FIRST AMENDMENT TO OPERATING AGREEMENT FOR PERFORMANCE CAPITAL MANAGEMENT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY THIS FIRST AMENDMENT TO OPERATING AGREEMENT FOR PERFORMANCE CAPITAL MANAGEMENT, LLC, a California limited liability company (this...
EXHIBIT
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FIRST
AMENDMENT TO
FOR
PERFORMANCE
CAPITAL MANAGEMENT, LLC,
A
CALIFORNIA LIMITED LIABILITY COMPANY
THIS
FIRST AMENDMENT TO OPERATING AGREEMENT FOR PERFORMANCE CAPITAL MANAGEMENT, LLC,
a California limited liability company (this "First Amendment") is made as of
the____day of___________________, 2002, by and among PERFORMANCE ASSET
MANAGEMENT FUND, LTD., a California limited partnership, PERFORMANCE ASSET
MANAGEMENT FUND II, LTD., a California limited partnership, PERFORMANCE ASSET
MANAGEMENT FUND III, LTD., a California limited partnership, PERFORMANCE ASSET
MANAGEMENT FUND IV, LTD., a California limited partnership, and PERFORMANCE
ASSET MANAGEMENT FUND V, LTD., a California limited partnership. This First
Amendment amends that certain Operating Agreement for PERFORMANCE CAPITAL
MANAGEMENT, LLC, a California limited liability company (the "Operating
Agreement"). Except as otherwise amended hereby, the Operating Agreement shall
continue in full force and effect. Capitalized terms which are used herein and
are defined in the Operating Agreement shall have the same meanings herein as
therein unless provided otherwise herein. The Operating Agreement is amended in
the following respects only:
THE
FOLLOWING SECTIONS OF THE OPERATING AGREEMENT ARE HEREBY AMENDED TO READ IN FULL
AS SET FORTH HEREIN:
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1.
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RECITALS:
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On
January 14, 2002, Articles of Organization for Performance Capital Management,
LLC, a California limited liability company (the "Company"), were filed with the
California Secretary of State.
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2.
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ARTICLE
I - DEFINITIONS:
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1.7 "Articles"
shall mean the Articles of Organization for the Company originally filed with
the California Secretary of State on January 14, 2002, as the same shall be
amended and/or restated from time to time.
Section
1.20 Effective Date Unreturned Capital, is hereby amended by
replacing Exhibits D and D-l attached to the Operating Agreement with Exhibits D
and D-l attached to this Amendment.
Section
1.34 is hereby amended to reflect that the plan of reorganization
was confirmed on December 21, 2001 by an order entered on January 24,
2002.
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3.
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ARTICLE
II - ORGANIZATIONAL MATTERS:
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2.3 Term
The term of the Company commended on January 14, 2002, and the Company will
continue and have perpetual existence unless it is sooner dissolved as provided
in this Agreement.
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4.6 Certain
Matters Reserved to the Members. No Member, acting solely in the capacity as a
Member, shall have the right to take part in the management of the Company or
transact any business on its behalf. Notwithstanding the foregoing, the Members
shall have the right to vote upon the following matters:
(a) Election of any successor Director,
except with respect to any mid-term vacancy on the Board which may be filled by
the Board of Directors;
(b) Amendment of the
Articles;
(c) Amendment of this
Agreement;
(d) Dissolution of the Company as
provided in subdivision (b) of Section 17350 of the Corporations
Code;
(e) Merger of the Company as provided
in Section 17551 of the Corporations Code; and
(f) Sale of all or substantially all of
the assets of the Company.
4.7.1 Meetings
of Members. The annual meeting of the Members shall be held on the second Monday
in May of every year at the hour of 10:00 a.m. Pacific Standard Time, at such
place within the State of California as the Board of Directors may fix from time
to time, for the purposes of electing directors and transacting such other
business as properly may come before the meeting. If the day fixed for the
annual meeting is a legal holiday, that meeting shall be held on the next
succeeding Business Day. A different time for holding the annual meeting of the
Members may be fixed from time to time by the Board of Directors. Special
meetings may be called by the Board of Directors or by a Member or Members who
in the aggregate hold Percentage Interests equal to or greater than ten percent
(10%). Special meetings may be held at such date, time and place within the
State of California as the Board may fix.
4.7.4 Quorum
and Vote Required for Action. Members present in person or by proxy whose
aggregate Percentage Interests exceed thirty-three and one-third percent (33
l/3%) of the aggregate Percentage Interests of all Members entitled to vote at a
meeting of the Members shall constitute a quorum at that meeting. If a quorum is
present at a meeting, the act of Members present whose aggregate Percentage
Interests constitute a majority of the aggregate Percentage Interests of all
Members present at that meeting shall be the act of the Members, unless a
different number of votes is required by Applicable Law or this Agreement. A majority of a
quorum shall be sufficient to amend this Agreement. A majority of the
aggregate Percentage Interests of all Members shall be required to amend the
Articles. If a quorum is not present at a meeting, then Members present whose
aggregate Percentage interests constitute a majority of the aggregate Percentage
Interests of all Members present at that meeting may adjourn the meeting from
time to time without further notice. At an adjourned meeting at which a quorum
is present, any business may be transacted that might have been transacted at
the original meeting.
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5.2.4 Term.
Unless a Director resigns or is removed by the affirmative vote of Members who
in the aggregate hold a majority of the Percentage Interests at a meeting called
expressly for that purpose, such Director shall serve in such capacity for a
two-year term and shall serve until his or her successor is duly elected.
The blank in Section 5.2.5
Compensation, is hereby filled in with $1,500 as the amount of compensation per
meeting payable to Directors for attending meetings of the Board of
Directors.
A new Section 5.2.7 shall be added as follows:
5.2.7 Vacancies.
(a) A vacancy on the Board of
Directors shall be deemed to exist (1) if a Director dies, resigns, or is
removed by the Members or an appropriate court; (2) if the Board of Directors
declares vacant the office of a Director who has been convicted of a felony or
declared of unsound mind by an order of court; (3) if the authorized number of
Directors is increased; or (4) if at a Members' meeting the Members fail to
elect the full authorized number of Directors. Vacancies (except for those
caused by a Director's removal) may be filled by approval of the Board, or, if
the number of Directors then in office is less than a quorum, by (A) the
affirmative vote of a majority of the Directors then in office at a meeting held
pursuant to notice or waiver of notice complying with the requirements of this
Agreement by written consent, or (B) a sole remaining Director.
(b) Vacancies on the Board caused by
the removal of a Director (except for vacancies created when the board declares
the office of a Director vacant as provided in clause (2) of subsection (a) of
this section) may be filled only by the Members.
(c) Any Director may resign effective
on giving written notice to the Board of Directors, unless the notice specifies
a later effective date. If the resignation is effective at a future time, the
Board of Directors may elect a successor to take office when the resignation
becomes effective.
(d) The Members may elect a Director
at any time to fill a vacancy not filled by the Board of Directors.
(e) The term of office of a Director
elected to fill a vacancy shall run until the end of the term of the Director
being replaced, and the incoming Director shall in any event hold office until a
successor is elected and qualified.
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6.
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ARTICLE
VI - TRANSFER AND ASSIGNMENT OF
INTERESTS:
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6.1 Transfer
of Interests. No Member shall be entitled to Transfer all or any part of its
Membership Interest, including the Economic Interest inherent in the Membership,
except with the prior written Approval of the Board of Directors, which approval
may be given or withheld, conditioned or delayed (as allowed by this Agreement
or the Act), as the Board of Directors may determine in its sole discretion and
no transfer of a Membership Interest or of the Economic Interest inherent in the
Membership Interest shall be effective unless and until the transferor obtains
written Approval of the Board of Directors. Further, the Board of Directors, in
its sole discretion, may approve the transfer of the Economic Interest inherent
in the Membership Interest without approving the transferee as a substitute
Member. Notwithstanding anything in this Agreement to the contrary, no Transfer
of a Membership Interest in the Company shall be made if such Transfer or the
transferee's ownership of such Membership Interest in the Company, as the case
may be, would:
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(a) result by itself, or in combination
with any other previous Transfers, in the termination of the Company as a
partnership for federal income tax purposes;
(b) result in the violation of the
Securities Act of 1933, as amended, or any other applicable federal or state
laws;
(c) constitute a violation of or a
default (or an event that, with notice or the lapse of time or both, would
constitute a default) under, or result in an acceleration of any Indebtedness or
payment under, any contract, agreement, note, mortgage, loan agreement,
instrument or document to which the Company is a party; or
(d) be a Transfer to an individual who
is not legally competent or who has not achieved his or her majority under the
law of the state (excluding trusts for the benefit of minors).
6.2.1 Substitution
of Members. A transferee of a Membership Interest shall have no right to become
a substitute Member and may become a substitute Member only if all of the
following conditions are satisfied:
(a) the Board of Directors approves in
writing admission of the transferee as a substitute Member, which approval may
be given or withheld, conditioned or delayed (as allowed by this Agreement or
the Act), as the Board of Directors may determine in its sole
discretion;
(b) a duly executed and acknowledged
instrument of assignment that is reasonably satisfactory in form and substance
to the Board of Directors is filed with the Company setting forth the intention
of the transferor to Transfer its interest in the Company;
(c) the transferor and transferee
execute and acknowledge such other instruments with such additional covenants as
the Board of Directors may request, in their sole discretion, which shall
include, without limitation, an instrument pursuant to which the transferee
agrees to be bound by the terms of this Agreement; and
(d) the assignee pays to the Company
the reasonable costs and expenses of the Company incurred in connection with
such assignment.
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6.3
Transfer of Economic Interest.
Upon any approved Transfer of a Membership Interest, unless the transferee is
admitted as a substitute Member, the transferee shall be only an Economic
Interest Owner and shall be entitled only to receive, to the extent assigned,
the distributions and the allocations of income, gains, losses, deductions,
credit or similar items to which the assignor Member would be entitled (the
"Economic Rights"). Except for the Economic Rights, the Economic Interest Owner
shall not have any rights of a Member ("Member Rights"), including, without
limitation, the right to vote or to participate in management or, except as
otherwise provided in the Act, any right to information concerning the business
and affairs of the Company. Further, upon a Transfer of an Economic Interest,
all Member Rights arising pursuant to this Agreement or applicable law which
were inherent in the Membership Interest from which the Economic Interest was
derived, other than the Economic Rights, shall be eliminated and no one,
including, without limitation, the Member who transferred the Economic Interest,
shall have any rights with respect to the Member Rights.
Section
6.5 Transfers
Pursuant to the Plan of Reorganization, is hereby amended by replacing the
Exhibits C-l and D-l attached to the Operating Agreement with the Exhibits C-l
and D-l attached to this Amendment.
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7.
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ARTICLE
X-ACCOUNTING, RECORDS, REPORTING BY
MEMBERS:
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The blank
in Section 10.6 Tax Matters Member, is hereby filled in with Xxxxxx X. Woodworm
to act as "Tax Matter Partner" as that term is defined in
Section
6231(a)(7) of the Code.
IN
WITNESS WHEREOF, all of the Members of PERFORMANCE CAPITAL MANAGEMENT, LLC, a
California limited liability company, have executed this First Amendment,
effective as of the date written above.
PERFORMANCE
ASSET MANAGEMENT
FUND,
LTD., a California limited partnership
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By:
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NOD,
INC., general partner
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By:
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Name:
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Title:
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PERFORMANCE
ASSET MANAGEMENT
FUND II,
LTD., a California limited partnership
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By:
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NOD,
INC., general partner
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By:
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Name:
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Title:
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5
FUND III,
LTD., a California limited partnership
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By:
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NOD,
INC., general partner
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By:
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Name:
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Title:
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PERFORMANCE
ASSET MANAGEMENT
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FUND
IV, LTD., a California limited partnership
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By:
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NOD,
INC., general partner
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By:
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Name:
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Title:
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PERFORMANCE
ASSET MANAGEMENT
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FUND
V, LTD., a California limited partnership
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By:
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NOD,
INC., general partner
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By:
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Name:
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Title:
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EXHIBIT
4.1
January
14, 2002
ORGANIZED
UNDER THE LAWS OF THE STATE OF CALIFORNIA
NUMBER
INTEREST(S)
Performance
Capital Management, LLC
The
Operating Agreement of the company contains restrictions on
transfer.
This
Certifies that _______________________________________________is the Registered
holder of _________________ Membership Interest(s) of the above named Company,
transferable only on the books of the Company by the holder hereof in person or
by Attorney upon surrender of this Certificate properly endorsed and in
accordance with the terms and conditions of the Articles of Organization and the
Operating Agreement of the Company, as amended to the date of transfer, copies
of which may be inspected and copied during normal business hours at the
principal office of the Company.
In Witness Whereof, the said Company
has caused this Certificate to be signed by its duly authorized Manager(s) or
Officer(s) and its Seal to be
hereunto
affixed
this
_______________ day of ______________ A.D. ____
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For Value
Received, ____________________ hereby sell, assign and transfer unto
_____________________________________________________________
____________________________________________________________ Membership
Interests represented by the within Certificate, and do hereby irrevocably
constitute and appoint _______________________________________________________________Attorney
to transfer the said Membership Interests on the books of the within named
Company with full power of substitution in the premises.
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Dated
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________
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In
presence of
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NOTICE: THE
SIGNATURE OF THIS ASSIGNMENT
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MUST CORRESPOND WITH
THE NAME AS WRITTEN
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UPON
THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR
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WITHOUT ALTERATION OR ENLARGEMENT, OR
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ANY
CHANGE WHATEVER.
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EXHIBIT
4.2
January
14, 2002
ORGANIZED
UNDER THE LAWS OF THE STATE OF CALIFORNIA NUMBER INTEREST(S)
ECONOMIC
INTEREST ONLY
Performance
Capital Management, LLC
The
Operating Agreement of the company contains restrictions on
transfer.
Performance
Capital Management, LLC
This
Certifies that _______________________________________________is the Registered
holder of _________________ Membership Interest(s) of the above named Company,
transferable only on the books of the Company by the holder hereof in person or
by Attorney upon surrender of this Certificate properly endorsed and in
accordance with the terms and conditions of the Articles of Organization and the
Operating Agreement of the Company, as amended to the date of transfer, copies
of which may be inspected and copied during normal business hours at the
principal office of the Company.
In Witness Whereof, the said Company
has caused this Certificate to be signed by its duly authorized Manager(s) or
Officer(s) and its Seal to be
hereunto
affixed
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For Value
Received, ____________________ hereby sell, assign and transfer unto
________________________________________________________________
____________________________________________________________Membership Interests
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
_______________________________________________________________Attorney
to transfer the said Membership Interests on the books of the within named
Company with full power of substitution in the premises.
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Dated
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________
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In
presence of
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NOTICE: THE
SIGNATURE OF THIS ASSIGNMENT
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MUST CORRESPOND WITH
THE NAME AS WRITTEN
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UPON
THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR
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WITHOUT ALTERATION OR ENLARGEMENT, OR
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ANY
CHANGE WHATEVER.
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