDEMNIFICATION OF MANAGER AND OFFICERS OF MANAGER. The Company
shall, to the fullest extent permitted by law, indemnify and hold harmless the
Manager, its successors, heirs and permitted assigns, and its officers from and
against any and all losses, liabilities, obligations, claims, causes of action,
demands, costs, and expenses (including reasonable attorney fees) incurred by
the Manager or such officers with respect to any act or omission performed by
the Manager or officer within
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the scope of authority conferred upon him, her or it by this Agreement, provided
that the Manager or officer acted in good faith and in a manner he, she or it
reasonably believed to be in, or not opposed to, the best interests of the
Company and the Members; provided, however, the Manager or officer shall not be
indemnified for any acts described in Section 5.3(a),(b), or (c) to the extent
that the Manager or officer has been determined by a court of law to have
committed any acts in Section 5.3(a),(b), or (c), and the Manager or officer has
not appealed the court's determination or all rights to appeal the court's
decision have been exhausted.
5.6 MANAGER'S AND OFFICER'S INDEMNIFICATION EXPENSE ADVANCE. The
Company may pay or reimburse the reasonable expenses incurred by the Manager or
officer if he, she or it is made a party to an action, suit, or proceeding in
advance of final disposition of the proceeding if all of the following apply:
(a) the Manager or officer, as the case may be, furnishes the Company with a
written affirmation of his, her or its good faith belief that he, she or it has
met the applicable standard of conduct set forth in Sections 5.5; (b) the
Manager or officer, as the case may be, furnishes the Company with a written
undertaking to repay the advance if he, she or it is ultimately determined not
to have met the standard of conduct; and (c) a determination is made that the
facts then known to those making the determination would not preclude
indemnification under Section 5.5. The undertaking shall be an unlimited general
obligation of the Manager or officer, as the case may be, but it need not be
secured. All indemnification obligations of the Company are fully subordinated
to any obligations relative to the Loan or respecting the Property and such
indemnification obligations shall in no event constitute a claim against the
Company if cash flow in excess of amounts necessary to pay obligations under the
Loan is insufficient to pay such indemnification obligations.
5.7 NATURE OF MEMBER'S INTEREST. Percentage Interests in the Company
shall be personal property for all purposes. All property owned by the Company,
whether real or personal, tangible or intangible, shall be deemed to be owned by
the Company as an entity. No Member, individually, shall have ownership of such
property. The Members hereby agree that no Member, nor any successor in interest
to any Member, shall have the right while this Agreement remains in effect, to
have any Company assets partitioned, or to file a complaint or institute any
proceedings at law or in equity to have any such asset partitioned. Each Member,
on behalf of itself, its successors, successors-in-title, and assigns, hereby
waives any such right.
5.8 BANK ACCOUNTS. The bank account or accounts of the Company shall
be maintained in the banking institution or institutions selected by the
Manager. All funds of the Company shall be deposited into account(s) of the
Company and any and all checks or other instruments used to draw funds of the
Company shall require the signature of the Manager or its designated
representative.
5.9 COMPENSATION OF MANAGER AND MEMBERS. The Manager shall not receive
compensation for rendering services to the Company in its capacity as the
Manager. In addition, the Members shall not receive compensation for rendering
services to the Company in their capacity as Members. All reasonable expenses
incurred by the Manager in connection with the operation of the Company's
business shall be reimbursed in full by the Company.
5.10 ACTIVITIES OF MANAGER AND MEMBERS. The Manager shall devote such
time and effort as may be reasonably required to conduct the Company's business
and perform its responsibilities under this Article V. The Members (other than a
member who is the Manager of Company so long as such Manager has a limited
purpose materially identical to that which is set forth in the Articles of
Incorporation of the Manager as of the effective date hereof) shall not in any
way be prohibited from or restricted in engaging or owning an interest in any
other business venture of any kind, nature, character or description whatsoever,
whether independently or with others, directly or indirectly, including but not
limited to any venture which may be competitive with the business of the
Company, and neither the
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Company nor any other Member shall have any rights by virtue of the Company
created by this Agreement in and to such ventures or the income or profits
derived therefrom.
5.11 OFFICERS. The Manager may from time to time appoint such officers
of the Company as it deems appropriate. If and when such appointment(s) have
occurred, such persons shall be vested with the title and authorities as
described below:
(A) Each officer of the Company shall hold office until his/her
resignation or removal. Any officer appointed by the Manager may be removed
by the Manager with or without cause at any time. Any officer may resign by
written notice to the Company. The resignation is effective upon its
receipt by the Company or at a subsequent time specified in the notice of
resignation. Any vacancy occurring in any office of the Company may be
filled or left vacant in the Manager's discretion.
(B) PRESIDENT. The President shall be appointed by the Manager.
The President shall, in general, perform all duties incident to the office
of President and such other duties as may be prescribed by the Manager.
(C) SECRETARY. The Secretary shall preserve in the books of the
Company true minutes of the proceedings of all meetings. He/she shall
safely keep in his/her custody the seal of the Company, if any, and shall
have authority to affix the same to all instruments where its use is
required or permitted. He/she shall give all notices required by the Act,
this Agreement or resolution. He/she shall perform such other duties as may
be delegated to him/her by the Manager or the President.
(D) TREASURER. The Treasurer shall have custody of all corporate
funds and securities and shall keep in books belonging to the Company full
and accurate accounts of all receipts and disbursements; he/she shall
deposit all monies, securities and other valuable effects in the name of
the Company in such depositories as may be designated for that purpose by
the Manager, taking proper vouchers for disbursements, and shall render to
the President and the Manager wherever requested an account of all his/her
transactions as Treasurer and of the financial condition of the Company. If
required by the Manager, he/she shall keep in force a bond in form, amount
and with a surety or sureties satisfactory to the Manager, conditioned for
faithful performance of the duties of his/her office, and for restoration
to the Company in case of his/her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and property of whatever
kind in his/her possession or under his/her control belonging to the
Company. He/she shall perform such other duties as may be delegated to
him/her by the Manager or the President.
ARTICLE VI
DISPOSITION OF PERCENTAGE INTERESTS; WITHDRAWAL
6.1 RESTRICTIONS ON TRANSFER AND ASSIGNMENT.
(a) Except as expressly provided in Section 6.1(b), no Member
shall sell, assign, transfer, convey, pledge or otherwise encumber all or
any portion of its Percentage Interest, without obtaining the consent of
the Manager and unanimous consent of the other Members. Any attempted
disposition of a Percentage Interest in violation of this Section 6.1(a)
shall be void and of no effect.
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(b) A Member may, without obtaining the consent of the other
Members assign its Percentage Interest to any of the following assignees
("Permitted Transferee"):
(i) another Member;
(ii) a partnership, limited liability company, trust,
corporation or other entity that is beneficially owned and controlled
by a Member or a Member's spouse, children, children's spouses,
grandchildren or trusts for the benefit of the foregoing persons; or
(iii) an inter vivos or testamentary trust for the benefit
of a Member or any of the persons identified as Permitted Transferees
in which the Member is the sole trustee during his lifetime.
(c) The permitted assignment of a Percentage Interest to any
person or entity does not entitle the assignee to participate in the
management and affairs of the Company or to become or exercise any rights
of a Member, including the right to vote on any matter requiring a vote of
the Members, unless and until such assignee is admitted as a Member in
accordance with Section 6.2 below. Unless a Permitted Transferee is
admitted as a Member in accordance with the provisions of Section 6.2
below, such assignee shall only be entitled to receive, to the extent
assigned, the distributions to which the assignor would be entitled.
(d) In the event of a permitted assignment that does not result
in the admission of the assignee as a substitute Member, the
assignor/Member shall be entitled to continue to exercise the rights of a
member under this Agreement, and such assignor Member and its/his assignee
shall be jointly and severally liable to the Company for such Member's
obligations to the Company under this Agreement and/or under the Act.
6.2 ADMISSION OF SUBSTITUTE MEMBERS. A permitted assignee of a
Percentage Interest shall not be admitted as a substitute Member, unless all of
the following conditions are satisfied:
(a) the assignee is an existing Member or if the assignee is not
a Member, the Manager and other Members give their written consent to the
admission of such assignee as a substitute Member;
(b) the assignor and assignee execute and deliver to the Manager,
a copy of the written assignment which gives the assignee the right to
become a substitute Member;
(c) if requested by the Manager, the assignor provides to the
Company an opinion of counsel, in form and substance satisfactory to the
Manager, that the offering and assignment of the Percentage Interest does
not violate any provisions of federal or state securities laws; and
(d) the assignee executes and delivers to the other Members a
written agreement to be bound by all of the terms and provisions of this
Agreement and to assume all of the obligations of the assignor Member.
An assignee who is admitted as a substitute Member in accordance with the
foregoing provisions shall have the rights and powers, and shall be subject to
all of the restrictions, obligations and liabilities, of a Member under this
Agreement and the Act, including without limitation, the obligation to make any
required additional capital contributions that were not made by the assignor.
Upon the admission of an
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assignee as a Substitute Member, the assignor shall be released from any
additional obligations as a member under this Agreement from and after the date
of substitution.
ARTICLE VII
MEETINGS OF MEMBERS
7.1 VOTING. All Members shall be entitled to vote on any matter
submitted to a vote of the Members unless expressly provided otherwise in this
Agreement.
7.2 REQUIRED VOTE. Unless a greater vote is required by the Act, the
Articles or this Agreement, any action requiring the vote, determination or
consent of the Members shall require the affirmative vote or consent of the
Members holding a majority in interest of the total Percentage Interests of all
members entitled to vote.
7.3 MEETINGS. Meetings of Members for any proper purpose or purposes
may be called at any time by any Member. With the exception of periodic meetings
scheduled in accordance with Section 5.2, the Manager shall deliver or mail
written notice stating the date, time, place and purposes of any meeting to each
Member. Such notice shall be given not less than ten (10), and no more than
sixty (60) days, before the date of the meeting. The Manager shall preside over
all meetings of the Members. Members may attend meetings in person, by proxy
given to another Member or via telephonic communication device, in which event,
such participation shall constitute presence at the meeting by such Member.
7.4 CONSENT. Any action required or permitted to be taken at a meeting
of the Members may be taken without a meeting, and without a vote, if consents
in writing, setting forth the action so taken, are signed by a majority in
interest of the Members who are entitled to vote. Every written consent shall
bear the date and signature of each Member who signs the consent. Prompt notice
of the taking of action without a meeting by less than unanimous written consent
shall be given to all Members who have not consented in writing to such action.
ARTICLE VIII
DISSOLUTION AND WINDING UP
8.1 DISSOLUTION. Subject to the restrictions set forth in the
Articles, the Company shall dissolve and its affairs shall be wound up on the
first to occur of the following events:
(a) at any time specified in the Articles or this Agreement;
(b) the disposition by the Company of all or substantially all of
its property and assets, unless all of the Members agree to continue the
Company;
(c) the entry of a final judgment, order or decree of a court of
competent jurisdiction adjudicating the Company to be bankrupt, and the
expiration of the period, if any, allowed by applicable law in which to
appeal therefrom;
(d) by the Consent of the Members; or
(e) any other event which, under this Agreement or the Act,
results in the dissolution of the Company.
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8.2 DISTRIBUTION ON LIQUIDATION. Upon the dissolution of the Company,
the Manager shall proceed to liquidate the assets of the Company and wind up its
affairs. A reasonable time shall be allowed for the orderly liquidation of the
Company's assets and the payment of its liabilities so as to enable the Manager
to minimize the normal losses attendant upon liquidation. The provisions of
Article IV relating to the allocation of profits and losses of the Company shall
be applicable during the period of liquidation. Proceeds of liquidation shall be
applied and distributed in the following order of priority:
(a) to the payment of any debts and liabilities of the Company,
including any Member loans to the Company;
(b) to the establishment of any reserves which the Manager deems
necessary to provide for any debts or liabilities of the Company. At the
expiration of a reasonable period of time as the Manager deem advisable,
the balance of such reserve funds remaining after payment of any such
debts, liabilities or contingencies, shall be distributed in accordance
with subparagraphs (c) and (d) below;
(c) to the Members on a pro rata basis, in accordance with the
Members' respective Capital Contributions, until the total amount of each
Member's Capital Contributions has been returned to each Member; and
(d) the balance of such proceeds, if any, shall be distributed to
the Members, on a pro rata basis, in accordance with their respective
Percentage Interests.
ARTICLE IX
BOOKS, RECORDS AND ACCOUNTING
9.1 BOOKS AND RECORDS. The Company shall maintain complete and
accurate books and records of the Company's business and affairs as required by
the Act and all books and records shall be kept at the Company's Registered
Office.
9.2 ACCOUNTING. The Company shall maintain the Company's books and
records in accordance with generally accepted accounting principles. The fiscal
and taxable year of the Company shall end on the Saturday closest to October 31.
All Members and their representatives shall have the right to inspect the
Company's books and records at any time upon reasonable notice.
9.3 MEMBER'S ACCOUNTS. Separate capital accounts shall be maintained
for each Member in accordance with the applicable requirements of the Internal
Revenue Code of 1986, as amended, or any replacement or successor law, and any
regulations promulgated thereunder, and in accordance with generally accepted
accounting practices.
9.4 TAX MATTERS MEMBER. The Manager is authorized to act as the "TAX
MATTERS MEMBER" under the Code and in any similar capacity under state or local
law.
ARTICLE X
MISCELLANEOUS PROVISIONS
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10.1 TERMS. Nouns and pronouns will be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the person
or persons, firm or entity may in the context require.
10.2 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will
constitute one and the same Agreement.
10.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and contains all of the agreements among said parties
with respect to the subject matter hereof.
10.4 SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
10.5 AMENDMENT. Subject to the restrictions set forth in the Articles,
this Agreement may be amended or revoked at any time by a written agreement
executed by all of the Members. No change or modification to this Agreement
shall be valid unless in writing and signed by all of the Members.
10.6 NOTICES. Any notice permitted or required under this Agreement
shall be conveyed to the party at the address reflected in the Company's books
and records and will be deemed to have been given, when deposited in the United
States mail, postage paid, or when delivered in person, or by courier or by
facsimile transmission.
10.7 BINDING EFFECT. Subject to the provisions of this Agreement
relating to assignment and transferability, this Agreement will be binding upon
and shall inure to the benefit of the parties, and their respective heirs,
personal representatives, successors and assigns.
10.8 ARTICLES; CERTIFICATES. The Members shall promptly execute and
file Articles of Organization and all other legally required fictitious names or
other applications, registrations, publications, certificates and affidavits
required to be filed with governmental authorities.
10.9 MEMBERS RELATIONSHIPS AMONG THEMSELVES. Nothing in this Agreement
shall be interpreted or construed to constitute any Member the agent of any
other Member, except as expressly provided in this Agreement, or to restrict the
Members from carrying on their own respective businesses or activities. The
Members shall not in any way be prohibited from or restricted in engaging or
owning an interest in any other business venture of any nature, including any
venture which might be competitive with the business of the Company.
10.10 CHOICE OF LAW. This Agreement shall be interpreted and construed
in accordance with the laws of the State of Michigan.
10.11 HEADINGS. The titles of the Articles and Sections have been
inserted as a matter of convenience for reference only and shall not control or
affect the meaning or construction of any of the terms or provisions of this
Agreement.
10.12 FACSIMILE SIGNATURES. A facsimile signature of any party to this
Agreement shall be deemed an original for all purposes.
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10.13 CONFLICT. To the extent of any conflict between the terms of the
Articles and this Agreement, the Articles shall control.
The parties have executed this Operating Agreement on the dates set
below their names, to be effective on the date first above written.
"MEMBERS"
PLASTIPAK HOLDINGS, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Plotkze
Its: Chief Financial Officer,
Vice President - Finance and Treasurer
XXXX MANAGEMENT, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President and Treasurer
"MANAGER"
XXXX MANAGEMENT, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President and Treasurer
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EXHIBIT A
PROPERTY DESCRIPTION
0000 Xxxxxxxxx Xxxxx Xxxxxxx, XxXxxxx, Xxxxxxx
0000 Xxxxxxxxx Xxxx., Xxxxx Xxxx, Xxxxxxx
0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx
0000 X. Xxxxxxxxxxx, Xxxxxxxxx, Xxxxxxxx
000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxxx
000 X. Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 Xxx Arbor Road, Plymouth, Michigan
0000 Xxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 Xxxxx Xxxxx #00, Xxxxxxx Xxxxxx, Xxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx
000 Xxxxxx Xxxx, Xxxx, Xxxx
000 X. Xxxxx Xxxx, Xxxxxx, Xxxx
0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx
000 Xxxxx Xxxxxx, Xxxxxxxx Xxxxx
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EXHIBIT B
MEMBERS' PERCENTAGE INTERESTS
Percentage
Member Interest
------ ----------
Plastipak Holdings, Inc. 99.50%
XXXX Management, Inc. 0.50%
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