EXHIBIT 3.8
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AMF WBCH LLC
A Delaware Limited Liability Company
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OPERATING AGREEMENT
Dated as of September 14, 2004
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS OPERATING AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION
UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER
RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
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THIS OPERATING AGREEMENT of AMF WBCH LLC (this "AGREEMENT"), dated as
of September ___, 2004, is adopted by, and executed and agreed to, for good and
valuable consideration, by AMF BCH Inc. (the "SOLE MEMBER").
WHEREAS, the Sole Member owned all of the issued and outstanding
shares of AMF WBCH Inc.;
WHEREAS, AMF WBCH Inc. filed a Certificate of Conversion with the
Delaware Secretary of State in order to effect a conversion from the corporate
form into a limited liability company; and
WHEREAS, the Sole Member desires to effect this Agreement to govern
the operations of AMF WBCH LLC (the "COMPANY").
NOW THEREFORE, the parties hereto certify and agree as follows:
1. NAME; FORMATION; CONTINUATION. The name of the Company shall be AMF WBCH
LLC, or such other name as the Board may from time to time hereafter designate.
The Company has been organized as a Delaware limited liability company by filing
the Certificate with the Secretary of State under and pursuant to the Delaware
Limited Liability Company Act (the "DELAWARE ACT").
2. DEFINITIONS; RULES OF CONSTRUCTION. In addition to terms otherwise
defined herein, the following terms are used herein as defined below:
"AFFILIATE" of any particular Person means (i) any other Person
controlling, controlled by, or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, by contract, or otherwise, (ii) if such Person is a
partnership, any partner thereof and (iii) without limiting the foregoing and
with respect only to CHS, any investment fund controlled by Code Xxxxxxxx &
Xxxxxxx LLC ("CHS").
"CERTIFICATE" shall mean the Company's certificate of formation filed
with the secretary of state of Delaware, as amended from time to time.
"EVENT OF WITHDRAWAL OF A MEMBER" means the death, retirement,
resignation, expulsion, bankruptcy or dissolution of a Member, the transfer or
attempted transfer by a Member of all or any portion of its interest in the
Company, or the occurrence of any other event that terminates the continued
membership of a Member in the Company.
"MANAGER" means a current manager on the Board, who, for purposes of
the Delaware Act, will be deemed a "manager" (as defined in the Delaware Act)
but will be subject to the rights, obligations, limitations and duties set forth
in this Agreement.
"MEMBERS" means the Sole Member and all other persons or entities
admitted as additional or substituted Members pursuant to this Agreement, so
long as they remain Members. Reference to a "MEMBER" means any one of the
Members.
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"OFFICERS" means each person designated as an officer of the Company
to whom authority and duties have been delegated pursuant to SECTION 7(f),
subject to any resolution of the Board appointing such person as an officer or
relating to such appointment.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity or any
department, agency, or political subdivision thereof.
"UNIT" means an interest of a Member in the Company representing a
fractional part of the interests of all Members and having the rights and
obligations specified with respect to Units in this Agreement.
3. PURPOSE. The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company organized under
the Delaware Act, as such business activities may be determined by the Members
from time to time.
4. OFFICES.
(a) The principal office of the Company, and such additional offices as the
Members may determine to establish, shall be located at such place or places
inside or outside the State of Delaware as the Members may designate from time
to time.
(b) The registered office of the Company required by the Delaware Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the Company) as the Members may designate from time to
time in the manner provided by law. The registered agent of the Company in the
State of Delaware shall be the initial registered agent named in the Certificate
or such other Person or Persons as the Members may designate from time to time
in the manner provided by law.
5. MEMBERS. The name and address of, and the number of Units held by, each
Member of the Company are as set forth on SCHEDULE I attached hereto, as the
same may be amended from time to time.
6. TERM. The Company shall continue until dissolved and terminated in
accordance with SECTION 12 of this Agreement.
7. MANAGEMENT OF THE COMPANY.
(a) NO MANAGEMENT BY MEMBERS. The Members shall not manage and control the
business and affairs of the Company, except for situations in which the approval
of the Members is required by non-waivable provisions of applicable law.
(b) AUTHORITY OF BOARD OF MANAGERS.
(i) Subject to the provisions of SECTION 7(b)(ii) of this
Agreement, (A) the powers of the Company shall be exercised by or under the
authority of, and the business and
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affairs of the Company shall be managed under the direction of, the board of
managers (the "BOARD") and (B) the Board may make all decisions and take all
actions for the Company not otherwise provided for in this Agreement, including
the following:
(A) entering into, making and performing contracts, agreements
and other undertakings binding the Company that may be necessary, appropriate or
advisable in furtherance of the purposes of the Company and making all decisions
and waivers thereunder;
(B) maintaining the assets of the Company in good order;
(C) collecting sums due the Company;
(D) opening and maintaining bank and investment accounts and
arrangements, drawing checks and other orders for the payment of money and
designating individuals with authority to sign or give instructions with respect
to those accounts and arrangements;
(E) to the extent that funds of the Company are available
therefor, paying debts and obligations of the Company;
(F) acquiring, utilizing for Company purposes and disposing of
any asset of the Company;
(G) hiring and employing executives, Officers, supervisors and
other personnel;
(H) selecting, removing and changing the authority and
responsibility of lawyers, accountants and other advisers and consultants;
(I) entering into guaranties on behalf of the Company's
Subsidiaries;
(J) obtaining insurance for the Company;
(K) determining distributions of cash and other property of the
Company;
(L) establishing reserves for commitments and obligations
(contingent or otherwise) of the Company; and
(M) establishing a seal for the Company.
(ii) The Board may act (A) by resolutions adopted at a meeting and
by written consents pursuant to SECTION 7(d), (B) by delegating power and
authority to committees pursuant to SECTION (7(e), and (C) by delegating power
and authority to any Officer pursuant to SECTION 7(f).
(iii) Each Member acknowledges and agrees that no Manager shall, as a
result of being a Manager (as such), be bound to devote all of his business time
to the affairs of the Company, and that he and his Affiliates do and will
continue to engage for their own account and
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for the accounts of others in other business ventures. In addition, to the
maximum extent permitted from time to time under the law of the State of
Delaware, the Company renounces any interest or expectancy of the Company in, or
in being offered an opportunity to participate in, business opportunities that
are from time to time presented to its Officers, Managers or Members, other than
those Officers, Managers or Members who are employees of the Company or any of
its Affiliates or Subsidiaries. No amendment or repeal of this SECTION 7(b)(iii)
shall apply to or have any effect on the liability or alleged liability of any
Officer, Manager or Member of the Company for or with respect to any
opportunities of which such Officer, Manager or Member becomes aware prior to
such amendment or repeal.
(iv) OFFICERS. The management of the business and affairs of the
Company by the Officers and the exercising of their powers shall be conducted
under the supervision of and subject to the approval of the Board.
(c) COMPOSITION AND ELECTION OF THE BOARD OF MANAGERS.
(i) NUMBER AND DESIGNATION. The number of Managers on the Board and
the composition of the Board shall initially be as set forth on SCHEDULE II
attached hereto. The Board of Managers thereafter shall be comprised of such
individuals as appointed by the Members.
(ii) TERM. Managers on the Board shall serve from their designation
in accordance with the terms hereof until their resignation, death or removal in
accordance with the terms hereof. Members of the Board need not be Members and
need not be residents of the State of Delaware. A person shall become a member
of the Board effective upon receipt by the Company at its principal place of
business of a written notice addressed to the Board (or at such later time or
upon the happening of some other event specified in such notice) of such
person's designation from the person or persons entitled to designate such
manager pursuant to SECTION 7(c)(i) above. A member of the Board may resign as
such by delivering his, her or its written resignation to the Company at the
Company's principal office addressed to the Board. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
(iii) REMOVAL. If an Executive Manager ceases to be employed by the
Company or its Affiliates or Subsidiaries, such Executive Manager shall be
removed promptly after such time from the Board and each committee thereof. The
Sole Member may remove any Manager at any time in its discretion upon notice
thereof to such Manager.
(iv) VACANCIES. In the event that any Manager for any reason ceases
to serve as a member of the Board, the resulting vacancy on the Board may be
filled by the remaining Managers of the Board then in office, though less than a
quorum, or by a sole remaining Manager.
(v) COMPENSATION OF MANAGERS. Except as approved by the Sole
Member, Managers shall receive no compensation for serving in such capacity.
(vi) RELIANCE BY THIRD PARTIES. Any Person dealing with the Company,
other than a unitholder, may rely on the authority of the Board (or any Officer
authorized by the Board) in taking any action in the name of the Company without
inquiry into the provisions of
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this Agreement or compliance herewith, regardless of whether that action
actually is taken in accordance with the provisions of this Agreement. Every
agreement, instrument or document executed by the Board (or any Officer
authorized by the Board) in the name of the Company with respect to any business
or property of the Company shall be conclusive evidence in favor of any Person
relying thereon or claiming thereunder that (i) at the time of the execution or
delivery thereof, this Agreement was in full force and effect, (ii) such
agreement, instrument or document was duly executed according to this Agreement
and is binding upon the Company and (iii) the Board or such Officer was duly
authorized and empowered to execute and deliver such agreement, instrument or
document for and on behalf of the Company.
(d) BOARD MEETINGS AND ACTIONS BY WRITTEN CONSENT.
(i) QUORUM; VOTING. A majority of the total number of Managers then
serving on the Board (i.e., excluding any vacancies on the Board) must be
present in order to constitute a quorum for the transaction of business of the
Board, and except as otherwise provided in this Agreement, the act of a majority
of the Managers present at a meeting of the Board at which a quorum is present
shall be the act of the Board. A Manager who is present at a meeting of the
Board at which action on any matter is taken shall be presumed to have assented
to the action unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to such action with the person
acting as secretary of the meeting before the adjournment thereof or shall
deliver such dissent to the Company immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a Manager who voted in favor
of such action.
(ii) PLACE; ATTENDANCE. Meetings of the Board may be held at such
place or places as shall be determined from time to time by resolution of the
Board. At all meetings of the Board, business shall be transacted in such order
as shall from time to time be determined by resolution of the Board. Attendance
of a Manager at a meeting shall constitute a waiver of notice of such meeting,
except where a Manager attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully
called or convened.
(iii) MEETING IN CONNECTION WITH MEMBER MEETING. In connection with
any meeting of Members, the Managers may, if a quorum is present, hold a meeting
for the transaction of business immediately after and at the same place as such
meeting of the Members. Notice of such meeting at such time and place shall not
be required.
(iv) TIME, PLACE AND NOTICE. Regular meetings of the Board shall be
held at such times and places as shall be designated from time to time by
resolution of the Board. Notice of such meetings shall not be required.
(v) SPECIAL MEETINGS. Special meetings of the Board may be called
by any Manager on at least 24 hours' notice to each other Manager. Such notice
need not state the purpose or purposes of, nor the business to be transacted at,
such meeting, except as may otherwise be required by law or provided for in this
Agreement.
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(vi) CHAIRMAN AND VICE CHAIRMAN. The Board shall designate one of
the Managers to serve as Chairman and a different Manager to serve as Vice
Chairman. The Chairman shall preside at all meetings of the Board. If the
Chairman is absent at any meeting of the Board, the Vice Chairman shall preside
over such Board meeting. If the Chairman and Vice Chairman are absent, the
Managers present shall designate a member to serve as interim chairman for that
meeting. Neither the Chairman nor Vice Chairman, except in their capacity as an
Officer, shall have the authority or power to act for or on behalf of the
Company, to do any act that would be binding on the Company or to make any
expenditure or incur any obligation on behalf of the Company or authorize any of
the foregoing.
(vii) ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any action
permitted or required by the Delaware Act, the Certificate or this Agreement to
be taken at a meeting of the Board or any committee designated by the Board may
be taken without a meeting if a consent in writing, setting forth the action to
be taken, is signed by all the Managers or members of such committee, as the
case may be. Such consent shall have the same force and effect as a unanimous
vote at a meeting and may be stated as such in any document or instrument filed
with the Secretary of State of Delaware, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Board or any
such committee, as the case may be. Subject to the requirements of the Delaware
Act, the Certificate or this Agreement for notice of meetings, unless otherwise
restricted by the Certificate, the Managers or members of any committee
designated by the Board may participate in and hold a meeting of the Board or
any committee, as the case may be, by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
(e) COMMITTEES; DELEGATION OF AUTHORITY AND DUTIES.
(i) COMMITTEES; GENERALLY. The Board may, from time to time,
designate one or more committees. Any such committee, to the extent provided in
the enabling resolution or in the Certificate or this Agreement, shall have and
may exercise all of the authority of the Board. At every meeting of any such
committee, the presence of a majority of all the members thereof shall
constitute a quorum, and the affirmative vote of a majority of the members
present shall be necessary for the adoption of any resolution. The Board may
dissolve any committee at any time, unless otherwise provided in the Certificate
or this Agreement.
(ii) AUDIT COMMITTEE. The Board may establish an audit committee to
select the Company's independent accountants and to review the annual audit of
the Company's financial statements conducted by such accountants.
(iii) DELEGATION; GENERALLY. The Board may, from time to time,
delegate to one or more Persons (including any Manager or Officer) such
authority and duties as the Board may deem advisable. The Board also may assign
titles (including chairman, chief executive officer, president, vice president,
secretary, assistant secretary, treasurer and assistant treasurer) to any
Manager, Member or other individual and may delegate to such Manager, Member or
other
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individual certain authority and duties. Any number of titles may be held by the
same Manager, Member or other individual. Any delegation pursuant to this
SECTION 7(e)(iii) may be revoked at any time by the Board.
(iv) THIRD-PARTY RELIANCE. Any Person dealing with the Company,
other than a Member, may rely on the authority of any Officer in taking any
action in the name of the Company without inquiry into the provisions of this
Agreement or compliance herewith, regardless of whether that action actually is
taken in accordance with the provisions of this Agreement.
(f) OFFICERS.
(i) DESIGNATION AND APPOINTMENT. The Board may (but need not), from
time to time, designate and appoint one or more persons as an Officer of the
Company. No Officer need be a resident of the State of Delaware, a Member or a
Manager. Any Officers so designated shall have such authority and perform such
duties as the Board may, from time to time, delegate to them. The Board may
assign titles to particular Officers. Unless the Board otherwise decides, if the
title is one commonly used for officers of a business corporation formed, the
assignment of such title shall constitute the delegation to such Officer of the
authority and duties that are normally associated with that office, subject to
any specific delegation of authority and duties made to such Officer by the
Board pursuant to the terms hereof. Each Officer shall hold office until such
Officer's successor shall be duly designated and shall qualify or until such
Officer's death or until such Officer shall resign or shall have been removed in
the manner hereinafter provided. Any number of offices may be held by the same
individual. The salaries or other compensation, if any, of the Officers and
agents of the Company shall be fixed from time to time by the Board. The names
of the initial Officers of the Company are set forth on SCHEDULE III attached
hereto. Thereafter, the Officers shall be as appointed by the Board of Managers.
(ii) RESIGNATION. Any Officer (subject to any contract rights
available to the Company, if applicable) may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Board.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation. Any Officer may be removed as
such, either with or without cause, by the Board in its discretion at any time;
PROVIDED, however, that such removal shall be without prejudice to the contract
rights, if any, of the individual so removed. Designation of an Officer shall
not of itself create contract rights. Any vacancy occurring in any office of the
Company may be filled by the Board.
(iii) DUTIES OF OFFICERS; GENERALLY. The Officers, in the performance
of their duties as such, shall owe to the Members duties of loyalty and due care
of the type owed by the officers of a corporation to such corporation and its
stockholders under the laws of the State of Delaware. The following Officers, to
the extent such Officers have been appointed by the Board, shall have the
following duties:
(A) CHIEF EXECUTIVE OFFICER. Subject to the powers of the
Board, the chief executive officer of the Company shall be in the general and
active charge of the entire business and affairs of the Company, and shall be
its chief policy-making Officer. The president, chief
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financial officer and each other senior officer of the Company shall report
directly to the chief executive officer. The chief executive officer shall see
that all orders and resolutions of the Board are carried into effect. The chief
executive officer shall have such other powers and perform such other duties as
may be prescribed by the Board.
(B) PRESIDENT. The president shall, subject to the powers of
the Board and the chief executive officer, be the chief administrative officer
of the Company and shall have general charge of the business, affairs and
property of the Company, and control over its Officers (other than the chief
executive officer), agents and employees. The president shall see that all
orders and resolutions of the Board and the chief executive officer are carried
into effect. He or she shall be responsible for the employment of employees,
agents and Officers (other than the chief executive officer) as may be required
for the conduct of the business and the attainment of the objectives of the
Company. He or she shall have authority to suspend or to remove any employee,
agent or Officer (other than the chief executive officer) of the Company and, in
the case of the suspension for cause of any such Officer, to recommend to the
Board what further action should be taken. In the absence of the president, his
or duties shall be performed and his or her authority may be exercised by the
chief executive officer. In the absence of the president and the chief executive
officer, the duties of the president shall be performed and his or her authority
may be exercised by such Officer as may have been designated as the most senior
officer of the Company. The president shall have such other powers and perform
such other duties as may be prescribed by the chief executive officer or the
Board.
(C) CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
Company, including accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital and Units. The chief financial officer shall have the
custody of the funds and securities of the Company, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company, and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board. The chief financial officer shall have such other powers and perform such
other duties as may be prescribed by the chief executive officer or the Board.
(D) VICE PRESIDENT(S). The vice president(s) shall perform such
duties and have such other powers as the chief executive officer, the president,
the chief operating officer or the Board may from time to time prescribe, and
may have such further denominations as "Executive Vice President," "Senior Vice
President," "Assistant Vice President," and the like.
(E) SECRETARY.
(1) The secretary shall attend all meetings of the Board
and shall record all the proceedings of the meetings in a book to be kept for
that purpose, and shall perform like duties for the standing committees of the
Board when required.
(2) The secretary shall keep all documents as may be
required under the Delaware Act or this Agreement. The secretary shall perform
such other duties and have such other authority as may be prescribed elsewhere
in this Agreement or from time to time
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by the Board. The secretary shall have the general duties, powers and
responsibilities of a secretary of a corporation.
(g) If the Board chooses to appoint an assistant secretary or assistant
secretaries, the assistant secretaries, in the order of their seniority, in the
absence, disability or inability to act of the secretary, shall perform the
duties and exercise the powers of the secretary, and shall perform such other
duties as the Board may from time to time prescribe.
8. CAPITAL CONTRIBUTIONS. In accordance with the provisions of the Delaware
Act, the Former Members made contributions of capital to the Company in exchange
for the Units. The Members may, but shall not be required to, make additional
contributions to the capital of the Company; PROVIDED, THAT, no additional
contributions to the capital of the Company shall be made without the written
consent of the Members. Persons or entities hereafter admitted as Members of the
Company shall make such contributions of cash (or promissory obligations),
property or services to the Company as shall be determined by the Members at the
time of each such admission. The Company shall issue certificates to the Members
representing the Units held by each Member. Pursuant to Section 8-103(c) of the
Uniform Commercial Code, the interests represented by the Units are securities
governed by Article 8 of the Uniform Commercial Code.
9. ADDITIONAL MEMBERS. The Sole Member shall have the sole right to admit
additional Members upon such terms and conditions, at such time or times, and
for such capital contributions as the Sole Member shall in its sole discretion
determine. In connection with any such admission, the Sole Member shall amend
SCHEDULE I hereof to reflect the name, address, and capital contribution of the
additional Member.
10. DISTRIBUTIONS. Distributions of cash or other assets of the Company
shall be made at such times and in such amounts as the Sole Member may
determine. Unless the Sole member determines otherwise, distributions shall be
made to (and profits and losses shall be allocated among) Members PRO RATA in
accordance with the number of outstanding Units held by each Member immediately
prior to a distribution. Members that withdraw from the Company shall be
entitled to such a PRO RATA distribution relating to any capital previously
contributed and not withdrawn from the Company and the rights to such
distributions from the Company shall inure to the benefit of the withdrawing
Members' legal representative and assigns.
11. DISSOLUTION. Subject to the provisions of SECTION 13 of this Agreement,
the Company shall be dissolved and its affairs wound up and terminated upon the
first to occur of the following:
(a) the determination of the Members to dissolve the Company; or
(b) the occurrence of an Event of Withdrawal of a Member or any other event
causing a dissolution of the Company under Section 18-801 of the Delaware Act.
12. CONTINUATION OF THE COMPANY. Notwithstanding the provisions of SECTION
12(b) hereof, the occurrence of an Event of Withdrawal of a Member shall not
dissolve the Company if within ninety (90) days after the occurrence of such
event of withdrawal, the business of the Company is continued by the agreement
of all remaining Members.
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13. LIMITATION ON LIABILITY. The debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member of the Company
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member.
14. EXCULPATION AND INDEMNIFICATION.
(a) EXCULPATION. No duly appointed officer or manager of the Company shall
be liable to any other officer, manager, the Company or to any member for any
loss suffered by the Company unless such loss is caused by such Person's gross
negligence, willful misconduct (including acts in knowing contravention of
written resolution of the Members), violation of law or material breach of this
Agreement. The officers and managers of the Company shall not be liable for
errors in judgment or for any acts or omissions that do not constitute gross
negligence, willful misconduct, violation of law or material breach of this
Agreement. Any officer or manager of the Company may consult with counsel and
accountants in respect of the Company's affairs, and provided such Person acts
in good faith reliance upon the advice or opinion of such counsel or
accountants, such Person shall not be liable for any loss suffered by the
Company in reliance thereon.
(b) RIGHT TO INDEMNIFICATION. Subject to the limitations and conditions as
provided in this SECTION 15, each Person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative hereinafter a "PROCEEDING"), or any appeal in such a Proceeding or
any inquiry or investigation that could lead to such a Proceeding, by reason of
the fact that he or she, or a Person of whom he or she is the legal
representative, is or was a Member, manager or officer of the Company, or while
a member, manager or officer of the Company is or was serving at the request of
the Company as a manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise shall be
indemnified by the Company to the fullest extent permitted by the Delaware Act,
as the same exist or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted the Company to provide
prior to such amendment) against judgments, penalties (including excise and
similar taxes and punitive damages), fines, settlements and reasonable expenses
(including attorneys' fees) actually incurred by such Person in connection with
such Proceeding, and indemnification under this SECTION 14 shall continue as to
a Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity hereunder. The rights granted pursuant to this SECTION 14
shall be deemed contract rights, and no amendment, modification or repeal of
this SECTION 14 shall have the effect of limiting or denying any such rights
with respect to actions taken or Proceedings arising prior to any amendment,
modification or repeal. It is expressly acknowledged that the indemnification
provided in this SECTION 14 could involve indemnification for negligence or
under theories of strict liability.
(c) ADVANCE PAYMENT. Reasonable expenses incurred by a Person of the type
entitled to be indemnified under SECTION 14(b) who was, is or is threatened to
be made a named defendant or respondent in a Proceeding shall be paid by the
Company in advance of the final disposition
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of the Proceeding unless otherwise determined by the Members in the specific
case upon receipt of an undertaking by or on behalf of such Person to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Company.
(d) INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Company, by adoption of a
resolution of the Members, may indemnify and advance expenses to an employee or
agent of the Company to the same extent and subject to the same conditions under
which it may indemnify and advance expenses to Persons who are not or were not
managers or officers of the Company but who are or were serving at the request
of the Company as a manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in such a capacity or arising
out of his status as such a Person to the same extent that it may indemnify and
advance expenses to managers and officers under this SECTION 14.
(e) APPEARANCE AS A WITNESS. Notwithstanding any other provision of this
SECTION 14, the Company shall pay or reimburse reasonable out-of-pocket expenses
incurred by a manager or officer of the Company in connection with his
appearance as a witness or other participation in a Proceeding at a time when he
is not a named defendant or respondent in the Proceeding.
(f) NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this SECTION 14 shall not be
exclusive of any other right which a manager, officer or other Person
indemnified pursuant to SECTION 14(b) may have or hereafter acquire under any
law (common or statutory), provision of the Certificate of Formation of the
Company or this Agreement, agreement, vote of unitholders or disinterested
managers or otherwise.
(g) NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this SECTION 14 shall not be
exclusive of any other right which a manager, officer or other Person
indemnified pursuant to SECTION 14(b) may have or hereafter acquire under any
law (common or statutory), provision of the Certificate of Formation of the
Company or this Agreement, agreement, vote of unitholders or disinterested
managers or otherwise.
15. AMENDMENTS. This Agreement may be amended or waived only upon the prior
written consent of the Members.
16. NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (i) delivered personally to
the recipient, (ii) sent to the recipient by reputable express courier service
(charges prepaid), (iii) mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iv) telecopied to the
recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if telecopied before 5:00 p.m. Chicago,
Illinois time on a business day, and otherwise on the next business day. Such
notices, demands and other communications shall be sent to the to the Company at
the addresses indicated below and to any other recipient at the address
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indicated on the schedules hereto, or at such address or to the attention of
such other Person as the recipient party has specified by prior written notice
to the sending party:
AMF WBCH LLC
c/o AMF Bowling Worldwide Inc.
0000 XXX Xxxxx
Xxxxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH COPIES TO:
Code Xxxxxxxx & Xxxxxxx LLC
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
18. REMEDIES. The Company and each Member shall be entitled to enforce
their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and each Stockholder may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
19. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF
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THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES
HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT AND/OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
20. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. Whenever required by the context, any pronoun used in
this Agreement shall include the corresponding masculine, feminine, or neuter
forms, and the singular form of nouns, pronouns, and verbs shall include the
plural and vice versa. The use of the word "INCLUDING" in this Agreement shall
be, in each case, by way of example and without limitation. The use of the words
"OR," "EITHER," and "ANY" shall not be exclusive. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and, if applicable, hereof.
21. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
22. DELIVERY BY FACSIMILE. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
23. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Members and any subsequent
holders of Units and the respective successors and assigns of each of them, so
long as they hold Units.
24. COUNTERPARTS. This Agreement may be executed in separate counterparts
(including by means of telecopied signature pages) each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
25. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any
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applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
26. ENTIRE AGREEMENT. This Agreement, those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Limited Liability
Company Agreement on the day and year first above written.
AMF BCH INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Its: CFO
----------------------------------
SCHEDULE I
Member No. of Units
------ ------------
AMF BCH Inc.
0000 XXX Xxxxx 000
Xxxxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer and General
Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Code Xxxxxxxx & Xxxxxxx LLC
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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SCHEDULE II
The initial Board of Managers shall be as follows:
1. Xxxxxx X. XxXxxxxxx
2. W. Xxxxxx Xxxxxxx, Xx.
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SCHEDULE III
The initial Officers of the Company shall be as follows:
President/CFO/Treasurer/Assistant Xxxxxxxxxxx X. Xxxxxx
Secretary
Secretary/General Counsel Xxxxxx X. XxXxxxxxx
Controller/Assistant Secretary Xxxxxxx X. Xxxxxxxxxxx
Vice President/Assistant Secretary W. Xxxxxx Xxxxxxx, Xx.
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