SECOND AMENDED & RESTATED OPERATING AGREEMENT FOR RITM, LLC
Exhibit 3.867
SECOND AMENDED & RESTATED
OPERATING AGREEMENT FOR
RITM, LLC
RITM, LLC
THIS SECOND AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) of RITM, LLC, a
Delaware limited liability company (the “Company”), is made and entered into on July 20, 2001, by
The LETCO Group, Limited Partnership (“LETCO”). The Company was organized as a limited liability
company under the Delaware Limited Liability Company Act (the “Law”). Certain defined terms used in
this Agreement are set forth in Schedule I (Schedule of Definitions) attached
hereto and made a part hereof. In consideration of the mutual covenants and agreements contained in
this Agreement and other good and valuable consideration, and intending to be legally bound hereby,
the undersigned hereby agrees as follows:
I. PURPOSES
The purposes of the Company are to engage in and do any act in furtherance of any and all
lawful businesses for which limited liability companies may be formed under the Law.
II. ORGANIZATIONAL MATTERS
Section 2.1 Formation. The Company was formed pursuant to the Law upon the filing of
Certificate of Formation (“Certificate”) The rights and obligations of the Members shall be as
provided under the Law, except as otherwise provided in the Certificate and this Agreement. The
Members agree to each of the provisions of the Certificate. It is hereby agreed, acknowledged and
confirmed that Xxxxx X. Xxxxxxx was and is an “authorized person” (within the meaning of the Law)
for purposes of executing and filing the Certificate, and the Certificate and such execution and
filing of same are hereby ratified, approved and authorized.
Section 2.2 Principal Place of Business. The principal place of business of the
Company shall be 000 X.X. 0xx Xxxxxx, 00xx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, or such other
address as may be established by the Members.
Section 2.3 Duration. The existence of the Company shall continue in perpetuity,
unless the Company is sooner dissolved in accordance with the Law.
III. MEMBERS AND CAPITAL STRUCTURE
Section 3.1 Units Representing Membership Interests. The Interests of Members in the
Company are divided into and represented by Units. Each Member’s respective number of Units is set
forth in Exhibit A as the same shall be amended from time to time to reflect any changes in
the number of Units of Members. The Members agree that each Unit shall entitle the Member
possessing such Unit to:
(a) Equal governance rights per Unit and to one vote per Unit on matters on which the Members
may vote under the Certificate, this Agreement and/or the Law;
(b) An equal proportionate share per Unit of the Company’s net income, gains, losses,
deductions and credits; and
(c) An equal proportionate share per Unit of amounts distributed to the Members in respect of
their Interests upon dissolution of the Company.
Unless otherwise approved by the Members, the Company will not issue certificates representing
Units, but at the written request of a Member, the Company will provide a certified statement
setting forth the total number of Units issued and outstanding and the number of Units issued to
the requesting Member, as of the date of the statement. It is hereby agreed, acknowledged and
confirmed that LETCO is, and has been admitted as the sole member of the Company, and that LETCO’s
Units as set forth in Exhibit A have been duly issued, and such admission and issuance are
hereby ratified, approved and authorized.
Section 3.2 Capital Contributions. The initial Capital Contribution to the Company of
the sole Member is set forth on Exhibit A.
Section 3.3 Additional Capital. The Member shall not be obligated to make any Capital
Contributions other than its initial Capital Contribution.
Section 3.4 Capital Accounts.
(a) An individual capital account (the “Capital Account”) shall be established and maintained
on behalf of each Member, including any Additional Member who shall hereafter receive an Interest,
in the manner provided by Treasury Regulations Section 1.704-l(b)(2)(iv).
(b) Except as is specifically provided otherwise in this Agreement, no Member shall have any
liability or obligation to restore a negative or deficit balance in such Member’s Capital Account.
IV. MEETINGS OF MEMBERS
Section 4.1 Annual Meetings. Annual meetings of the Members shall be held no later
than ninety (90) days following the close of the Company’s fiscal year at the principal offices of
the Company, or on such other date or at such other place as may be designated by a Majority in
Interest of the Members.
Section 4.2 Special Meetings. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Member upon notice in
writing to the Company of the proposed meeting and the matters proposed to be acted upon.
Section 4.3 Notice of Meetings. The Company shall deliver or mail written notice
stating the date, time and place of any Members’ meeting and, in the case of a special Members
meeting or when otherwise required by law, a description of the purposes for which the meeting is
called, to each Member of record entitled to vote at the meeting, at such address as appears in the
records of the Company and at least five (5), but no more than sixty (60), days before the date of
the meeting.
Section 4.4 Waiver of Notice. A Member may waive notice of any meeting, before or
after the date and time of the meeting as stated in the notice, by delivering a signed waiver to
the Company for inclusion in the minutes. A Member’s attendance at any meeting, in person or by
proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the Member
at the beginning of the meeting objects to holding the meeting or transacting business at the
meeting, and (b) waives objection to consideration of a particular matter at the meeting that is
not within the purposes described in the meeting notice, unless the Member objects to considering
the matter when it is presented.
Section 4.5 Voting Rights. Except as otherwise provided herein, on all matters that
come before the Members for a vote, each Member shall be entitled to one vote for each Unit owned
by such Member. The presence of a Majority in Interest of the Members shall constitute a quorum for
any meeting of the Members. Except as otherwise provided in this Agreement, approval of any action
by Majority in Interest of the Members requires the approval of a Majority in Interest of the
Members.
Section 4.6 Action by Consent. Any action required or permitted to be taken at a
Members’ meeting may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the Members. The written consent or consents shall be delivered
to the Company for inclusion in its minutes.
Section 4.7 Presence. Any or all Members may participate in any annual or special
Members’ meeting by, or through the use of, any means of communication by which all Members
participating may simultaneously hear each other during the meeting. A Member so participating is
deemed to be present in person at the meeting.
Section 4.8 Conduct of Meetings. At any Members’ meeting, the Members with the
approval of a Majority in Interest of the Members shall appoint a Member to preside at the meeting
and shall appoint a person to act as secretary of the meeting. The secretary of the
meeting shall prepare minutes of the meeting which shall be placed in the minute book of the
Company.
V. MANAGEMENT AND OFFICERS
Section 5.1 Governance. The Company shall be managed by its members.
Section 5.2 Officers. The Company shall have a President, Vice President, Secretary,
Treasurer and such other officers as the Member may determine and appoint. Such officers of the
Company shall have the authority to sign contracts and execute documents that obligate the Company.
The sole Member shall be an officer of the Company, holding each of the offices and titles set
forth above, except to the extent that the sole Member has appointed another person or Entity to
such office.
VI. ACCOUNTING AND RECORDS
Section 6.1 Records and Accounting. The books and records of the Company shall be
kept, and the financial position and the results of its operations recorded, in accordance with
generally accepted accounting principles consistently applied (“GAAP”). The books and records of
the Company shall reflect all Company transactions and shall be appropriate and adequate for the
Company’s business. The fiscal year of the Company for financial reporting and for federal income
tax purposes shall be the calendar year.
Section 6.2 Access to Accounting Records. All books and records of the Company shall
be maintained at any office of the Company or at the Company’s principal place of business, and
each Member, and his, her, or its duly authorized representative, may inspect and copy such books
and records upon reasonable notice and request, during normal business hours.
Section 6.3 Annual Tax Information. The Company shall use its best efforts to deliver
to each Member within 60 days after the end of each fiscal year all information necessary for the
preparation of such Member’s federal and state income tax returns. The Company shall also use its
best efforts to prepare, within 60 days after the end of each fiscal year, a financial report of
the Company for such fiscal year containing a balance sheet as of the last day of the year then
ended, an income statement for the year then ended, a statement of sources and applications of
funds, and a statement of reconciliation of the Capital Accounts of the Members.
VII. ALLOCATIONS AND DISTRIBUTIONS
Section 7.1 Allocation of Net Income, Net Loss or Capital Gains. The net income, net
loss, or capital gains of the Company for each fiscal year of the Company shall be allocated to the
Members, pro rata in accordance with their respective Percentage Interests.
VIII. DISSOLUTION AND WINDING UP
Section 8.1 Dissolution. The Company shall be dissolved and its affairs wound up on
the first of the following to occur:
(a) A unanimous determination by the Members that the Company shall be dissolved; or
(b) At such earlier time as may be provided by applicable law.
Section 8.2 Winding Up. Upon dissolution, the Members shall proceed to wind up and
liquidate the business and affairs of the Company, and the Company may only carry on business that
is appropriate to wind up and liquidate the business and affairs of the Company, including the
following: (a) collecting the Company’s assets, (b) disposing of properties that will not be
distributed in kind to Members, (c) discharging or making provision for discharging liabilities,
(d) distributing the remaining property among the Members, and (e) doing every other Law necessary
to wind up and liquidate the business and affairs of the Company. The Members shall follow the
procedure for disposing of known claims set forth in the Law and shall publish notice of the
dissolution of the Company pursuant to the Law.
Section 8.3 Distribution of Assets. Upon the winding up of the Company, the assets
shall be distributed as follows:
(a) To creditors, including Members who are creditors to the extent permitted by law, in the order
of priority as provided by law to satisfy the liabilities of the Company whether by payment or by
the establishment of adequate reserves;
(b) To Members to repay any loans to the Company;
(c) To Members of the Company in respect of their share of the profits and other compensation by
way of income on their Capital Contributions to the extent each such Member has a positive balance
in his Capital Account as provided in Treasury Regulation §1.704-l(b)(2)(ii)(b)(2);and
(d) To Members of the Company in respect of their Capital Contributions to the extent each such
Member has a positive balance in his Capital Account as provided in Treasury Regulation
§1.704-l(b)(2)(ii)(b)(2).
IX. AMENDMENTS
Section 9.1 Proposal of Amendments. Amendments to the Certificate and this Agreement
may be proposed in writing by any Member. Copies of any amendments proposed to be made shall be
sent to the Members.
Section 9.2 Approval of Amendments. A proposed amendment shall be voted upon at either
an annual meeting or a special meeting of the Members duly called for the purpose of voting on the
amendment. Such amendment shall be approved by a Majority in Interest of the Members.
X. MISCELLANEOUS
Section 10.1 Complete Agreement. This Agreement and the Certificate constitute the
complete and exclusive statement of agreement among the Members with respect to its subject matter.
This Agreement and the Certificate replace and supersede all prior agreements by and among the
Members or any of them. This Agreement and the Certificate supersede all prior written and oral
statements, and no representation, statement, or condition or warranty not contained in this
Agreement or the Certificate will be binding on the Members or have any force or effect whatsoever.
Section 10.2 Governing Law. This Agreement and the rights of the parties under this
Agreement will be governed by, interpreted, and enforced in accordance with the laws of the State
of Delaware.
Section 10.3 Binding Effect; Conflicts. Subject to the provisions of this Agreement
relating to transferability, this Agreement will be binding upon and inure to the benefit of the
Members and their respective distributees, successors and assigns.
Section 10.4 Headings: Interpretation. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. The singular shall include the plural, and the
masculine gender shall include the feminine and neuter, and vice versa, as the context requires.
Section 10.5 Severability. If any provision of this Agreement is held to be illegal,
invalid, unreasonable, or unenforceable under the present or future laws effective during the term
of this Agreement, such provision will be fully severable; this Agreement will be construed and
enforced as if such illegal, invalid, unreasonable, or unenforceable provision had never comprised
a part of this Agreement; and the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, unreasonable, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid,
unreasonable, or unenforceable provision, there will be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, unreasonable, or unenforceable
provision as may be possible and be legal, valid, reasonable, and enforceable.
Section 10.6 Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will constitute one and the
same instrument. However, in making proof with respect to this Agreement, it will be necessary to
produce only one copy hereof signed by the party to be charged.
Section 10.7 Additional Documents and Laws. Each Member agrees to promptly execute and
deliver to the Company such additional documents, statements of interest and holdings,
designations, powers of attorney, and other instruments, and to perform such additional Laws, as
the Company may determine to be necessary, useful or appropriate to complete the organization of
the Company, effectuate, carry out and perform all of the terms, provisions, and conditions of this
Agreement and the transactions contemplated by this Agreement, and to comply with all applicable
laws, rules and regulations.
Section 10.8 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the Members and their respective successors and assigns
subject to the express provisions of this Agreement relating to successors and assigns. This
Agreement is expressly not intended for the benefit of any creditor of the Company or any other
third party. No creditor or other third party will have any rights, interest, or claims under the
Agreement or be entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
Section 10.9 Notices. Any notice to be given or to be served upon the Company or any
Member in connection with this Agreement must be in writing and will be deemed to have been given
and received when delivered to the address specified by the party to receive the notice. Such
notices will be given to a Member at the address that appears in the records of the Company. Any
Member or the Company may, at any time by giving five days, prior written notice to the other
Members and the Company, designate any other address in substitution of the foregoing address to
which such notice will be given.
Section 10.10 Title to Company Property. Legal title to all property of the Company
will be held and conveyed in the name of the Company.
Section 10.11 Reliance on Authority of Person Signing Agreement. In the event that a
Member is not a natural person, neither the Company nor any Member will (a) be required to
determine the authority of the individual signing this Agreement to make any commitment or
undertaking on behalf of such Person or to determine any fact or circumstance bearing upon the
existence of the authority of such individual, or (b) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this Agreement on behalf of such
Entity.
Section 10.12 No Remedies Exclusive. To the extent any remedies are provided herein
for a breach of this Agreement, the Certificate or the Law, such remedies shall not be exclusive of
any other remedies the aggrieved party may have, at law or in equity.
Section 10.13 Other Ventures. Each of the Members may engage, directly or indirectly,
in any other business venture or ventures of any nature and description, independently or with
others, and neither the Company nor any of the Members shall have any rights in and to any such
business ventures or the income or profits derived therefrom. The provisions of this section shall
apply to a Member both during the period of its membership in the Company and after withdrawal from
membership in the Company.
SCHEDULE I
TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT
(SCHEDULE OF DEFINITIONS)
(SCHEDULE OF DEFINITIONS)
The terms used in this Agreement with their initial letters capitalized shall have, unless the
context otherwise requires or unless otherwise expressly provided in this Agreement, the meanings
specified in this Schedule I. Any term used but not defined in this Agreement shall have the
meanings set forth in the Law. The singular shall include the plural, and the masculine gender
shall include the feminine and neuter, and vice versa, as the context requires. When used in this
Agreement, the following terms shall have the meanings set forth below:
“Law” means the Delaware Limited Liability Company Act, as the same is amended from
time to time.
“Agreement” means this Second Amended and Restated Operating Agreement of the Company,
as originally executed, including all Schedules and Exhibits, and all of which may be amended from
time to time.
“Assignee” means any “assignee” as that term is used in the Law, and includes any
transferee or recipient of a Transfer of any Unit or Units, or any portion thereof.
“Code” means the Internal Revenue Code of 1986, as amended. All references in this
Agreement to sections of the Code shall include any corresponding provision or provisions of any
succeeding law.
“Entity” means any association, corporation, general partnership, limited partnership,
limited liability partnership, limited liability company, joint stock association, joint venture,
firm, trust, business trust, cooperative, or foreign associations of like structure.
“Interest” means the entire ownership interest of a Member in the Company at any
particular time, including the right of such Member to any and all benefits to which a Member may
be entitled as provided in this Agreement and under the Law, together with the obligations of such
Member to comply with all of the terms and provisions of this Agreement.
“Majority in Interest of the Members” means the Member(s) who hold a majority of the
outstanding Units. “Majority in Interest of the remaining Members” means those Members holding a
majority of the outstanding Units, excluding the Member in question and that Member’s Units. In
this regard, Unit(s) or any portion thereof that are the subject of an effective Transfer to an
Assignee not a Substitute Member shall not be considered outstanding Units.
“Member” or “Members” refers to the parties to this Agreement as indicated on
Exhibit A, and any Additional Members or Substitute Members.
“Operating Agreement” means this Agreement.
“Percentage Interest” means the percentage obtained by dividing the number of Units of
a Member by the total number of outstanding Units of all Members.
“Principal Office” means the principal place of business specified in Section 2.2.
“Substitute Member” means any individual or entity admitted as a Member pursuant to
Section 8.4.
“Transfer” means any “assignment” as that term is used in the Law, and includes any
gift, sale, exchange, assignment, conveyance, alienation or other transfer, whether voluntary or
involuntary, and includes any Transfer to a receiver, bankruptcy trustee’ judgment creditor,
lienholder, holder of a security interest, pledge or other encumbrance, and Transfer upon judicial
order or other legal process (such as a Transfer in connection with divorce proceedings).
“Unit” refers to a unit of measurement of a Member’s Interest as established in
Section 3.1. Whenever reference is made to “Percentage Interest,” a Unit may be converted into the
same by dividing a Member’s number of Units by the total of all Units outstanding. For voting and
other governance purposes, Unit(s) or any portion thereof that are the subject of an effective
Transfer to an Assignee not a Substitute Member shall not be considered outstanding Units.
EXHIBIT A
TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT
NAMES OF MEMBERS; CAPITAL
CONTRIBUTIONS, AND UNITS OF MEMBERS
CONTRIBUTIONS, AND UNITS OF MEMBERS
| Initial | ||||||||
| Capital | Number | |||||||
| Member | Contribution | of Units | ||||||
The LETCO Group, Limited Partnership, a Delaware limited partnership |
$ | 1.00 | 1 | |||||
