Exhibit 3(a)
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED OPERATING AGREEMENT OF
BELCREST CAPITAL FUND LLC
AMENDMENT No. 2 dated as of December 30, 2003, by Xxxxx Xxxxx Management, a
Massachusetts business trust, as manager (the "Manager") of Belcrest Capital
Fund LLC (the "Fund").
WHEREAS, pursuant to Section 12.1 of the Amended and Restated Operating
Agreement of the Fund, dated as of November 24, 1998, as amended (the
"Agreement"), the Manager has the authority to amend the Agreement; and
WHEREAS, the Manager desires to amend the Agreement as set forth herein.
NOW THEREFORE, the Manager hereby amends the Agreement as follows:
1. Article 1 of the Agreement is hereby amended by adding the following
definition:
"Net Realized Gains" has the meaning set forth in Section 8.1(b)
hereof.
2. Sections 8.1(a) and 8.1(b) of the Agreement are hereby amended by
deleting such Sections in their entirety and replacing them with the following:
(a) On the last business day of each Fiscal Year or shortly
thereafter, the Fund intends to distribute to the Shareholders an
amount approximately equal to the Net Current Income of the Fund for
the Fiscal Year, if any. The term "Net Current Income" shall mean the
net income and net realized short-term capital gains in excess of net
realized long-term capital losses accrued by or allocated to the Fund
for the Fiscal Year ended, determined in accordance with the treatment
of various income, gain, loss, expense and other items for federal
income tax purposes. Such distributions shall be made to the
Shareholders in proportion to the number of Shares held by each.
(b) On the last business day of each Fiscal Year or shortly
thereafter, the Fund intends to distribute to the Shareholders an
amount approximately equal to 18% (which percentage may be adjusted to
reflect changes in the effective maximum marginal individual federal
tax rate for long-term capital gains) of the Fund's Net Realized Gains
for the Fiscal Year, if any, that are not Precontribution Gains. The
term "Net Realized Gains" shall mean the excess of the Fund's net
realized long-term capital gains for federal income tax purposes for
that Fiscal Year over the Fund's net short-term capital losses for
federal income tax purposes for that Fiscal Year and the cumulative
amount of Fund capital losses from prior Fiscal Years not previously
applied against net realized capital gains for distribution purposes.
Distributions with respect to Net Realized Gains other than
Precontribution Gains shall be made to the Shareholders in proportion
to the number of Shares held by each.
3. This Amendment shall be effective upon execution by the Manager, and the
Agreement, as amended by this Amendment, is and shall continue to be in full
force and effect.
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IN WITNESS WHEREOF, the Manager has executed this Amendment as of the day
and year first above written.
MANAGER:
XXXXX XXXXX MANAGEMENT
By: /s/ Xxxxxxx X. Gemma
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Title: Vice President
