AMENDED AND RESTATED
OPERATING AGREEMENT
FOR
GROSFELD PARTNERS LLC,
A MICHIGAN LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED OPERATING AGREEMENT ("Agreement") is made and
entered into as of this 30th day of September, 2001, by and between ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as Class A Members, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇"), as
the Class B Member (individually, a "Member" and collectively, the "Members") of
GROSFELD PARTNERS LLC, a Michigan Limited Liability Company (the "Company"), who
agree as follows:
RECITALS
A. The Class A Members previously formed the Company pursuant to the
Operating Agreement for Grosfeld Partners LLC dated on May 23, 2001.
B. Pursuant to Assignments of Membership Interests dated May 23, 2001,
each of ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇") became a Class B Member of the
Company.
C. Pursuant to various documents dated September 30, 2001, ▇▇▇▇▇▇
ceased being a Class B Member in the Company and related transactions occurred
as of September 30, 2001.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the parties hereby agree to amend and restate in its entirety,
the Agreement as follows.
ARTICLE 1
ORGANIZATION
1.1 FORMATION.
The Company was organized as a Michigan Limited Liability
Company pursuant to the Michigan Limited Liability Company Act (the "Act") by
the filing of Articles of Organization (the "Articles") with the Michigan
Department of Consumer and Industry Services, Corporations, Securities and Land
Development Bureau on May 23, 2001.
1.2 NAME.
The name of the Company shall be GROSFELD PARTNERS LLC. The
Company may also conduct its business under one or more assumed names.
1.3 PURPOSES.
The purposes for which the Company is formed are to engage in
any activity within the purposes for which a limited liability company may be
formed under the Act.
1.4 DURATION.
The Company shall continue in existence for a perpetual term,
or until the Company shall be sooner dissolved and its affairs wound up in
accordance with the Act or this Agreement.
1.5 OFFICES AND RESIDENT AGENT.
The principal office of the Company shall be at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office
within or without the State of Michigan as the Members may from time to time
determine. The Registered Office and Resident Agent of the Company shall be as
designated in the Articles or any amendment thereof.
1.6 DEFINITIONS.
The terms set forth on Exhibit A shall have the meanings as
set forth therein when used in this Agreement.
ARTICLE 2
BOOKS, RECORDS AND ACCOUNTING
2.1 BOOKS AND RECORDS.
The Company shall maintain complete and accurate books and
records of its business and affairs as required by the Act and such books and
records shall be kept at the Company's principal office. Each Member shall have
complete access to all books and records of the Company at the Company's offices
during normal business hours.
2.2 FISCAL YEAR; ACCOUNTING.
The Company's fiscal year shall be the calendar year. The
particular accounting methods and principles to be followed by the Company shall
be chosen by a Majority in Interest of the Class A Members.
2.3 CAPITAL ACCOUNTS.
The Company shall maintain a separate "Capital Account" for
each Member. Each Member's Capital Account shall be increased by the Member's
capital contributions and the Member's share of any Profits and items of income
or gain of the Company. Each Member's Capital Account shall be decreased by
distributions made to the Member and the Member's share of any Losses and items
of expense or loss of the Company. In accordance with Section
1.704-
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1(b)(2)(iv)(q) of the Treasury Regulations, each Member's Capital Account shall
be adjusted in a manner that maintains equality between the aggregate of all of
the Members' Capital Accounts and the amount of capital reflected on the
Company's balance sheet as computed for book purposes.
2.4 TAX MATTERS PARTNER.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as a Class A Member, is designated as the "Tax
Matters Partner" for the Company within the meaning of Section 6231(a)(7) of the
Code. The Tax Matters Partner shall have full power and authority to act as such
for the Company and the Members, with all the rights and responsibilities of
that position described in Sections 6222 through 6231 of the Code.
Notwithstanding the foregoing, the duty of the Tax Matters Partner to keep each
Member informed of administrative and judicial proceedings involving tax issues
related to the Company, its property or its business shall be limited to a duty
to inform each Member of the beginning, completion, and results of such
proceedings. The Tax Matters Partner (and the Membership Interest of the Tax
Matters Partner) shall be free from all claims by the Company or the other
Members by reason of any act performed for or on behalf of the Company as the
Tax Matters Partner. The Company shall indemnify and hold harmless the Tax
Matters Partner from any claim, demand or liability, and from any loss, cost or
expense, including, but not limited to, attorneys' fees and court costs, which
may be made or imposed upon him by reason of any act performed for or on behalf
of the Company as Tax Matters Partner. The Class A Members may designate a new
Tax Matters Partner from time to time by written notice to the Members signed by
a Majority in Interest of the Class A Members.
2.5 TAX AND FINANCIAL INFORMATION.
As soon as reasonably practicable following the end of each
fiscal year, the Tax Matters Partner, at the expense of the Company, shall cause
to be prepared and furnished to the Members all information relating to the
Company that is necessary for the preparation of the Members' federal income tax
returns, and such other financial information as the Tax Matters Partner decides
to have prepared. All such financial statements shall be unaudited, unless the
Tax Matters Partner determines otherwise.
ARTICLE 3
CAPITAL CONTRIBUTIONS
3.1 INITIAL CAPITAL CONTRIBUTIONS.
(a) Each Member shall contribute to the capital of the Company
the amounts set forth opposite such Member's name on Exhibit B.
(b) No interest shall accrue on any capital contribution and
no Member shall have any right to withdraw or to be repaid any capital
contribution except as provided in this Agreement.
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3.2 ADDITIONAL CAPITAL CONTRIBUTIONS.
The Members shall contribute to the capital of the Company
such amounts as a Majority in Interest of the Class A Members may determine to
be necessary or appropriate to conduct the business or carry out the purposes of
the Company. Any such additional capital shall be contributed by the Members pro
rata, in proportion to their Percentage Interests.
3.3 LOANS.
In the event that a Majority in Interest of the Class A
Members determine, in their sole discretion, that the Company requires
additional funds to meet its obligations and the Members are unwilling to
contribute their share of such additional funds to the capital of the Company
pursuant to Section 3.2 above, then such Members shall be permitted, but not
obligated, to advance such funds to the Company as a loan. Any such loan shall
(i) be unsecured, unless all of the Members agree otherwise; (ii) bear interest
at the prime rate as publicly announced from time to time by the Company's
principal bank; and (iii) be repayable pursuant to Section 7.2.
ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS
4.1 ALLOCATIONS OF PROFIT AND LOSS.
(a) After giving effect to the allocations set forth in
Sections 4.1(b) through 4.1(g) hereof, Profit and Loss for any fiscal year shall
be allocated among the Members so that the Capital Account of each Member,
increased by such Member's "share of partnership minimum gain" and "share of
partner nonrecourse debt minimum gain" (as so increased, a Member's Capital
Account is hereinafter referred to as such Member's "Augmented Capital
Account"), is, as nearly as possible, positive in an amount equal to the cash
the Company would distribute to such Member if (i) the Company liquidated by
selling all of its properties for the values at which they are carried on the
Company's balance sheet as computed for book purposes (within the meaning of
Section 2.3 hereof); (ii) the proceeds of such sales, and any other cash of the
Company, were used to satisfy the Company's debts in accordance with, and to the
extent required by, their terms; and (iii) the Company distributed any remaining
cash to the Members pursuant to Section 4.2 (disregarding Section 4.2(c))
hereof; provided, however, that no Loss shall be allocated to any Member for any
fiscal year to the extent that such Loss would create or increase a deficit in
such Member's Adjusted Augmented Capital Account (as hereinafter defined).
(b) After giving effect to the allocations set forth in
Sections 4.1(c) through 4.1(g) hereof, items of gross income and gain shall be
allocated to each Member in an amount and manner sufficient to eliminate, as
quickly as possible, any deficit in such Member's Adjusted Augmented Capital
Account to the extent that such deficit is created or increased by any
unexpected adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d) (4)-(6) of the Treasury Regulations. This Section 4.1(b)
and the proviso of Section 4.1(a) are
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intended to comply with the "alternate test for economic effect" in Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted
consistently therewith.
(c) If, for a fiscal year, there is a net decrease in "partner
nonrecourse debt minimum gain," then each Member shall be allocated items of
gross income or gain equal to such Member's share of such net decrease,
determined under Section 1.704-2(i) of the Treasury Regulations. However, in
accordance with Section 1.704-2(i)(4) of the Treasury Regulations, the preceding
sentence shall not apply to the extent that the net decrease in "partner
nonrecourse debt minimum gain" results from (i) a capital contribution from such
Member which is used to pay a liability of the Company; or (ii) a refinancing or
lapse of a guarantee of, or any other change in, a liability of the Company that
causes such liability to become partially or wholly a "nonrecourse liability."
(d) If, for a fiscal year, there is a net decrease in
"partnership minimum gain," then each Member shall be allocated items of income
and gain equal to such Member's share of such net decrease, determined in
accordance with Sections 1.704-2(f) and 1.704-2(g) of the Treasury Regulations.
However, in accordance with Section 1.704-2(f)(2) of the Treasury Regulations,
the preceding sentence shall not apply to the extent that the net decrease in
"partnership minimum gain" results from (i) a capital contribution from such
Member which is used to pay a liability of the Company; or (ii) a refinancing or
guarantee of, or any other change in, a liability of the Company that causes
such liability to become partially or wholly a "partner nonrecourse debt" for
which such Member bears the economic risk of loss.
(e) Any "partner nonrecourse deductions" for any fiscal year
shall be allocated to the Member who bears the economic risk of loss with
respect to the "partner nonrecourse debt" to which such "partner nonrecourse
deductions" are attributable in accordance with Section 1.704-2(i)(l) of the
Treasury Regulations.
(f) Any "partner nonrecourse deductions" for any fiscal year
shall be allocated among the Members based on their Percentage Interests. For
purposes of this Section 4.1:
(1) "Adjusted Augmented Capital Account" means, with
respect to any Member as of the end of any fiscal year, such Member's
Augmented Capital Account (i) reduced by those anticipated allocations,
adjustments and distributions described in Section
1.704-1(b)(2)(ii)(d)(4)-(6) of the Treasury Regulations; and (ii)
increased by the amount of any deficit in such Member's Capital Account
that such Member is deemed obligated to restore under Section
1.704-1(b)(2)(ii)(c) of the Treasury Regulations as of the end of such
fiscal year.
(2) "Profit" and "Loss" each means, for each fiscal
year of the Company or other period, the Company's profit or loss for
federal income tax purposes, adjusted as follows:
(A) Any tax exempt income described in
Section 705(a)(1)(B) of the Code shall be added to
such taxable profit or loss;
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(B) Any nondeductible expenses described in
Section 705(a)(2)(B) of the Code shall be subtracted
from such taxable profit or loss; and
(C) Notwithstanding the foregoing, any items
of income, gain, expense or loss specially allocated
pursuant to any of Sections 4.1(b) through 4.1(f)
above shall be disregarded and not taken into account
in determining Profit or Loss.
(3) All terms set off in quotation marks shall have
the meanings ascribed to them in Section 1.704-2 of the Treasury
Regulations.
(g) It is intended that the amount to be distributed to a
Member pursuant to Section 7.2 of this Agreement shall equal the amount such
Member would receive if liquidation proceeds were instead distributed in
accordance with Section 4.2 (disregarding Section 4.2(c)) of this Agreement.
This intended distribution amount for a Member is referred to as such Member's
"Targeted Distribution Amount". Notwithstanding any preceding provision to the
contrary in this Section 4.1, if upon a termination and liquidation of the
Company, any Member's ending Capital Account balance immediately prior to the
distributions to be made pursuant to Section 7.1 of this Agreement would
otherwise be less than such Member's "Targeted Distribution Amount", then, to
the extent amended tax returns can be filed for prior fiscal years of the
Company, such Member shall be specially allocated items of income or gain for
such years, and items of loss or deduction for such years shall be allocated
away from such Member to the other Members, until Profit or Loss for the year(s)
of termination and liquidation of the Company can be allocated so as to cause
such Member's actual Capital Account balance to equal the Targeted Distribution
Amount for such Member (and such Profit or Loss shall be so allocated).
(h) Anything contained in this Section 4.1 to the contrary
notwithstanding, the allocation of Profit, Loss and items of income, gain,
expense or loss for any fiscal year of the Company during which a person
acquires a Membership Interest shall take into account the Members' varying
interests in the Company for such fiscal year pursuant to any method permissible
under Section 706 of the Code that is selected by the Members.
4.2 DISTRIBUTIONS.
The Excess Cash of the Company shall be distributed to the
Members pro rata, based on their Percentage Interests, at such times as a
Majority in Interest of the Class A Members shall determine. As used in this
Agreement, "Excess Cash" means (i) all cash and cash equivalent assets of the
Company, less (ii) any Reserves. In the event of any inconsistency between the
foregoing provisions of this Section 4.2 and the provisions of Section 7.2, the
latter provisions shall govern.
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ARTICLE 5
ASSIGNMENT OF MEMBERSHIP INTERESTS
5.1 RESTRICTIONS ON TRANSFER.
No Member shall be permitted to sell, assign, transfer,
exchange, mortgage, pledge, grant, hypothecate or otherwise dispose of such
Member's Membership Interest, other than to another Member; a descendant of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇; a descendant of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; a trust for the benefit of one
or more of a Member, a descendant of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or a descendant of ▇▇▇▇▇
▇▇▇▇▇▇▇▇; or, if the Member is a Trust, to the beneficiary of such Trust, except
with the written consent of a Majority in Interest of the Class A Members. Any
attempted disposition of a Member's Membership Interest, or any portion thereof,
in violation of the preceding sentence is null and void ab initio and the
Company shall not be obligated to recognize any such attempted disposition.
5.2 ADMISSION OF SUBSTITUTE MEMBERS.
An assignee of a Member's Membership Interest shall be
admitted as a substitute member and shall be entitled to all the rights and
powers of the assignor, provided that (i) a Majority in Interest of the Class A
Members consent to the admission of such assignee as a substitute member and
(ii) the assignee accepts, adopts, approves and agrees, in writing, to be bound
by all of the terms and provisions of this Agreement. If admitted, the assignee,
as a substitute member, shall have, to the extent assigned, all of the rights
and powers, and shall be subject to all of the restrictions and liabilities, of
the assigning Member. The assignor shall not thereby be relieved of any of its
unperformed obligations to the Company.
5.3 WITHDRAWAL.
Subject to the other provisions of this Article 5, no Member
shall have the right to withdraw from the Company unless the Majority in
Interest of the Class A Members consents. If a Member withdraws in violation of
this provision, then (i) such Member's Membership Interest shall be forfeited
and such Member shall cease to have any interest in, or rights with respect to,
the Company; and (ii) such Member shall be liable for its unperformed
obligations to the Company and any damages caused by its withdrawal.
5.4 DEATH, INSOLVENCY OR BANKRUPTCY OF A MEMBER.
(a) Upon (i) the death, incompetency, insolvency, or
bankruptcy of a Member, (ii) the assignment of all or part of a Member's
Membership Interest to one or more creditors by execution, bankruptcy, or
otherwise, or (iii) the occurrence of any event that terminates the continued
membership of a Member in the Company, the Company shall not dissolve. A Member
who is insolvent or bankrupt or whose Membership Interest is assigned in whole
or in part to one or more creditors by execution, bankruptcy, or otherwise is
referred to as a "Limited Member." A Member (i) who is an individual and who is
deceased or incompetent or (ii) who is a corporation, trust, or entity which is
dissolved or terminated is referred to as a "Disabled Member."
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(b) The Representative of the Disabled Member shall, for the
purpose of settling the estate, have all of the rights of such Disabled Member,
including any power such Member would have had to assign such Member's
Membership Interest.
(c) The Representative of a Limited Member shall not be a
Member, shall not have any of the rights of such Limited Member, and shall only
be an assignee of such Limited Member's Membership Interest. A Limited Member
shall not be a Manager and shall not have any right to vote with respect to
naming a successor Manager, dissolving the Company, or other decisions as
provided in Sections 5.1, 6.1, 7.1 hereof. If a trust is a Member and if the
settlor of such trust becomes insolvent or bankrupt or all or part of such
trust's Membership Interest is assigned to one or more creditors of the settlor,
the trust shall be deemed to be a Limited Member.
(d) The estate of a Disabled Member (and all persons who are
liable for the obligations of such Disabled Member) shall continue to be liable
for the obligations of such Disabled Member. The estate of a Limited Member (and
all persons who are liable for the obligations of such Limited Member) shall
continue to be liable for the obligations of such Limited Member.
(e) The death, incompetency, insolvency, or bankruptcy of the
Trustee of a trust which is a Member shall not cause such Member to be a
Disabled Member. Instead, such trust shall continue to be the Member with the
successor Trustee of such trust exercising all rights of such Member.
ARTICLE 6
MANAGEMENT
6.1 MANAGEMENT.
(a) The business and affairs of the Company shall be managed
by a manager within the meaning of the Act (the "Manager"). Initially, the
Manager shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Manager may resign upon the giving of at
least 30 days' advance written notice to the Members. In the event of the death,
incompetency or resignation of the Manager, a Majority in Interest of the Class
A Members shall elect a replacement. A Majority in Interest of the Class A
Members may remove the Manager and elect a replacement.
(b) Subject to policies established by, and the superintending
control of, a Majority in Interest of the Class A Members and except as may
otherwise be provided in this Agreement, the ordinary and usual decisions
concerning the business and affairs of the Company shall be made by the Manager
and the Manager shall have the power, on behalf of the Company, to do all things
necessary or convenient to carry out the business and affairs of the Company,
including the power to: (i) purchase, lease or otherwise acquire any real or
personal property; (ii) sell, convey, mortgage, grant a security interest in,
pledge, lease, exchange or otherwise dispose or encumber any real or personal
property; (iii) open one or more depository accounts and make deposits into and
checks and withdrawals against such accounts; (iv) borrow money
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and incur liabilities and other obligations; (v) enter into any and all
agreements and execute any and all contracts, documents and instruments; (vi)
engage employees and agents, define their respective duties, and establish their
compensation or remuneration; (vii) obtain insurance covering the business and
affairs of the Company and its property and the lives and well being of its
employees and agents; (viii) commence, prosecute or defend any proceeding in the
Company's name, and (ix) participate with others in partnerships or joint
ventures.
(c) The Majority in Interest of the Class A Members shall,
subject to Section 6.3(a), provide for reasonable compensation to be paid to the
Manager for services rendered to the Company.
6.2 LIMITATIONS.
Notwithstanding the foregoing and any other provision
contained in this Agreement to the contrary, no act shall be taken, sum
expended, decision made, obligation incurred or power exercised by the Manager
on behalf of the Company except with the vote of a Majority in Interest of the
Class A Members with respect to (i) the sale, exchange, lease or other transfer
of all or substantially all of the assets and property of the Company other than
in the ordinary course of business; (ii) any merger or dissolution of the
Company; (iii) any transaction involving an actual or potential conflict of
interest between the Manager and the Company; or (iv) any amendment or
restatement of the Articles.
6.3 STANDARD OF CARE; LIABILITY.
(a) The Manager shall discharge the Manager's duties as a
Manager in good faith, with the care an ordinarily prudent person in a like
position would exercise under similar circumstances and in a manner the Manager
reasonably believes to be in the best interests of the Company.
(b) No Manager, directly or indirectly, shall enter into any
agreements with the Company, whether such agreements benefit the Company or the
Members, without the prior approval of all of the Members; provided, however,
that subject to Sections 6.1(c) and 6.3(a), the Manager and the Company have the
power to enter into an agreement by which the Company will pay reasonable
compensation to the Manger for services rendered.
(c) A Manager shall not be liable for monetary damages to the
Company for any breach of any such management duties, except for receipt of a
financial benefit to which the Manager is not entitled, voting for or assenting
to a distribution to Members in violation of this Agreement or the Act, or a
knowing violation of the law.
6.4 COMPETITION.
Each Member shall have the right to engage in any other
business and to compete with the business of the Company, and neither the
Company nor any other Member shall have any rights or claims on account of such
activities.
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ARTICLE 7
DISSOLUTION AND WINDING UP
7.1 DISSOLUTION.
The Company shall dissolve and its affairs shall be wound up
on the first to occur of the following events:
(a) at any time specified in the Articles or this Agreement;
(b) upon the happening of any event specified in the Articles
or this Agreement as causing a dissolution; or
(c) the decision of a Majority in Interest of the Class A
Members to dissolve the Company.
7.2 WINDING UP.
Upon dissolution, the Company shall cease carrying on its
business and affairs and shall commence the winding up of the Company's business
and affairs and the liquidation of its assets. Upon the winding up of the
Company, the assets of the Company shall be distributed first to creditors to
the extent permitted by law, in satisfaction of the Company's debts, liabilities
and obligations and then to Members in accordance with their Capital Account
balances, determined after the allocation of all Profits, Losses and items of
income, gain, expense or loss. Such proceeds shall be paid to such Members
within ninety (90) days after the date of winding up.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 INDEMNIFICATION.
Except as otherwise provided in the Act, the Company shall
indemnify, defend and hold harmless a Member from any claim or liability, and
from any loss, cost or expense, including, but not limited to, attorneys' fees
and court costs, which may be made or imposed upon such Member by reason of any
act performed for or on behalf of the Company or in furtherance of the Company's
business, or any omission to act, except for acts and omissions that constitute
willful misconduct, fraud, bad faith or improper distributions to the extent set
forth in the Act.
8.2 TERMS.
Nouns and pronouns will be deemed to refer to the masculine,
feminine, neuter, singular and plural, as the identity of the person or persons,
firm or corporation may in the context require.
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8.3 ARTICLE AND SECTION HEADINGS.
The Article and Section headings contained in this Agreement
have been inserted only as a matter of convenience and for reference, and in no
way shall be construed to define, limit or describe the scope or intent of any
provision of this Agreement.
8.4 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.
8.5 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. This Agreement
supersedes any and all other agreements, either oral or written, among the
parties hereto with respect to the subject matter hereof.
8.6 SEVERABILITY.
The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
8.7 AMENDMENT.
This Agreement shall not be amended except by written consent
of a Majority in Interest of the Class A Members; provided, however, that this
Agreement shall not be amended so as to materially and adversely affect the
rights of the Class B Members except by written consent of all of the Members.
8.8 NOTICES.
Any notice permitted or required under this Agreement shall be
conveyed in writing to the party at the address reflected under the signature of
such party or at such other address as a party may provide pursuant to a notice
given to the other parties hereunder and will be deemed to have been given, when
deposited in the United States mail, postage prepaid, or when delivered in
person, or by courier or by facsimile transmission.
8.9 BINDING EFFECT.
Subject to the provisions of this Agreement relating to
transferability, this Agreement will be binding upon and shall inure to the
benefit of the parties, and their respective heirs, successors and assigns.
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8.10 GOVERNING LAW.
This Agreement is being executed and delivered in the State of
Michigan and shall be governed by, and construed and enforced in accordance
with, the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties hereto make and execute this Agreement
as of the date first above written.
CLASS A MEMBERS:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CLASS B MEMBER:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT A
TO GROSFELD PARTNERS LLC
AMENDED AND RESTATED
OPERATING AGREEMENT
"ACT" has the meaning specified in Section 1.1.
"ADJUSTED AUGMENTED CAPITAL ACCOUNT" has the meaning specified in
Section 4.1(g)(1).
"AGREEMENT" means the Amended and Restated Grosfeld Partners LLC
Operating Agreement.
"ARTICLES" has the meaning specified in Section 1.1.
"AUGMENTED CAPITAL ACCOUNT" has the meaning specified in Section
4.1(f)(1).
"BANKRUPTCY" shall mean the filing of a bankruptcy petition or similar
petition for relief from creditors in federal, state or bankruptcy court;
provided that if a petition is not filed by or on behalf of the debtor and is
dismissed within ninety (90) days after filing, no bankruptcy shall be deemed to
have occurred. A bankruptcy shall be deemed to have occurred upon the filing of
a petition by or on behalf of the debtor or upon the expiration of the ninety
(90) day period described in the preceding sentence in the case of a petition
not filed by or on behalf of the debtor and not dismissed within such period.
"CAPITAL ACCOUNT" has the meaning specified in Section 2.3.
"CLASS A MEMBER" shall mean Members listed on Exhibit B, or their
successors or assigns admitted to the Company as a Member in respect of a Class
A Membership Interest pursuant to Article 5 hereof.
"CLASS A UNIT" shall mean a unit of Class A Membership Interest
representing a voting interest in the Company.
"CLASS B MEMBER" shall mean those Members listed on Exhibit B, or their
successors or assigns admitted to the Company as a Member in respect of a Class
B Membership Interest pursuant to Article 5 hereof.
"CLASS B UNIT" shall mean a unit of Class B Membership Interest
representing a non-voting interest in the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DISABLED MEMBER" has the meaning specified in Section 5.4(a).
"EXCESS CASH" has the meaning specified in Section 4.2.
"INCOMPETENCY" means, with respect to an individual, a final
determination or order by a court of competent jurisdiction that such individual
is unable to manage his or her property and affairs.
"LIMITED MEMBER" has the meaning specified in Section 5.4.
"LOSS" has the meaning specified in Section 4.1(f)(2).
"MAJORITY IN INTEREST" of any Class of Members shall mean those Members
holding a majority of the Percentage Interests of that Class.
"MANAGER" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the successor as provided in
Section 6.1.
"MEMBER" AND "MEMBERS" have the respective meanings specified in the
introductory paragraph to this Agreement.
"MEMBERSHIP INTEREST" shall mean all of the right, title and interest
of a Member (in his capacity as a member of the Company within the meaning of
the Act) in and to the Company.
"PERCENTAGE INTERESTS" means, in the case of each Member, the
Percentage Interest shown next to such Member's name on Exhibit B.
"PROFIT" has the meaning specified in Section 4.1(f)(2).
"REPRESENTATIVE" means with respect to a Disabled Member, (1) the
personal representatives, executors, or administrators of the estate of a
deceased Member, (2) the committee or other legal representative of an insane,
incompetent, or bankrupt Member, or (3) the legal representative or successor of
a Member which is a corporation, trust, or other entity which is dissolved or
terminated.
"RESERVES" means any amounts that a Majority in Interest of the Class A
Members reasonably decides to retain in the Company (-A-) as reserves to pay
expenses and meet obligations of the Company or (-B-) for future investment in
accordance with the purposes of the Company.
"SECTION" means a section of the Agreement.
"TARGETED DISTRIBUTION AMOUNT" has the meaning specified in Section
4.1(g).
"TAX MATTERS PARTNER" has the meaning specified in Section 2.4.
2
EXHIBIT B
TO GROSFELD PARTNERS LLC
OPERATING AGREEMENT
PERCENTAGE INTERESTS
--------------------
MEMBERS CLASS A CLASS B
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.915% -
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.915% -
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - 96.17%
--------- ---------
3.83% 96.17%
