OPERATING AGREEMENT
OF
HEARTHMARK, LLC
This Operating Agreement (this "Agreement") of HEARTHMARK, LLC, a
Delaware limited liability company (the "Company"), is entered into as of the
18th day of September, 2003 by and between Quoin, LLC (the "Member") and the
Company.
Pursuant to and in accordance with the Limited Liability Company Act of
the State of Delaware, as amended from time to time (the "LLCA"), the Member and
the Company hereby agree as follows:
1. NAME. The name of the limited liability company shall be HEARTHMARK,
LLC.
2. OFFICE. The principal office of the Company shall be located at 000
Xxxxxxxx Xxxxx Xxxxxx, Xxx, Xxx Xxxx 00000 or such other place or places as the
Member shall determine.
3. TERM. The term of the Company commenced as of the date of filing of
the Certificate of Formation of the Company with the Secretary of State of the
State of Delaware and the Company shall be dissolved and its affairs wound up as
provided in said Certificate, in this Agreement, or as otherwise provided in the
LLCA.
4. PURPOSE. The Company is formed for the purpose of engaging in any
lawful act or activity for which limited liability companies may be organized
under the LLCA and engaging in any and all activities necessary or incidental to
the foregoing.
5. MEMBER. The name and the mailing address of the Member is as
follows:
Name Address
Quoin, LLC 000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, XX 00000
The Member is authorized to admit additional members and/or create
different classes of members.
6. MANAGEMENT; POWERS. The business and affairs of the Company shall be
managed by the Member. The Member is authorized to execute any and all documents
on behalf of the Company necessary or appropriate in connection with the
acquisition, financing, operation, management or development of any property of
the Company. The Member may appoint one or more officers who shall be authorized
to exercise such of the Member's rights and power as designated by the Member.
7. ACTION BY WRITTEN CONSENT. Whenever the Member is required or
permitted to take any action by vote or consent, action may be taken without a
meeting, without prior notice and without a vote, if written consent or consents
setting forth the action taken are signed by the Member or any officers
appointed by the Member, and are delivered to the office of the Company, its
principal place of business, or an employee or agent of the Company.
8. CAPITAL CONTRIBUTIONS. The initial capitalization of the Company by
the Member is set forth on Schedule A.
9. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company, provided however, that
additional capital contributions may be made at such time and in such amounts as
the Member shall determine.
10. MEMBER LOANS. If, at any time, additional funds are needed by the
Company beyond the capital contributed by the Member, the Member may from time
to time make voluntary loans to the Company.
11. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and losses
shall be allocated to the Member as set forth on Schedule A.
12. DISTRIBUTIONS. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member and in accordance
with the same percentages as profits and losses are allocated.
13. ADMISSION OF ADDITIONAL MEMBERS. The Member may cause the Company
to admit one or more additional members to the Company.
14. LIABILITY OF MEMBERS. The Member shall not have any liability for
the obligations or liabilities of the Company.
15. EXCULPATION OF MEMBER. The Member shall not be liable to the
Company for any breach of duty in such capacity, unless otherwise required by
law.
16. INDEMNIFICATION. The Company shall indemnify and hold harmless the
Member, and all members, officers, representatives and other agents of the
Member, to the fullest extent permitted by law from and against any and all
losses, claims, damages, liabilities, expenses (including legal and other
professional fees and disbursements), judgments, fines, settlements and other
amounts (collectively, the "Indemnification Obligations") arising from any and
all claims, demands, actions, suits or proceedings, actual or threatened, in
connection with the management of the business of the Company.
17. GOVERNING LAW. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware, all rights and remedies being governed
by said laws.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Operating Agreement.
HEARTHMARK, LLC,
the Company
By: /s/ Xxxxxxx XxXxxxxxx
-----------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
QUOIN, LLC,
Member
By: /s/ Xxxxxxx XxXxxxxxx
-----------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
SCHEDULE A
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NAME CAPITAL CONTRIBUTION ALLOCATION OF PROFITS AND LOSSES
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Quoin, LLC $21,248,543 100%
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