Exhibit T3B-28
OPERATING AGREEMENT OF
SOUTH SHORE DEVELOPMENT, LLC
A DELAWARE LIMITED LIABILITY COMPANY
EFFECTIVE AS OF APRIL 23, 1999
AS AMENDED AS OF MAY 21, 2001
ARTICLE I
Definitions
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1.01. Definitions. The following terms used in this Operating Agreement
shall have the following meanings (unless otherwise expressly provided herein):
a. "Book Value" shall mean, with respect to any Company property,
the Company's adjusted basis for federal income tax purposes, adjusted from time
to time to reflect the adjustments required or permitted by Treas. Reg. (S)
1.704-1 (b)(2)(iv)(d)-(g).
b. "Certificate of Formation" shall mean the Certificate of
Formation of SOUTH SHORE DEVELOPMENT, LLC as filed with the Secretary of State
as the same may be amended from time to time.
c. "Capital Account" as of any given date shall mean the Capital
Contribution to the Company by a Member as adjusted up to the date in question
pursuant to Article VIII.
d. "Capital Contribution" shall mean any contribution to the
capital of the Company in cash or property by a Member whenever made. "Initial
Capital Contribution" shall mean the initial contribution to the capital of the
Company pursuant to this Operating Agreement.
e. "Capital Interest" shall mean the proportion that a Member's
positive Capital Account bears to the aggregate positive Capital Accounts of all
Members whose Capital Accounts have positive balances as may be adjusted from
time to time.
f. "Company" shall refer to SOUTH SHORE DEVELOPMENT, LLC, Limited
Liability Company.
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g. "Distribution Cash" means all cash, revenues, and funds
received by the Company from Company operations, less the sum of the following
to the extent paid or set aside by the Company:
i. All principal and interest payments on indebtedness of the Company
and all other sums paid to lenders;
ii. All cash expenditures incurred incident to the normal operation of
the Company's business;
iii. Such Reserves as the Manager deem reasonably necessary to the proper
operation of the Company's business.
h. "Economic Interest" shall mean a Member's or Economic Interest
Owner's share of one or more of the Company's Net Profits, Net Losses, and
distributions of the Company's assets pursuant to this Operating Agreement and
the Delaware Act, but shall not include any right to participate in the
management or affairs of the Company, including the right to vote on, consent
to, or otherwise participate in any decision of the Member or Manager.
i. "Economic Interest Owner" shall mean the owner of an Economic
Interest who is not a Member.
j. "Entity" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association, or any foreign trust, or foreign
business organization.
k. "Fiscal Year' shall mean the Company's fiscal year, which shall
be the year ended October 31.
l. "IRC" shall mean the Internal Revenue Code of 1986 or
corresponding provisions of subsequent superseding federal revenue laws.
m. "Majority Interest" shall mean one or more Interests of Members
which taken together exceed 50 per cent of the aggregate of all Capital
Interests.
n. "Manager' shall mean one or more managers. Specifically,
"Manager' shall mean Harnischfeger Industries, Inc., and any authorized officer
thereof. References to the Manager in the singular or as him, her, it, itself,
or other like references shall also, when the context so requires, be deemed to
include the plural or the masculine or feminine reference, as the case may be.
o. "Member" shall mean each of the parties who executes a
counterpart of this Operating Agreement as a Member and each of the parties who
may hereafter become
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Members. To the extent a Manager has purchased Membership Interests in the
Company, he will have all the rights of a Member with respect to such Membership
Interests, and the term "Member' as used in this Operating Agreement shall
include a Manager to the extent he has purchased such Membership Interests in
the Company. If a Person is a Member immediately before the purchase or other
acquisition by such Person of an Economic Interest, that Person shall have all
the rights of a Member with respect to the purchased or otherwise acquired
Membership Interest or Economic Interest as the case may be.
p. "Membership Interest" shall mean a Member's entire interest in
the Company including the Member's Economic Interest and the right to
participate in the management of the business and affairs of the Company,
including the right to vote on, consent to, or otherwise participate in any
decision or action of or by the Member granted pursuant to this Operating
Agreement and the Delaware Act.
q. "Net Profits" and "Net Losses" shall mean, for each Fiscal Year
or other period, an amount equal to the Company's taxable income or loss for
such period, adjusted as follows:
i. any income of the Company that is exempt from federal income tax
shall be added to such taxable income or loss;
ii. any expenditures of the Company that are not deductible for federal
income tax purposes and not chargeable to capital account shall be
subtracted from such taxable income or loss;
iii. gain or loss from the taxable disposition of any asset of the
Company shall be measured by reference to the Book Value of such
assets rather than by reference to the adjusted tax basis of such
asset; and
iv. depreciation, amortization or other cost recovery deductions with
respect to any asset shall be measured by reference to the Book
Value of such asset rather than by reference to the adjusted tax
basis of such asset.
r. "Operating Agreement" shall mean this Operating Agreement as
originally executed and as amended from time to time.
s. "Persons" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors, and assigns of the
"Person" when the context so permits.
t. "Reserves" shall mean, for any fiscal period, funds set aside
or amounts allocated during such period to reserves that shall be maintained in
amounts deemed sufficient by
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the Manager for working capital and to pay taxes, insurance, debt service, or
other costs or expenses incident to the ownership or operation of the Company's
business.
u. "Delaware Act" shall mean the Delaware Limited Liability
Company Act.
v. "Treasury Regulations" shall include proposed, temporary, and
final regulations promulgated under the IRC in effect as of the date of filing
the Certificate of Formation and the corresponding sections of any regulations
subsequently issued that amend or supersede those regulations.
ARTICLE II
Formation of Company
2.01 Formation. On February 2, 1999, Xxxx X. Xxxxxxx organized a Delaware
Limited Liability Company by executing and delivering Certificate of Formation
to the Delaware Secretary of State in accordance with and pursuant to the
Delaware Act.
2.02 Name. The name of the Company is SOUTH SHORE DEVELOPMENT, LLC.
2.03 Principal Place of Business. The principal place of business of the
Company within the State of Delaware shall be 00 Xxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxx, Xxxxxxxx. The Company may locate its places of business and registered
office at any other place or places as the Manager may from time to time deem
advisable.
2.04 Registered Office and Registration Agent. The Company's initial
registered office shall be at the office of its registered agent at Lexis
Document Services, Inc. and the name of its initial registered agent at such
address shall be Lexis Document Services, Inc. The registered office and
registered agent may be changed from time to time by filing the address of the
new registered office and/or name of the new registered agent with the Delaware
Secretary of State pursuant to the Delaware Act.
2.05 Term. The term of the Company shall continue until the Company is
dissolved in accordance with either the provisions of this Operating Agreement
or the Delaware Act.
ARTICLE III
Business of Company
3.01 Permitted Businesses. The business of the Company shall be:
a. To accomplish any lawful business whatsoever, or which shall at
any time appear conducive to or expedient for the protection or benefit of the
Company and its assets.
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b. To exercise all other powers necessary to or reasonably
connected with the Company's business that may be legally exercised by limited
liability companies under the Delaware Act.
c. To engage in all activities necessary, customary, convenient, or
incident to any of the foregoing.
ARTICLE IV
Names and Address of Member
The name and address of the Member is as follows:
Name Address
HARNISCHFEGER INDUSTRIES, INC. X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
ARTICLE V
Rights and Duties of Manager
5.01 Management. The business and affairs of the Company shall be managed
by the Member/Manager, Harnischfeger Industries, Inc. The Manager shall direct,
manage, and control the business of the Company to the best of his ability.
Except for situations in which the approval of the Member is expressly required
by this Operating Agreement or by nonwaivable provisions of applicable law, the
Manager shall have full and complete authority, power, and discretion to manage
and control the business, affairs, and properties of the Company, to make all
decisions regarding those matters and to perform any and all other acts or
activities customary or incident to the management of the Company's business. At
any time when there is more than one Manager, any one Manager may take any
action permitted to be taken by the Manager, unless the approval of more than
one of the Managers is expressly required pursuant to this Operating Agreement
or the Act.
5.02 Number, Tenure, and Qualifications. The Company shall initially have
one Manager. The number of Managers of the Company shall be fixed from time to
time by the affirmative vote of Members holding at least two-thirds of all
Capital Interests in the Company's capital, but in no instance shall there be
less than one Manager. Each Manager shall hold office until the next annual
meeting of Members or until a successor shall have been elected and qualified.
Managers shall be elected by the affirmative vote of Members holding at least a
Majority Interest Managers need not be residents of the State of Delaware or
Members of the Company.
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5.03 Certain Powers of Manager. Without limiting the generality of section
5.01 above, the Manager shall have power and authority, on behalf of the
Company:
a. To acquire property from any Person as the Manager may determine.
The fact that a Member is directly or indirectly affiliated or connected with
any such person shall not prohibit the manager from dealing with that Person;
b. To borrow money for the Company from banks, other lending
institutions, the manager, Member, or affiliates of the Manager or Member on
such terms as the Manager deems appropriate, and in connection therewith, to
hypothecate, encumber, and grant security interests in the assets of the Company
to secure repayment of the borrowed sums. No debt shall be contracted or
liability incurred by or on behalf of the Company except by the Manager, or to
the extent permitted under the Delaware Act, by agents or employees of the
Company expressly authorized to contract such debt or incur such liability by
the Manager;
c. To purchase liability and other insurance to protect the
Company's property and business;
d. To hold and own any Company real and/or personal properties in
the name of the Company;
e. To invest any Company funds temporarily (by way of example but
not limitation) in time deposits, short-term governmental obligations,
commercial paper, or other investments;
f. Upon the affirmative vote of the Member holding at least two-
thirds of all Capital Interests, to sell or otherwise dispose of all or
substantially all of the assets of the Company as part of a single transaction
or plan so long as that disposition is not in violation of or a cause of a
default under any other agreement to which the Company may be bound, provided,
however, that the affirmative vote of the Member shall not be required with
respect to any sale or disposition of the Company's assets in the ordinary
course of the Company's business;
g. To execute on behalf of the Company all instruments and
documents, including, without limitation: checks; drafts; notes Sand other
negotiable instruments; mortgages, or deeds of trust; security agreements;
financing statements; documents providing for the acquisition, mortgage or
disposition of the Company's property; assignments; bills of sale; leases;
partnership agreements; operating agreements of other limited liability
companies; and any other instruments or documents which in the opinion of the
Manager are necessary to the business of the Company;
h. To employ accountants, legal counsel, managing agents, or other
experts to perform services for the Company and to compensate them from Company
funds;
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i. To enter into any and all other agreements on behalf of the
Company, with any other Person for any purpose, in such forms as the Manager may
approve;
j. To do and perform all other acts as may be necessary or
appropriate to the conduct of the Company's business; and
k. Unless authorized to do so by this Operating Agreement or by a
Manager or Managers of the Company, no attorney-in-fact, employee, or other
agent of the Company shall have any power or authority to bind the Company in
any way, to pledge its credit or to render it liable pecuniarily for any
purpose. No Member shall have any power or authority to bind the Company unless
the Member has been authorized by the Manager to act as an agent of the Company
in accordance with the previous sentence.
5.04 Liability for Certain Acts. The Manager shall perform his Managerial
duties in good faith, in a manner they reasonably believe to be in the best
interest of the Company, and with such care as an ordinarily prudent person in a
like position would use under similar circumstances. A Manager who so performs
the duties of Manager shall not have any liability by reason of being or having
been a Manager of the Company. A Manager does not, in any way, guarantee the
return of the Member's Capital Contributions or a profit for the Member from the
operations of the Company. A Manager shall not be liable to the Company or to
any Member for any loss or damage sustained by the Company or any Member, unless
the loss or damage shall have been the result of fraud, deceit, gross
negligence, misconduct, or a wrongful taking by the Manager.
5.05 Bank Accounts. The Manager may from time to time open bank accounts
in the name of the Company, and the Manager shall be the sole signatory thereon,
unless the Manager determines otherwise.
5.06 Indemnity of the Manager, Employees, and other Agents. To the maximum
extent permitted under the Delaware Act, the Company shall indemnify the
Manager, and its other employees and agents who are not Managers, against any
and all claims which arise out of their duties in such capacities.
5.07 Resignation. Any Manager of the Company may resign at any time by
giving written notice to the Member of the Company. The resignation of any
Manager shall take effect upon receipt of that notice or at such later time as
shall be specified in the notice; and, unless otherwise specified in the notice,
the acceptance of the resignation shall not be necessary to make it effective.
5.08 Removal. At a meeting called expressly for that purpose, all or any
lesser number of Managers may be removed at any time, with or without cause, by
the affirmative vote of Members holding a Majority Interest.
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5.09 Vacancies. Any vacancy occurring for any reason in the number of
Managers of the Company shall be filled by the affirmative vote of Members
holding a Majority Interest at an annual meeting or at a special meeting called
for that purpose or by the unanimous written consent.
a. Any Manager's position to be filled by reason of an increase in
the number of Managers shall be filled by the affirmative vote of Members
holding a Majority Interest at an annual meeting or at a special meeting called
for that purpose or by the Member's unanimous written consent.
b. A Manager elected to fill a vacancy shall be elected for the
unexpired term of the Manage' s predecessor in office and shall hold office
until the expiration of that term and until the Manager's successor shall be
elected and shall qualify or until the Manager's earlier death, resignation, or
removal.
c. A Manager chosen to fill a position resulting from an increase in
the number of Managers shall hold office until the next annual meeting of
Members and until a successor shall be elected and shall qualify, or until the
Manager's earlier death, resignation, or removal.
5.10 Salaries. The salaries and other compensation of the Manager shall be
fixed from time to time by an affirmative vote of Members holding at least a
Majority Interest, and no Manager shall be prevented from receiving that salary
because the Manager is also a Member of the Company.
ARTICLE VI
Rights and Obligations of Members
6.01 Limitation of Liability. Each Member's liability shall be limited as
set forth in this Operating Agreement, the Delaware Act, and other applicable
law.
6.02 Company Debt Liability. A Member will not be personally liable for
any debts or losses of the Company beyond the Member's respective Capital
Contributions and any obligation of the Member under section 8.01 or 8.02 below
to make Capital Contributions, except as provided in section 6.07 below or as
otherwise required by law.
6.03 List of Members. Upon written request of any Member, the Manager
shall provide a list showing the names, addresses, and Membership Interests and
Economic Interests of all Members.
6.04 Approval of Sale of All Assets. The Member shall have the right, by
the affirmative vote of Members holding at least two-thirds of all Capital
Interests, to approve the
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sale, exchange, or other disposition of all, or substantially all, of the
Company's assets (other than in the ordinary course of the Company's business)
which is to occur as part of a single transaction or plan.
6.05 Company Books. Upon reasonable request, each Member and Economic
Interest Owner shall have the right, during ordinary business hours, to inspect
and copy those Company documents at the requesting Member's and Economic
Interest Owner's expense.
6.06 Priority and Return of Capital. Except as may be expressly provided
in Article IX, no Member or Economic Interest Owner shall have priority over any
other Member or Economic Interest Owner, either for the return of Capital
Contributions or for Net Profits, Net Losses, or distributions; provided that
this section shall not apply to loans (as distinguished from Capital
Contributions) which a Member has made to the Company.
6.07 Liability of a Member to the Company. A Member who rightfully
receives the return in whole or in part of its Capital Contribution is
nevertheless liable to the Company only to the extent now or hereafter provided
by the Delaware Act and Section 8.03(e).
ARTICLE VII
Meetings of Members
7.01 Annual Meeting. The annual meeting of the Member shall be held on the
first Monday in February or at such other time as shall be determined by
resolution of the Member, commencing with the year 2000, for the purpose of the
transaction of such business as may come before the meeting.
7.02 Special Meetings. Special meetings of the Member, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Manager
or by any Member or Members holding at least 10 per cent of the Capital
Interests.
7.03 Place of Meetings. The Member may designate any place, either within
or outside the State of Delaware as the place of meeting for any meeting of the
Member. If no designation is made. or if a special meeting be otherwise called,
the place of meeting shall be the principal executive office of the Company in
the State of Delaware. The Member may attend any meeting in person, by
telephone, or by video conferencing.
7.04 Notice of Meetings. Except as provided in section 7.05 below, written
notice stating the place, day, and hour of the meeting and the purpose or
purposes for which the meeting is called shall be delivered no fewer than 10 nor
more than 50 days before the date of the meeting, either personally or by mail,
by or at the direction of the Manager or person calling the meeting, to each
Member entitled to vote at the meeting. If mailed, the notice shall be deemed to
be delivered two calendar days after being deposited in the United States mail,
addressed to the
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Member at the Member's address as it appears on the books of the Company, with
postage thereon prepaid.
7.05 Meeting of All Members. If all of the Members shall meet at any time
and place, either within or outside of the State of Delaware, and they consent
to the holding of a meeting at that time and place, then the meeting shall be
valid without call or notice, and at the meeting lawful action may be taken.
7.06 Record Date. For the purpose of determining Members entitled to
notice of or to vote at any meeting of Members or any adjournment of the
meeting, or Members entitled to receive payment of any distribution, or to make
a determination of Members for any other purpose, the date on which notice of
the meeting is mailed or the date on which the resolution declaring the
distribution is adopted, as the case may be, shall be the record date for the
determination of Members. When a determination of Members entitled to vote at
any meeting of Members has been made as provided in this section, the
determination shall apply to any adjournment of the meeting.
7.07 Quorum. Members holding at least two-thirds of all Capital Interests,
represented in person, over the telephone, by video conferencing, or by proxy,
shall constitute a quorum at any meeting of Members. In the absence of a quorum
at any meeting of Members, a majority of the Capital Interests so represented
may adjourn the meeting from time to time for a period not to exceed 60 days
without further notice. However, if the adjournment is for more than 60 days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each Member of record entitled
to vote at the meeting. At an adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The Members present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal during the meeting of that number of Capital
Interests whose absence would cause less than a quorum.
7.08 Manner of Acting. If a quorum is present, the affirmative vote of
Members holding a majority interest shall be the act of the Members, unless the
vote of a greater or lesser proportion or number is otherwise required by the
Delaware Act, by the Certificate of Formation, or by this Operating Agreement.
Unless otherwise expressly provided in this Operating Agreement or required
under applicable law, Members who have an interest (ec onomic or otherwise) in
the outcome of any particular matter upon which the Members vote or consent may
vote or consent upon any such matter and their Capital Interest, vote or
consent, as the case may be, shall be counted in the determination of whether
the requisite matter was approved by the Member.
7.09 Proxies. At all meetings of Members, a Member may vote in person,
over the telephone, by video conferencing, or by proxy executed in writing by
the Member or by a duly authorized attorney-in-fact. The proxy shall be filed
with the Manager of the Company before or
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at the time of the meeting. No proxy shall be valid after 11 months from the
date of its execution, unless otherwise provided in the proxy.
7.10 Action by Members Without a Meeting. Action required or permitted to
be taken at a meeting of Members may be taken without a meeting if the action is
evidenced by one or more written consents describing the action taken, signed by
each Member entitled to vote and delivered to the Manager of the Company, for
inclusion in the minutes or for filing with the Company records. Action taken
under this section is effective when all Members entitled to vote have signed
the consent, unless the consent specifies a different effective date. The record
date for determining Members entitled to take action without a meeting shall be
the date the first Member signs a written consent.
7.11 Waiver of Notice. When any notice is required to be given to any
Member, a waiver of the notice in writing signed by the person entitled to the
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of the notice.
ARTICLE VIII
Contributions to the Company
and Capital Accounts
8.01 Member's Capital Contributions. The Member shall contribute such
amount as is set forth in appended Exhibit A as its share of the Initial Capital
Contribution.
8.02 Additional Contributions. Except as set forth in section 8.01 above,
no Member shall be required to make any Capital Contributions. To the extent
unanimously approved by the Manager, from time to time, the Member may be
permitted to make additional Capital Contributions if and to the extent they so
desire, and if the Manager determine that such additional Capital Contributions
are necessary or appropriate for the conduct of the Company's business,
including without limitation, expansion or diversification. In that event, the
Member shall have the opportunity, but not the obligation, to participate in
such additional Capital Contributions on a pro rata basis in accordance with
their Capital Accounts.
8.03 Capital Accounts. A separate Capital Account will be maintained for
each Member.
a. Each Member's Capital Account will be increased by:
i. The amount of money contributed by the Member to the Company;
ii. The fair market value of property contributed by the Member to the
Company (net of liabilities secured by such contributed property that
the Company is considered to assume or take subject to under IRC
(S)752); and
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iii. Allocations to the Member of Net Profits; and
b. Each Member's Capital Account will be decreased by:
i. The amount of money distributed to the Member by the Company;
ii The fair market value of property distributed to the Member by the
Company (net of liabilities secured by such distributed property that
such Member is considered to assume or take subject to under IRC
(S)752);
iii. Allocations to the Member of Net Losses.
c. The manner in which Capital Accounts are to be maintained
pursuant to this section 8.03 is intended to comply with the requirements of IRC
(S)704(b) and the Treasury Regulations promulgated thereunder.
d. Upon liquidation of the Company (or any Member's Membership
Interest or Economic Interest Owner's Economic Interest), liquidating
distributions will be made in accordance with the positive Capital Account
balances of the Member and Economic Interest Owners, as determined after taking
into account all Capital Account adjustments for the Company's taxable year
during which the liquidation occurs. Liquidation proceeds will be paid within 60
days of the end of the taxable year (or, if later, within 120 days after the
date of the liquidation). The Company may offset damages for breach of this
Operating Agreement by a Member or Economic Interest Owner whose interest is
liquidated (either upon the withdrawal of the Member or the liquidation of the
Company) against the amount otherwise distributable to the Member.
e. No Member or Economic Interest Owner shall have any liability to
restore all or any portion of a deficit balance in the Member's or Economic
Interest Owner's Capital Account.
8.04 Withdrawal or Reduction of Member's Contributions to Capital. A
Member shall not receive out of the Company's property any part of its Capital
Contribution until all liabilities of the Company, except liabilities to Members
on account of their Capital Contributions, have been paid or there remains
property of the Company sufficient to pay them. A Member, irrespective of the
nature of its Capital Contribution, has only the right to demand and receive
cash in return for its Capital Contribution.
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ARTICLE IX
Allocations, Income Tax Distributions,
Elections, and Reports
9.01 Allocations of Profits and Losses from Operations. The Net Profits
and Net Losses of the Company for each fiscal year will be allocated as follows:
Member Allocation
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HARNISCHFEGER INDUSTRIES, INC. 100%
9.02 Tax Allocations
a. Except as provided in section (b) below, items of income, gain,
loss, deduction or credit earned or realized by or available to the Company for
federal income tax purposes will be allocated to the Members in the same manner
as the corresponding Net Profits and Net Losses are allocated to such Members.
b. Solely for tax purposes, in accordance with Code Section 704(c)
and the Treasury Regulations thereunder, in the case of any asset contributed to
the Company, items of income, gain, loss, deduction or credit with respect to
such asset shall be allocated among the Members so as to take into account the
difference between the adjusted tax basis of such asset to the Company and its
fair market value at the time of contribution.
9.03 Distributions. All distributions of cash or other property shall be
made to the Member as follows:
pro rata in proportion to the percentage set out in section 9.01. Except as
provided in section 9.04, all distributions of Distributable Cash and
property shall be made at such time as determined by the Manager. All
amounts withheld pursuant to the IRC or any provisions of state or local
tax law for any payment or distribution to the Member from the Company
shall be treated as amounts distributed to the relevant Member or Members
pursuant to this section 9.03.
9.04 Limitation Upon Distributions. No distribution shall be declared and
paid unless, after distribution is made, the assets of the Company are in excess
of all liabilities of the Company, except liabilities to Members on account of
their Capital Contribution.
9.05 Loans to Company. Nothing in this Operating Agreement shall prevent
any Member from making secured or unsecured loans to the Company by agreement
with the Company.
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9.06 Accounting Period. The Company's accounting period shall be the year
ended October 31.
9.07 Records, Audits, and Reports. At the expense of the Company, the
Manager shall maintain records and accounts of all operations and expenditures
of the Company. At a minimum the Company shall keep at its principal place of
business or at other locations as Members holding a Majority Interest may
indicate the following records:
a. A current list of the full name and last known business,
residence, or mailing address of each Member, Economic Interest Owner, and
Manager, both past and present;
b. A copy of the Certificate of Formation of the Company with
executed copies of any and all amendments thereto, together with executed copies
of any powers of attorney pursuant to which any amendment has been executed;
c. Copies of the Company's federal, state, and local income tax
returns and reports, if any, for the four most recent years;
d. Copies of the Company's currently effective written Operating
Agreement, copies of any writings permitted or required with respect to a
Member's obligation to contribute cash, property, or services, and copies of any
financial statements of the Company for the three most recent years;
e. Minutes of every annual meeting, special meeting, and court-
ordered meeting;
f. Any written consents obtained from Members for actions taken by
Member without a meeting.
9.08 Returns and Other Elections. The Manager shall cause the preparation
and timely filing of all tax returns required to be filed by the Company
pursuant to the IRC and all other tax returns deemed necessary and required in
each jurisdiction in which the Company does business. All elections permitted to
be made by the Company under federal or state laws shall be made by the Manager
in the Manager's sole discretion, provided that the Manager shall make any tax
election requested by a Member owning a Majority Interest.
ARTICLE X
Additional Members
10.01 Admission to Membership. From the date of the formation of the
Company, any Person or Entity acceptable to the Members by their unanimous vote
may become a Member in this Company by the issuance by the Company of Membership
Interests for such consideration
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as the Members by their unanimous votes shall determine, subject to the terms
and conditions of this Operating Agreement. At any time when the Company shall
only have one Member, the transfer of all of the Membership Interests of such
sole Member to any Person or Entity shall cause such Person or Entity to become
a Member of this Company.
10.02 Financial Adjustments. No new Members shall be entitled to any
retroactive allocation of losses, income, or expense deductions incurred by the
Company. The Manager may, at their option, at the time a Member is admitted,
close the Company books (as though the Company's tax year had ended) or make pro
rata allocations of loss, income, and expense deductions to a new Member for
that portion of the Company's tax year in which a Member was admitted in
accordance with the provisions of IRC Sec. 706(d) and the Treasury Regulations
promulgated thereunder.
ARTICLE XI
Dissolution and Termination
11.01 Dissolution.
a. The Company shall be dissolved upon the occurrence of any of the
following events:
i. When the period fixed for the duration of the Company shall expire
pursuant to section 2.05 above;
ii. By the unanimous written agreement of all Members; or
iii. Upon the death, insanity, retirement, resignation, expulsion,
participation or dissolution of the sole Member of the Company at a
time when the Company has only one Member or the occurrence of any
other event which terminates the continued membership of such sole
Member of the company;
iv. Upon the death, insanity, retirement, resignation, expulsion,
bankruptcy, or dissolution of a Member or occurrence of any other
event which terminates the continued membership of a Member in the
Company (a "Withdrawal Event"), unless the business of the Company is
continued by the consent of all the remaining Member or Members
within 90 days after the Withdrawal Event and there are at least two
remaining Members.
b. Notwithstanding anything to the contrary in this Operating
Agreement, if a Member or Members owning Capital Interests which in the
aggregate constitute not less than two thirds of the Capital Interest vote to
dissolve the Company at a meeting of the Company pursuant to Article VII, then
all of the Members shall agree in writing to dissolve the Company as soon as
possible (but in any event not more than 10 days) thereafter.
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c. As soon as possible following the occurrence of any of the events
specified in this section 11.01 effecting the dissolution of the Company, the
appropriate representative of the Company shall execute an Articles of
Dissolution in such form as shall be prescribed by the Delaware Secretary of
State and file same with the Delaware Secretary of State's office.
d. If a Member who is an individual dies or a court of competent
jurisdiction adjudges him to be incompetent to manage the Member's person or
property, the Member's executor, administrator, guardian, conservator, or other
legal representative may exercise all of the Member's rights for the purpose of
settling the Member's estate or administering his property.
11.02 Effect of Filing of Dissolving Statement. Upon the filing by the
Delaware Secretary of State of a statement of intent to dissolve, the Company
shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but its separate existence shall continue until a
certificate of dissolution has been issued by the Secretary of State or until a
decree dissolving the Company has been entered by a court of competent
jurisdiction.
11.03 Winding Up, Liquidation, and Distribution of Assets. Upon
dissolution, an accounting shall be made by the Company's independent
accountants of the accounts of the Company and of the Company's assets,
liabilities, and ~operations, from the date of the last previous accounting
until the date of dissolution. The Manager shall immediately proceed to wind up
the affairs of the Company. If the Company is dissolved and its affairs are to
be wound up, the Manager shall:
a. Sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent the Manager(s) may determine to
distribute any assets to the Member in kind);
b. Allocate any profit or loss resulting from such sales to the
Member's and Economic Interest Owners' Capital Accounts in accordance with
Article IX above;
c. Discharge all liabilities of the Company, including liabilities
to Member and Economic Interest Owners who are creditors, to the extent
otherwise permitted by law, other than liabilities to Member and Economic
Interest Owners for distributions, and establish such Reserves as may be
reasonably necessary to provide for contingencies or liabilities of the Company
(for purposes of determining the Capital Account of the Member and Economic
Interest Owners, the amounts of such Reserves shall be deemed to be an expense
of the Company);
d. Distribute the remaining assets in the following order:
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i. If any assets of the Company are to be distributed in kind, the net
fair market value of those assets as of the date of dissolution shall
be determined by independent appraisal or by agreement of the
Members. Those assets shall be deemed to have been sold as of the
date of dissolution for their fair market value, and the Capital
Accounts of the Members and Economic Interest Owners shall be
adjusted pursuant to the provisions of Article IX and section 8.03 of
this Operating Agreement to reflect such deemed sale.
ii. The positive balance (if any) of each Member's and Economic Interest
Owners' Capital Account (as determined after taking into account all
Capital Account adjustments for the Company's taxable year during
which the liquidation occurs) shall be distributed to the Member,
either in cash or in kind, as determined by the Manager, with any
assets distributed in kind being valued for this purpose at their
fair market value. Any such distributions to the Member in respect of
their Capital Accounts shall be made in accordance with the time
requirements set forth in Treas. Reg. Sec. 1.704-1(b)(2)(ii)(b)(2).
e. Notwithstanding anything to the contrary in this operating
Agreement, upon a liquidation within the meaning of Treas. Reg. Sec. l.704-
1(b)(2)(ii)(g), if any Member has a Deficit Capital Account (after giving effect
to all contributions, distributions, allocations, and other Capital Account
adjustments for all taxable years, including the year during which such
liquidation occurs), the Member shall have no obligation to make any Capital
Contribution, and the negative balance of the Member's Capital Account shall not
be considered a debt owed by the Member to the Company or to any other Person
for any purpose whatsoever.
f. Upon completion of the winding up, liquidation, and distribution
of the assets, the Company shall be deemed terminated.
g. The Manager shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Company and
the final distribution of its assets.
11.04 Articles of Dissolution. When all debts, liabilities, and obligations
have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets have been distributed to the Member,
articles of dissolution shall be executed in duplicate and verified by the
person signing the articles, which articles shall set forth the information
required by the Delaware Act. Duplicate originals of the articles of dissolution
shall be delivered to the Delaware Secretary of State.
11.05 Certificate of Dissolution. Upon the issuance of the certificate of
dissolution, the existence of the Company shall cease, except for the purpose of
suits, other proceedings, and appropriate action as provided in the Delaware
Act. The Manager shall have authority to
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distribute any Company property discovered after dissolution, convey real
estate, and take such other action as may be necessary on behalf of and in the
name of the Company.
11.06 Return of Contribution Nonrecourse to Other Members. Except as
provided by law or as expressly provided in this Operating Agreement, upon
dissolution, each Member shall look solely to the assets of the Company for the
return of its Capital Contribution. If the Company property remaining after the
payment or discharge of the debts and liabilities of the Company is insufficient
to return the cash contribution of one or more Members, the Members shall have
no recourse against any other Member.
ARTICLE XII
Miscellaneous Provisions
12.01 Notices. Any notice, demand, or communication required or permitted
to be given by any provision of this Operating Agreement shall be deemed to have
been sufficiently given or served for all purposes if delivered personally to
the party or to an executive officer of the party to whom the same is directed
or, if sent by registered or certified mail, postage and charges prepaid,
addressed to the Member's and/or Company's address, as appropriate, which is set
forth in this Operating Agreement. Except as otherwise provided in this
Operating Agreement, any such notice shall be deemed to be given three business
days after the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and sent as
aforesaid.
12.02 Application of Delaware Law. This Operating Agreement, and the
application of interpretation hereof shall be governed exclusively by its terms
and by the laws of the State of Delaware, and specifically the Delaware Act.
12.03 Waiver of Action for Participation. Each Member and Economic Interest
Owner irrevocably waives during the term of the Company any right that it may
have to maintain any action for partition with respect to the property of the
Company.
12.04 Amendments. This Operating Agreement may not be amended except by the
unanimous written agreement of all of the Members.
12.05 Execution of Additional Instruments. Each Member hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney, and other instruments necessary to comply with
any laws, rules, or regulations.
12.06 Construction. Whenever the singular number is used in this Operating
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
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12.07 Headings. The headings in this Operating Agreement are for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent, or intent of this Operating Agreement or any of its
provisions.
12.08 Waivers. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Operating Agreement shall not prevent a subsequent act, that would have
originally constituted a violation, from having the effect of an original
violation.
12.09 Rights and Remedies Cumulative. The rights and remedies provided by
this Operating Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive the right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance, or otherwise.
12.10 Severability. If any provision of this Operating Agreement or its
application to any person or circumstance shall be invalid, illegal, or
unenforceable to any extent, the remainder of this Operating Agreement and its
application shall not be affected and shall be enforceable to the fullest extent
permitted by law.
12.11 Heirs, Successors, and Assigns. Each and all of the covenants,
terms, provisions, and agreements contained in this Operating Agreement shall be
binding upon and inure to the benefit of the parties hereto and, to the extent
permitted by this Operating Agreement, their respective heirs, legal
representatives, successors, and assigns.
12.12 Creditors. None of the provisions of this Operating Agreement shall
be for the benefit of or enforceable by any creditors of the Company.
12.13 Counterparts. This Operating Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
12.14 Rule Against Perpetuities. The parties to this Operating Agreement
intend that the Rule against Perpetuities (and any similar rule of law) not
apply to any provisions of this Operating Agreement. However, notwithstanding
anything to the contrary in this Operating Agreement, if any provision in this
Operating Agreement would be invalid or unenforceable because of the Rule
against Perpetuities or any similar rule of law but for this section 12.14 the
parties to this Operating Agreement hereby agree that any future interest which
is created pursuant to said provision shall cease if it is not vested within 21
years after the death of the survivor of the group composed of all who are
currently Members and their issue who are living on the date of this Operating
Agreement and their issue, if any, who are living on the effective date of this
Operating Agreement.
12.15. No Nonvoting Equity Interests. Notwithstanding anything herein
to the contrary, the Company shall not be authorized to issue non-voting equity
securities of any class, series or
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other designation to the extent prohibited by Section 1123(a)(6) of title 11 of
the United States Code (the "Bankruptcy Code"); provided, however, that the
foregoing restriction shall (i) have no further force and effect beyond that
required under Section 1123(a)(6) of the Bankruptcy Code, (ii) only have such
force and effect for so long as such Section 1123(a)(6) is in effect and applies
to the Company and (iii) be deemed void or eliminated if required under
applicable law.
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CERTIFICATE
The undersigned hereby agree, acknowledge, and certify that the foregoing
Operating Agreement constitutes the Operating Agreement of SOUTH SHORE
DEVELOPMENT, LLC, Limited Liability Company adopted by the Member of the Company
as of April 23, 1999, as amended as of May 21, 2001.
HARNISCHFEGER INDUSTRIES, INC.
/s/ Xxx X. Xxxxxxxx
----------------------------------
By: Xxx X. Xxxxxxxx
Its: Assistant Secretary
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EXHIBIT A
Initial Member Initial Capital Share of Total
Contributions Contribution Capital
--------------------------------------------------------------------------------
HARNISCHFEGER INDUSTRIES, INC. $200,000.00 100%
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