SECOND AMENDED AND RESTATED OPERATING AGREEMENT FOR ELYSIAN HEIGHTS POTOMIA, LLC
Exhibit 3.2(ah)
SECOND AMENDED AND RESTATED OPERATING AGREEMENT
FOR ELYSIAN HEIGHTS POTOMIA, LLC
FOR ELYSIAN HEIGHTS POTOMIA, LLC
THIS SECOND AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) is made as of the 18th
day of August, 2009, by BEAZER HOMES CORP., a Tennessee corporation (“Beazer” or the “Sole
Member”).
RECITALS:
R-1. The Artery Group, LLC, a Maryland limited liability company (“Artery”), formed Artery
Potomia, LLC, a Virginia limited liability company (the “Company”), pursuant to the applicable
provisions of the Virginia Limited Liability Company Act (the “Act”), and Artery entered into an
original Operating Agreement for the Company dated January 1, 2004.
R-2. Artery sold and assigned to Beazer a forty-nine percent (49%) membership interest in the
Company and, in connection therewith, Artery and Beazer entered into that certain Amended and
Restated Operating Agreement for Artery Potomia, LLC, dated December 3, 2004, as amended by that
certain First Amendment to Amended and Restated Operating Agreement dated October 30, 2007, and by
that certain Second Amendment to Amended and Restated Operating Agreement (the “Second Amendment”)
dated June 30, 2009 (collectively, the “Operating Agreement”). The Second Amendment, among other
things, confirms that the Company’s name changed, as of June 30, 2009, to Elysian Heights Potomia,
LLC.
R-3. Pursuant to that certain Assignment of Membership Interest dated as of even date herewith
(the “Assignment”), Artery assigned to Beazer all of Artery’s right, title and interest in and to
the Company. Therefore, Beazer is now the sole member of the Company.
R-4. In connection with the Assignment, Beazer, as the sole member of the Company, wishes to
completely amend and restate the Company’s Operating Agreement.
NOW THEREFORE, in consideration of the above recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Beazer, as the sole
member of the Company, states and affirms that the Company’s Operating Agreement is hereby
completely superseded and restated as follows:
ARTICLE I
ORGANIZATION
ORGANIZATION
1.1 Name. The name of the Company shall be ELYSIAN HEIGHTS POTOMIA, LLC.
1.2 Term. The Company commenced on October 18, 2002 (the date the Certificate of
Organization for the Company was issued by the Virginia State Corporation Commission), and shall
continue until terminated by law or as decided by the Sole Member.
1.3 Place of Business. The Company’s principal office and place of business shall be
located at 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
1.4 Purposes. The purposes of the Company are to (a) own, subdivide, develop,
operate, maintain, construct residential units for sale on that certain property located within the
project known as Elysian Heights, in Loudoun County, Virginia, such property being more
particularly described on Exhibit A attached hereto, and sell and/or convey such units (or
other portions of such property) to homeowners or to other parties; (b) engage in any and all
general business activities incidental thereto (including without limitation borrowing money and
encumbering any property of the Company for the foregoing purposes), and (c) conduct any and all
other lawful business when and if approved by the Sole Member.
1.5 Registered Office and Registered Agent of the Company. The current registered
agent of the Company is CT Corporation System, a Virginia corporation, and the current registered
agent’s address is 0000 Xxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxxx 00000, which is located in
Henrico County. The Manager shall have the right to appoint one or more successor registered
agents at the Manager’s sole discretion.
1.6 Title to Property. Legal title to all property of the Company, both real and
personal, shall be held in the name of the Company or in any other name the Manager deems proper.
ARTICLE II
MEMBERS
MEMBERS
Beazer is the sole member of the Company, owning a one hundred percent (100%) interest
therein.
ARTICLE III
CONTRIBUTIONS AND CAPITAL ACCOUNTS
CONTRIBUTIONS AND CAPITAL ACCOUNTS
3.1 Initial Contributions. The Sole Member acknowledges that all of its initial
Capital Contributions have been made, and the Sole Member’s Capital Account balance is as reflected
in the books and records of the Company.
3.2 Additional Contributions. The Sole Member may, but shall not be required to, make
capital contributions in addition to those set forth above in this Article III.
3.3 Loans. In the event that at any time funds (in excess of the capital
contributions) are required by the Company for or in respect of its business or any of its
obligations, expenses, costs, liabilities or expenditures, the Company may, upon the decision of
the Sole Member,
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borrow such funds, with interest payable at then-prevailing rates, from the Sole Member or
from commercial banks, savings and loan associations and/or other lending institutions, or third
parties.
3.4 No Benefit to Third Parties. The foregoing provisions of this Article III are not
intended to be for the benefit of any creditor or other person (other than the Sole Member in its
capacity as such) to whom any debts, liabilities or obligations are owed by (or who otherwise has
any claim against) the Company or the Sole Member; and no such creditor or other person shall
obtain any right under any such foregoing provisions or shall by reason of any such foregoing
provision make any claim in respect of any debt, liability or obligation (or otherwise) against the
Company or the Sole Member.
3.5 Capital Account. For all purposes of this Agreement, the “capital account” of the
Sole Member as of any date is hereby defined to mean the amount of cash (or the agreed fair market
value of property) the Sole Member contributed (or is deemed to have contributed) to the capital of
the Company pursuant to this Article III, properly adjusted to reflect (i) the Sole Member’s
distributive share of profits and losses (including partial accounting year sums, if applicable),
and (ii) distributions by the Company to the Sole Member (including partial accounting year sums,
if applicable).
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS DURING OPERATIONS
ALLOCATIONS AND DISTRIBUTIONS DURING OPERATIONS
4.1 Distribution and Timing of Net Cash Flow. Net cash flow shall be distributed to
the Sole Member when and as determined by the Manager in the Manager’s sole discretion. For the
purposes of this Article IV, “net cash flow” shall mean the gross cash proceeds from any source
whatsoever (including without limitation proceeds of financing or refinancing any indebtedness of
the Company) less the portion thereof used to pay or establish reserves for all Company expenses,
debt payments (including principal, interest and any other applicable charges owed to the Sole
Member), capital improvements, replacements and contingencies. Net cash flow shall not be reduced
by depreciation, amortization, cost recovery deductions or similar allowances, but shall be
increased by any reductions of reserves previously established.
4.2 Allocations. The Company’s profits, losses, and gains and losses from capital
transactions, for tax and accounting purposes, shall be allocated to the Sole Member in accordance
with the Internal Revenue Code of 1986, as from time to time amended, and the regulations
promulgated thereunder, or any federal legislation that may be substituted therefor.
4.3 Liability to Creditors. Except as otherwise required by law, none of the Sole
Member, the Manager or the officers of the Company shall be liable for the obligations or losses of
the Company.
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ARTICLE V
MANAGEMENT; OFFICERS; INDEMNIFICATION
MANAGEMENT; OFFICERS; INDEMNIFICATION
5.1 Management.
5.1.1 Management of the Company. All management of the Company shall be vested in a
single manager (the “Manager”) who shall manage the business and operations of the Company and
shall have all right, authority, power and discretion to control, direct, manage and administer the
affairs of the Company and to do all things necessary to carry on the business and purposes of the
Company, in each case subject to the direction of the Sole Member. The initial Manager shall be
Xxxxxx X. Xxxxxxx. The Manager may be removed, with or without cause, at any time by the Sole
Member, and the Sole Member may, but shall not be required, to appoint a replacement Manager. In
the event that a removed Manager is not replaced, all decisions to be made by the Manager and all
other authority granted the Manager under this Agreement or the Act shall be exercised solely by
the Sole Member. The acts of the Sole Member and the Manager shall bind the Company.
5.1.2 Obligations. The Manager shall not be obligated to devote full-time efforts to
the business of the Company.
5.1.3 Business Judgment. The Manager shall exercise reasonable and ordinary business
judgment in managing the business and affairs of the Company.
5.2 Officers.
5.2.1 Appointment of Officers; Removal. The Manager may create such offices, and
appoint persons to hold such offices from time to time as are set forth on Exhibit B
attached hereto, as the Manager shall deem necessary or convenient in connection with the operation
of the Company. Such additional officers shall have only such power as is delegated to them by the
Manager, but in no event shall any such officer possess more power or authority than belongs to the
Manager hereunder. Each such officer of the Company shall hold office until his or her death or
until he or she shall resign or shall have been removed in the manner provided herein. Any officer
or agent appointed by the Manager may be removed by the Manager whenever in the Manager’s judgment
the best interests of the Company would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
5.2.2 Bank Accounts. The officers of the Company are authorized and directed to open
accounts with any bank as may be selected as depositories for the Company by the Manager, and to
deposit therein funds of the Company, drafts, checks and notes of the Company, payments on said
accounts to be made in the corporate name. The officers are authorized to execute and deliver
corporate resolutions on such forms as may be presented or required by any such bank, said forms to
be completed with such information as the executing officers may deem to be in the best interest of
the Company. All such resolutions which may be required by banks selected for the Company by the
Manager dealing with the designation of such banks as depositories are adopted as resolutions of
the Sole Member and the Manager, and any officer of the Company may hereafter attest to and
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execute such bank resolutions and/or forms without additional action of the Sole
Member or the Manager.
5.3 Assignment of Rights and Delegation of Duties. The Manager may contract with any
person or entity with respect to the day-to-day management of the Company.
5.4 Indemnification by the Company. To the fullest extent not prohibited by
applicable law, the Sole Member, the Manager and, if any, the officers appointed by the Manager,
shall be entitled to indemnification from the Company for any acts performed by them within the
scope of this Agreement, provided that such acts were taken in good faith, except that no
indemnification shall be made for any act adjudicated to be grossly negligent or unlawful unless
the court making such adjudication shall determine that such act was, in spite of such gross
negligence or unlawfulness, one entitled to be indemnified. Any indemnification hereunder shall be
made from, and only from, Company assets, and the Sole Member, the Manager and any such officers
appointed by the Manager shall not be individually or personally liable for any part thereof.
ARTICLE VI
ADMISSION OF NEW MEMBERS; TRANSFERS OF INTERESTS
ADMISSION OF NEW MEMBERS; TRANSFERS OF INTERESTS
The Sole Member shall have the right at any time to (i) admit an additional member or members
to the Company, and/or (ii) transfer, sell, assign, convey, hypothecate, pledge or encumber the
Sole Member’s percentage interest in the Company, in whole or in part, to any person or entity.
ARTICLE VII
FINANCIAL RECORDS
FINANCIAL RECORDS
7.1 Company Books. The Company shall maintain accurate books of the affairs of the
Company at its principal office using such methods as may be determined from time to time by the
Manager. The Sole Member shall have the right to inspect and examine such books at all reasonable
times.
ARTICLE VIII
GENERAL PROVISIONS
GENERAL PROVISIONS
8.1 Governing Law. All questions regarding the construction of this Agreement and the
rights and liabilities of the parties shall be determined in accordance with the laws of the
Commonwealth of Virginia without regard to the conflict of laws provisions thereof.
8.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the Sole Member and the Sole Member’s successors and assigns.
8.3 Interpretation. When the context in which words are used in this Agreement so
indicates, words in the singular number shall include the plural, and vice versa,
and words in the masculine gender shall include the feminine and neuter genders, and vice
versa.
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8.4 Validity. If a provision of this Agreement is declared invalid, such invalidity
shall not invalidate the remainder of this Agreement.
8.5 Entire Agreement; Amendments. This Agreement contains the entire understanding of
the Sole Member and supersedes all prior written and oral agreements regarding the subject matter
of this Agreement, including, without limitation, that certain Amended and Restated Operating
Agreement for the Company, dated December 3, 2004, as amended. No representation, agreement,
arrangement or understanding, oral or written, exists relating to the subject matter of this
Agreement that is not fully expressed herein. All amendments to this Agreement must be made in
writing and signed by the Sole Member.
8.6 Captions. Any section or paragraph title or caption contained in this Agreement
is for convenience of reference only, and shall not be deemed a part of or construed to affect the
meaning of this Agreement.
8.7 Other Ventures. The Sole Member may engage in and/or possess any interest in
other business ventures of every nature and description, independently or with others, including
but not limited to, the ownership, operation and management of other companies engaged in real
estate acquisition, development and construction, and the Company shall not have any rights in or
to any such independent venture or the income or profits derived therefrom.
IN WITNESS WHEREOF, the Sole Member has signed this Agreement as of the day and year first
above written.
| BEAZER HOMES CORP., a Tennessee | ||||
| corporation, Sole Member | ||||
| By: | /s/ Xxxxxxx X’Xxxxxx | |||
| Name: | Xxxxxxx X’Xxxxxx | |||
| Title: | Vice President — Forward Planning | |||
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Exhibit A
Description of Property
See attached.
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Exhibit B
Officers
| Xxxxxx X. Xxxxxxx | President | |||||
| Xxxxx X. Xxxxxxxx XX | Vice President | |||||
| Xxxx Xxxxxx | Vice President |
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