LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF MASSACHUSETTS RESIDENTIAL NOMINEE SERVICES, LLC A MANAGER MANAGED MASSACHUSETTS LIMITED LIABILITY COMPANY Dated as of February 15, 2007 E.I.N. 33-1007581
Exhibit 3.80
EXHIBIT A
AMENDED AND RESTATED
OF
MASSACHUSETTS RESIDENTIAL NOMINEE SERVICES, LLC
A MANAGER MANAGED
MASSACHUSETTS LIMITED LIABILITY COMPANY
Dated as of February 15, 2007
E.I.N. 00-0000000
This Amended and Restated Operating Agreement is dated as of February 15, 2007, by
and between National Residential Nominee Services Inc., a Delaware corporation, with a
principal place of business located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (the
“Manager”), as the sole Manager; and Investment Property Exchange Services, Inc., a
California corporation, with a principal place of business located at 00 Xxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 (“IPEX”), as the member (the “Member”).
The parties hereto, being duly sworn, certify and agree as follows:
ARTICLE I
Formation and Name
This limited liability company (the “Company”) was formed pursuant to the provisions
of the Act. The business and affairs of the Company shall be conducted under the name
“Massachusetts Residential Nominee Services, LLC” or such other name or names as may be
designated by the Manager.
ARTICLE II
Principal Place of Business, Agent for Service of Process
Principal Place of Business, Agent for Service of Process
The principal place of business of the Company shall be 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000. The principal place of business and other places of business may
be designated by the Manager. The records required to be maintained pursuant to the Act
shall be initially maintained at the principal office of the Company, and the initial
resident agent of the Company in the State of Massachusetts for service of process shall
be CT Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000.
ARTICLE III
Purposes
Purposes
Section 3.1
The purposes of the Company are to take, hold and transfer title to residential real
estate, and to engage in such lawful business or activities which may be necessary or
incidental to the foregoing; and in general to carry on any business activity permitted
and to exercise all the powers and rights granted a limited liability company organized
under the Act.
Section 3.2 Powers
In furtherance of the above purposes, the Company shall have the following powers:
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A. to acquire property, real or personal, in fee or under lease, or any
rights therein or appurtenant thereto, necessary or convenient for the business and
operations of the Company;
B. to enter into, perform and carry out contracts of any kind, including
contracts with Affiliates, necessary to, in connection with, or incidental to, the
accomplishment of the purposes of the Company;
C. to borrow money and to issue evidence of indebtedness and to secure
the same by mortgage, pledge or other lien on any assets of the Company, in
furtherance of any and all of the purposes of the Company;
D. to repay in whole or in part, refinance, recast, increase, modify or
extend any mortgages affecting the Company’s property, and in connection
therewith to execute any extensions, renewals, modifications of any such mortgages;
E. to guaranty obligations of Affiliates upon terms and conditions
determined by the Manager;
F. to invest and reinvest the assets of the Company in, and to purchase or
otherwise acquire, hold, sell, transfer, exchange or otherwise dispose of securities
of
all types and descriptions and any other interests in business ventures; and
G. to carry on any other activities necessary to, or in connection with, or
incidental to, the accomplishment of the purposes of the Company, so long as such
activities may be lawfully carried on or performed by a limited liability company
under the Act and other applicable laws of the State.
Except as expressly provided herein, no Member shall have any authority to act
for, or assume any obligations or responsibility on behalf of, any other Member or
the Company.
ARTICLE IV
Term
Term
The Company shall commence on the date of the filing of the Articles of Organization
with the Office of the Secretary of State of the State of Massachusetts and shall
continue thereafter until terminated by operation of law or in accordance with the
provisions of this Agreement.
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ARTICLE V
Capital Contributions
Capital Contributions
Section 5.1 Original Capital Contributions
Prior to or contemporaneously with the execution of this Agreement, the Members have
contributed to the capital of the Company the aggregate amount of cash and other property
set forth in Exhibit A attached hereto and made a part hereof.
Section 5.2 Additional Contributions
Capital Contributions in addition to those referred to in Section 5.1 above may be
made from time to time when, as and if it is determined by the Members that additional
Capital Contributions are necessary or desirable to accomplish the purposes of the
Company.
Section 5.3 Interest on Capital Contributions
No interest shall be paid upon Capital Contributions.
Section 5.4 Withdrawal of Capital
No Member shall have the right to withdraw any capital contributed to the Company
except as specifically provided herein.
Section 5.5 Liability of Members
Notwithstanding anything to the contrary elsewhere contained herein, and except as
otherwise specifically provided herein or in the Act, no Member shall be liable for
Company obligations in an amount in excess of its aggregate Capital Contributions to the
Company, including any additional Capital Contributions if and to the extent the same
become due and payable under Section 5.2.
Section 5.6 Property Other Than Cash
No Member shall have the right to demand or receive property other than cash in
return for its Capital Contribution, and except as its interest may appear in the
accounts of the Company, no Member shall have priority over any other Member, either as
to contributions of capital or as to compensation by way of income.
Section 5.7 Capital Accounts
An individual Capital Account shall be established and maintained for each Member,
including any additional or substituted Member who shall hereafter receive an interest in
the Company. The original Capital Account established for
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each such substituted Member shall be in the same amount as, and shall replace, the
Capital Account of the Member which such substituted Member succeeds, and, for the
purposes of this Agreement, such substituted Member shall be deemed to have made the
Capital Contribution, to the extent actually paid in, of the Member which such
substituted Member succeeds. The Capital Account of each Member shall be (i) credited
with (a) the amount of cash such Member has contributed to the Company plus (b) the fair
market value of any property such Member has contributed to the Company net of any
liabilities assumed by the Company or to which such property is subject plus (c) the
amount of profits or gain of the Company allocated to such Member, and (ii) charged with
(a) the amount of losses and deductions of the Company allocated to such Member, (b) the
amount of all cash distributed by the Company to such Member, (c) the fair market value
of any property distributed by the Company to such Member net of any liabilities assumed
by the Company or to which such property is subject and (d) such Member’s share of any
other expenditures of the Company which are not deductible by the Company for Federal
income tax purposes or which are not allowable as additions to the basis of the Company
property and shall be (iii) subject to other adjustments as may be required under the
Code. The term “substituted Member,” as used in this paragraph, shall mean a Person who
shall become entitled to receive a share of the profits, losses and distributions of the
Company by reason of such Person succeeding to the interest in the Company of a Member by
assignment of all or any part of a Member’s interest in the Company. To the extent a
substituted Member receives less than 100% of the interest in the Company of a Member it
succeeds, the original Capital Account of such substituted Member and its Capital
Contribution shall be in proportion to the interest it receives and the Capital Account
of the Member who retains a partial interest in the Company and its Capital Contribution
shall continue, and not be replaced, in proportion to the interest it retains. Any
special basis adjustments resulting from an election by the Company pursuant to Section
754 of the Code shall not be taken into account for any purpose in establishing and
maintaining Capital Accounts for the Members pursuant to this Section 4.3. Nothing in
this section shall affect the limitation on the transferability of Company interests set
forth in Article VII, Article VIII or Section 13.1 of this Agreement.
ARTICLE VI
Additional Members
Additional Members
The Manager is authorized to admit additional Members to the Company, at such times,
and upon such terms and conditions, as it may determine.
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ARTICLE VII
Loans
Loans
Section 7.1 Company Borrowings
If, at any time or from time to time, the Manager determines that additional funds
are required to carry on the business of the Company in the manner contemplated hereunder, the Company may, in lieu of or in addition to obtaining funds from any other
source, borrow such funds upon terms and conditions it may determine.
Section 7.2 Operating Loans
In lieu of or in addition to making additional Capital Contributions pursuant to
Section 5.2 hereof, or borrowing funds pursuant to Section 7.1 hereof, each Member may
advance or cause to be advanced to the Company funds. Such advances (herein called
“Operating Loans”) shall be deemed to be loans rather than Capital Contributions and shall
bear interest at a rate determined by the Manager. Operating Loans shall be evidenced by
promissory notes of the Company (“Operating Notes”) and shall be repaid in the manner and
at the times specified in Sections 11.2 and 12.1. If the Members so determine, and subject
to the approval, if required, of any lenders or governmental authorities having
jurisdiction over any Property, such notes may be secured by a lien on all real or
personal property owned by the Company or on the beneficial interest therein (or so much
thereof as is then owned by the Company), evidenced by a security instrument (which may
be, among other types, a mortgage or collateral assignment of beneficial interest) in
appropriate form with respect to the law of the jurisdiction in which such property is
located, subject to liens, if any, of mortgages granted by the Company or to which such
property was subject when acquired by the Company, and to any other lien theretofore
granted by the Company. Such security instrument shall also contain provisions requiring
its subordination by its holder, to the extent of the cost of improvements reasonably
necessary to accomplish the purposes set forth in Article III hereof, to any lien
thereafter granted by the Company or its successors in title to a recognized bank, savings
and loan association or other lending institution.
Section 7.3 Benefit
The undertakings of the Members in Section 5.2 and this Article VII are made for the
benefit of the Members and the Company and shall not inure to the benefit of any creditor
of the Company other than a Member.
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ARTICLE VIII
Rights, Duties and Powers
Rights, Duties and Powers
Section 8.1 Rights and Responsibilities of Manager
The Manager shall be solely responsible for the management of the Company business
with all rights and powers generally conferred by law or necessary, advisable or
consistent in connection therewith. All decisions with respect to the management and
control of the Company which are made by the Manager as aforesaid shall be binding on the
Company and all Members.
Section 8.2 Duties and Powers of Manager
The Manager has full and sole authority to cause the Company to exercise the powers
conferred on the Company in Article III. The Manager shall use reasonable efforts to carry
out the purposes, business and objectives of the Company referred to in Article III, and
shall devote to the Company business such time and effort as shall be reasonably required
for the proper conduct of the business of the Company. Anything in this Agreement to the
contrary notwithstanding, all Persons dealing with the Company may rely upon the authority
of the Manager to execute, for and in behalf of the Company, any contract or other
document pertaining to the business of the Company and every contract deed, mortgage,
lease and other instrument executed by the Manager shall be conclusive evidence in favor
of every Person relying thereon or claiming thereunder that at the time of the delivery
thereof the execution and delivery of such instruments were duly authorized by the Manager
in accordance with Section 8.1 of this Agreement. No Member (except a Member who is also a
Manager and then only in its capacity as a Manager) shall be entitled to bind the Company.
The Manager is authorized and empowered to designate and appoint any officers, agents
and/or attorneys-in-fact to act for any one or more purposes for and in behalf of the
Company, and any Person dealing with the Company may rely upon the efficacy of any such
designation, appointment or power of attorney authorizing any such officer, agent or
attorney-in-fact to act for and in behalf of the Company to the same extent as if the
action so authorized had been taken by the Manager of the Company for and in behalf of the
Company. Every contract, deed, mortgage, lease and other instrument executed by the
Manager or by any such officer, agent and/or attorney-in-fact so designated by the Manager
shall be conclusive evidence in favor of every Person relying thereon or claiming
thereunder that at the time of delivery thereof (i) the Company was in existence, (ii) the
Manager or such officer, agent or attorney-in-fact was duly authorized to execute such
instrument and (iii) this Agreement had not been terminated, canceled or amended in any
manner so as to restrict such authority.
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Section 8.3 Prohibited Acts and Limitations
Nothing contained in this Article VIII shall be construed as giving the Manager the
power or right to possess Company property for other than a Company purpose nor to do any
act prohibited by the terms of any statutes, ordinances, regulations or agreements
applicable to the Company. All powers and rights of the Manager shall always be subject to
the foregoing so long as the same continue in force and to be applicable to this Company
as aforesaid.
Section 8.4 Compensation of Manager
The Manager shall be entitled to such salary and other compensation for its services
to the Company as may be Approved by the Members from time to time. Such salaries or other
compensation, if any, shall be deducted as an expense of the Company in determining the
Cash Flow of the Company to be distributed pursuant to Section 11.2 hereof.
Section 8.5 Indemnity of Manager
The Manager shall be entitled to indemnity from the Company for any liability arising
out of any act performed by it within the scope conferred upon it by this Agreement,
provided that the Manager acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and its Members. Any indemnity
under this Section 8.5 shall be provided out of and to the extent of Company assets only,
and no Member shall have any personal liability on account thereof.
Section 8.6 Activities of Members
The Members (except a Member who is also a Manager and then only in its capacity as a
Manager) shall take no part in, nor interfere in any manner with, the conduct or control
of the Company business, and shall have no right or authority to act for or bind the
Company.
ARTICLE IX
Independent Ventures — Self-Dealing Provisions
Independent Ventures — Self-Dealing Provisions
Section 9.1 Competition
Any of the Members, including any Manager, may engage in or possess an interest in
other business ventures of any and every nature and description. Neither the Company nor
the other Members shall have any right by virtue of this Agreement in and to such
independent ventures or to the income, gain or profits derived therefrom.
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Section 9.2 Self-Dealing
The fact that a Member, including any Manager, or its stockholders, officers, or
directors as the case may be, is employed by, or is directly or indirectly interested in
or connected with, any person, firm, or corporation employed by the Company to render or
perform a service, or to whom or which the Company shall convey any property or lease any
space, or from whom or which the Company shall acquire any property or lease any space,
shall not prohibit the Manager from contracting with or otherwise dealing with him or it.
Neither the Company nor any of the other Members, as such, shall have any rights by virtue
of this Agreement in or to any income or profits derived therefrom.
ARTICLE X
Profits and Losses
Profits and Losses
Section 10.1 Basic Ratio
Except as provided in Section 10.3, the Profits and Losses of the Company shall be
allocated among the Members in proportion to their Percentage Interests, as set forth in
Exhibit A attached hereto and made a part hereof.
The term “Profits and Losses” as used in this Agreement shall mean income and losses,
and each item of income, gain, loss, deduction or credit entering into the computation
thereof, as determined in accordance with the accounting methods followed by the Company
and computed in a manner consistent with Treasury Regulation Section 1.704-1(b)(2)(iv).
Profits and losses for Federal income tax purposes shall be allocated in the same manner
as Profits and Losses for purposes of this Article X, except as provided in Section
10.3(B).
Section 10.2 Individual Items
Except as otherwise specifically provided herein, whenever a proportionate part of
the Company’s Profits or Losses is credited or charged to a Member’s capital account, each
item of income, gain, loss, deduction or credit entering into the computation of such
Profits or Losses, or applicable to the period during which such Profits or Losses were
realized, shall be considered credited or charged, as the case may be, to such account in
the same proportion.
Section 10.3 Special Tax Provisions
A. Section 704 of the Code and the Regulations issued thereunder, including
but not limited to the provisions of such regulations addressing qualified income offset
provisions, minimum gain chargeback requirements, partner nonrecourse debt minimum gain
chargeback provisions and allocations of deductions attributable to nonrecourse debt and
partner nonrecourse debt, are hereby incorporated by reference into this Agreement.
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B. Income, gain, loss and deduction with respect to Company property which
has a variation between its basis computed in accordance with Treasury Regulation
Section 1.704-(b) and its basis computed for Federal income tax purposes shall be
shared among Members so as to take account of the variation in a manner consistent
with the principles of Section 704(c) of the Code and Treasury Regulation Section
1.704-3.
ARTICLE XI
Cash Flow of the Company
Cash Flow of the Company
Section 11.1 Cash Flow
The term “Cash Flow” of the Company for a particular fiscal year shall include
all Profits from the operation of the Company for such fiscal year except Profits for
such fiscal year arising from the sale or other disposition of all or a substantial
part of the assets of the Company, and shall be determined by adjusting such Profits
as follows:
(a) Items described in Section 705(a)(1)(B) of the Code shall be
included in Cash Flow. Items described in Section 705(a)(2)(B) of the Code
shall be considered a deduction in calculating Cash Flow;
(b) Depreciation of buildings, improvements and personal property
shall not be considered as a deduction;
(c) Amortization of financing fees, organizational expenses or similar
items (for federal income tax purposes) shall not be considered as a
deduction;
(d) Principal payments on all mortgage loans, conditional sales
contracts and other secured obligations (other than Operating Loans) shall
be considered a deduction;
(e) If the Manager so determines, a reasonable reserve shall be
deducted to provide for replacements, improvements, capital improvements
or any other contingency of the Company;
(f) Any amounts paid by the Company for capital expenditures or
replacements (and not withdrawn from a reserve fund established for such
purpose) shall be considered as a deduction;
(g) Amounts required to maintain reasonable working capital shall be
considered a deduction;
(h) Capital Contributions to the Company, the proceeds of any mortgage
refinancing, the proceeds of any sale, exchange, eminent domain
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taking, damage or destruction by fire or other casualty, whether insured or
uninsured, or other disposition of all or a substantial part of the assets of the
Company (or of the assets of any partnership, joint venture or other comparable
entity of which the Company is a member or of the interest of the Company in any
such entity) shall not be included in Cash Flow of the Company and payments made
from such sources of funds shall be excluded in determining Cash Flow of the
Company; and
(i) Any other receipts from the operations of the Company not properly
includable in Profits and Losses of the Company and any amounts released from
reserve accounts and available for distribution shall be included in Cash Flow of
the Company.
Section 11.2 Cash Flow Distributions
The Cash Flow of the Company shall be determined for each fiscal year. The Manager
shall make periodic (and in no event less frequent than annual) distributions to the
Members of the Cash Flow of the Company in the manner and amounts hereinafter provided:
First, to repay principal and interest on outstanding Operating
Loans; and
Second, to the Members in accordance with their respective Percentage
Interests in the Company.
Section 11.3 Allocations and Distributions
(a) In the event that there are at any time more than one class of
Members, Profits and Losses of the Company allocated to and distributions
made to the Members in each class shall be allocated to each of them in the
ratio which the Percentage Interest of such Member bears to the aggregate
Percentage Interests of all of the Members in such class.
(b) All Profits, Losses and distributions to the Members shall be
credited or charged, as the case may be, to their Capital Accounts as of the
date at which Profits and Losses are determined.
(c) Except as may be otherwise expressly provided to the contrary in
this Agreement, the Members’ Capital Accounts shall be maintained, both for
book purposes and for federal income tax purposes in the manner provided in
Treasury Regulations 1.704-I (b) (the “Regulations”) and profits and losses
and items thereof for book purposes, and all items of income, deduction, gain,
loss or credit for Federal income tax purposes shall be allocated among the
Members in a manner consistent with the Regulations, so that the allocations
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provided in this Agreement may, to the extent possible, have “substantial
economic effect” within the meaning of the Regulations.
ARTICLE XII
Section 12.1 Other Distributions and Payments
All cash available from the cash proceeds resulting from the refinancing of any
mortgage on, or the sale, exchange, condemnation (or similar eminent domain taking),
casualty or other disposition of all or a substantial part of the assets of the Company,
or from the liquidation of the assets of the Company following a dissolution of the
Company, and, subject to the provisions of Article XIII, all cash other than cash
distributed pursuant to Section 11.2 hereof which is determined by the Manager to be
available for distribution, shall be distributed and applied in the following priority:
First, to the payment of all debts and liabilities of the Company
then due (or required by any lender or creditor to be repaid on account of the
event referred to in this Article XII which makes such cash available) other than
loans by a Member to the Company;
Second, to fund reserves for contingent liabilities to the extent deemed
reasonable by the Manager, provided, that at the expiration of such period
of time as the Manager shall deem advisable, the balance of such reserves remaining
after payment of such contingencies shall be distributed in the manner hereinafter
set forth in this Article XII;
Third, to the payment of principal and interest on
outstanding Operating Loans;
Fourth, the balance of any remaining cash proceeds shall be
distributed to the Members in accordance with their respective Percentage
Interests in the Company.
ARTICLE XIII
Accounting
Accounting
Section 13.1 Books and Reporting
(a) The Manager shall keep or cause to be kept a complete and accurate set of
books and supporting documentation of transactions with respect to the conduct of
the Company’s business. The books of the Company shall be kept on such basis as may
be determined by the Manager and shall at all times be maintained at the principal
office of the Company or at such
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other location as the Manager may determine. Each of the Members and their duly
authorized representatives shall have the right to examine the books of the Company
and all other records and information concerning the operation of the Property at
reasonable times.
(b) The Manager shall determine and prepare or cause to be prepared a balance
sheet, statement of profit and loss, statement of receipts and disbursements
including its best estimate of Cash Flow available for distribution to the Members,
statement of surplus (or deficit) cash, statement of loans payable and any other
statements it deems necessary to comply with the requirements of this Agreement.
Said balance sheet and statement of profit and loss shall be prepared in accordance
with generally accepted accounting principles applied consistently with prior
periods. As a note to the statement of loans payable, there shall be included a
schedule of all loans to the Company from Affiliates or any other party, setting
forth the section of this Agreement under which such debt was incurred, and the
purpose for which such loan was applied by the Company. Such schedule shall
demonstrate that loans have been made, used, carried on the books of the Company
(and repaid, if applicable) in accordance with the provisions of this Agreement.
The Manager shall promptly upon preparation or receipt of such balance sheet and
statements and in any event within 105 days after the end of each fiscal year,
transmit to all Members a copy thereof. The Manager shall cause the Auditors to
prepare the federal and state income tax returns of the Company and the Manager
shall use reasonable efforts to cause such Auditors to prepare such tax returns
within 105 days after the end of such fiscal year. The Manager shall cause such tax
returns to be filed on a timely basis and shall promptly after the filing thereof
transmit to all the Members a copy of such tax returns.
Such reports and estimates shall clearly indicate the methods under which they were
prepared, and shall be made at the expense of the Company.
Section 13.2 Bank Accounts
The bank accounts of the Company shall be maintained in such banking institutions as
the Manager shall determine, and withdrawals shall be made only in the regular course of
Company business on such signature or signatures as the Manager shall determine.
Section 13.3 Special Basis Adjustments
In the event of a transfer of all or any part of the interest of any Member
(including a transfer by reason of death), the Company shall elect pursuant to Sections
734, 743 and 754 of the Code (or corresponding provisions of succeeding law) and pursuant
to similar provisions of applicable state or local income tax laws,
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to adjust the basis of the assets of the Company. Notwithstanding anything to the
contrary contained in this Agreement, any such adjustments shall affect only the
successor in interest to the transferring Member. Each Member will furnish the Company
with all information necessary to give effect to such election.
Section 13.4 Fiscal Year
The fiscal year of the Company shall be the calendar year.
ARTICLE XIV
Withdrawal of Manager; New Managers
Withdrawal of Manager; New Managers
Section 14.1 Voluntary Withdrawal
Except as provided in the Act, no Manager shall have the right to withdraw or
retire voluntarily from the Company or sell, assign or encumber its partnership
interest without the consent of all Members.
Section 14.2 Election to Continue
In the event of the Retirement of any Manager, the remaining Managers, if any, and
any successor Manager, and those Members representing not less than 51% in interest of
all Members, may elect to continue the business of the Company employing its assets and
name, all as contemplated by the Act. Within ten (10) days after the occurrence of such
Retirement, the remaining Managers, if any, shall notify the Members thereof.
Section 14.3 Successor Manager
(a) Upon the occurrence of any Retirement referred to in Section 14.2,
the remaining Managers, if any, may designate a Person to become a
successor Manager to the Manager as to whom such event shall have
occurred. Any Person so designated, subject to the Approval of the Members,
shall become a successor Manager upon its written agreement to be bound by
the provisions of this Agreement.
(b) If any Retirement referred to in Section 14.2 shall occur at a time
when there is no remaining Manager and no successor becomes a successor
Manager pursuant to the preceding provisions of this Section 14.3, then 51 %
or more in interest of the Members shall have the right, to designate a Person
to become a successor Manager upon its written agreement to be bound by
the provisions of the Agreement.
(c) If the Members elect to reconstitute the Company pursuant to this
Section 14.3 and admit a successor Manager pursuant to this Section 14.3,
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the relationship of the parties in the reconstituted Company shall be
governed by this Agreement.
Section 14.4 Interest of Predecessor Manager
No assignee or transferee of all or any part of the interest as a Manager of a
Manager shall have the right to become a Manager and any such assignee or transferee
shall have only such rights as are afforded to such Person as a matter of law; without
limiting the generality of the foregoing no such assignee or transferee shall have any
rights to vote or consent with respect to any transactions involving the Company;
provided, however, that in the event of the withdrawal of a Manager under circumstances
not constituting any violation of the terms or provisions of this Agreement, such Manager
or its legal representatives, estate or distributees shall have the right to become a
Member, with all the rights of a Member hereunder, in which case this Agreement shall be
amended accordingly.
Section 14.5 Designation of New Manners
The Manager may, with the consent of all Members, at any time designate new
Managers with such interest as a Manager in the Company as the Managers may
specify.
Any new Manager shall as a condition of receiving any interest in the Company agree
to be bound by the provisions of this Agreement to the same extent and on the same terms
as any other Manager.
Section 14.6 Approval of Certain Events
Each Member hereby consents to and authorizes any admission or substitution of a
Manager or any other transaction, including, without limitation, the continuation of the
Company business, which has been authorized by the requisite percentage of Members under
the provisions of this Agreement and hereby ratifies and confirms each amendment of this
Agreement necessary or appropriate to give effect to any such transaction.
ARTICLE XV
Transfer of Member Interests
Transfer of Member Interests
Section 15.1 Right to Assign
Except by operation of law, or by bequest, no Member shall have the right to assign
its Member Interest in the Company, or in the capital, assets or property of the Company,
or enter into any agreement as a result of which any Person shall become interested with
it in the Company, without the written consent of the Manager, which may be given or
withheld in the sole discretion of the Manager.
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Section 15.2 Restrictions
(a) No sale or exchange of the interest of any Person as Member in the
Company shall be made if such sale or exchange would violate Section 17.1.
(b) In no event shall all or any part of a Member’s Interest in the
Company be assigned or transferred to a minor or to an incompetent (other
than to a member of a Member’s Immediate Family by reason of death).
(c) The Manager may require as a condition of any assignment of any
interest in the Company, that the assignor (i) assume all costs incurred by
the Company in connection therewith, and (ii) furnish it with an opinion of
counsel satisfactory to counsel to the Company that such sale, transfer,
exchange or other disposition complies with applicable Federal and state
securities laws.
(d) Any assignment in contravention of any of the provisions of Section
15.1 or this Section 15.2 shall be void and ineffectual and shall not bind, or
be
recognized by, the Company.
Section 15.3 Substitute Members
Any Substitute Member shall, as a condition of receiving any interest in the
Company assets, agree to be bound (to the same extent as his assignor was bound) by
the provisions of this Agreement.
Section 15.4 Assignees
An assignee of a Member who does not become a Substitute Member in accordance with
Section 15.3 shall, if such assignment is in compliance with the terms of this Agreement,
have the right to receive the same share of profits, losses and distributions of the
Company to which the assigning Member would have been entitled if no such assignment had
been made by such Member.
Any Member who shall assign all its interest in the Company shall cease to be a
Member of the Company, and shall no longer have any rights or privileges or obligations of
a Member except that, unless and until the assignee of such Member is admitted to the
Company as a Substitute Member in accordance with Section 15.3, said assigning Member
shall retain the statutory rights and be subject to the statutory obligations of an
assignor limited partner under the Act as well as the obligation to make the Capital
Contributions attributable to the interest in question, if any portion thereof remains
unpaid.
In the event of any assignment of a Member’s interest as a Member, there shall be
filed with the Company a duly executed and acknowledged counterpart of the instrument
making such assignment; such instrument must evidence the
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written acceptance of the assignee to all the terms and provisions of this
Agreement; and if such an instrument is not so filed, the Company need not
recognize any such assignment for any purpose.
An assignee of a Member’s interest as a Member who does not become a Substitute
Member as provided in Section 15.3 and who desires to make a further assignment of its
interest shall be subject to the provisions of this Article XV to the same extent and in
the same manner as any Member desiring to make an assignment of its interest.
ARTICLE XVI
Termination and liquidation
Termination and liquidation
Section 16.1 Events Causing Termination
The Company shall be terminated and its affairs wound up on the first to occur of
the following:
(a) the Retirement of a Manager unless the business of the Company is
continued as provided in Article XIV; or
(b) the election to dissolve the Company made in writing by all the
Members; or
(c) the sale or other disposition of all or a substantial part of the assets
of the Company; or
(d) any other act or event causing a dissolution under the Act.
Section 16.2 Distributions Upon Termination
Unless the business of the Company is continued, upon the termination and
dissolution of the Company, the Managers, or if there are none, such other Person
required by law to wind up the Company’s affairs, shall proceed with the liquidation of
the Company (including cancellation of the Certificate), and the net proceeds of such
liquidation shall be applied and distributed in accordance with the Capital Account
balances of the Members.
Section 16.3 Distributions in Kind
If it becomes necessary to make a distribution of Company property in kind, due to
the economic impracticability of liquidating the assets of the Company, such property
shall be transferred and conveyed to the Members and their Assignees so as to vest in
each of them as a tenant-in-common an undivided interest in the whole of said property
equal to its interest had there been a distribution of net cash proceeds made in
accordance with Section 16.2.
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Section 16.4 Period for Orderly Liquidation
A reasonable time shall be allowed for the orderly liquidation of the assets of the
Company and the discharge of liabilities to creditors so as to enable the Managers to
minimize losses attendant upon a liquidation.
Section 16.5 Records of Liquidation
Each of the Members shall be furnished with a statement prepared by the Company’s
then accountants, which shall set forth the assets and liabilities of the Company as of
the date of complete liquidation. Upon the consummation of the transactions contemplated
in this Article XVI, the Manager shall execute, acknowledge and cause to be filed a
writing to cancel the Certificate of Organization of the Company.
Section 16.6 Liability of Manager
The Manager shall not be personally liable for any distributions to the Members,
or any portion thereof, including a return of invested capital, all such
distributions to be made solely from Company assets.
ARTICLE XVII
General
General
Section 17.1 Restrictions on Transfer
(a) Notwithstanding any other provision of this Agreement, except as
otherwise provided in this Section 17.1, no sale or exchange of any Member’s
interest in the Company may be made if the interest sought to be sold or
exchanged, when added to the total of all other interests in the Company sold
or exchanged within the period of twelve consecutive months prior to the
proposed date of sale or exchange, would result in the termination of the
Company under Section 708 of the Code.
(b) Any sale, exchange or other transfer in contravention of any of the
provisions of this Section 17.1 shall be void and ineffective, and shall not
bind
or be recognized by the Company.
Section 17.2 Notices
(a) All notices, demands or requests provided for or permitted to be given
pursuant to this Agreement must be in writing. All notices, demands and requests to
be sent to a Member or to any assignee of the interest of a Member hereunder
pursuant hereto shall be deemed to have been properly given or served by depositing
the same in the United States mail, addressed to such Member, prepaid, and
registered or certified with return receipt
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requested, at the address set forth in Exhibit A attached hereto and made a part
hereof.
(b) All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall
commence to run from the date of receipt on the return receipt of the notice,
demand or request by the addressee thereof.
(c) By giving to the other parties at least thirty (30) days’ written
notice thereof, the Members and their respective successors and assigns shall
have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right
to specify as its address any other address within the United States of
America.
(d) No transferee of any interest by any Member shall be entitled to
receive a notice independent of the notice sent to the Member making such
transfer. A notice sent or made to a Member shall be deemed to have been
sent and made to all transferees, if any, of such Member.
(e) All payments to be made pursuant hereto to any Member shall be
made at the address set forth herein for such Member. All such payments
shall be effective upon receipt.
Section 17.3 Obligations and Rights of Transferees
Any Person who acquires in any manner whatsoever any interest in the Company,
irrespective of whether such Person has accepted and adopted in writing the terms and
provisions of this Agreement, shall be deemed by the acceptance of the benefit of the
acquisition thereto to have agreed to be subject to and bound by the same obligations
under this Agreement that the predecessor in interest of such Person was subject to or
bound by. However, no assignee of an interest in the Company shall be entitled to be
admitted as a Member unless and until it has accepted and adopted in writing the terms
and provisions of this Agreement to the same extent and on the same terms as the present
Members.
Section 17.4 Governing Law
This Agreement and the rights and obligations of the Members hereunder shall
be governed by and construed in accordance with the Act, as amended, and other
applicable laws of the State.
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Section 17.5 Entire Agreement and Amendments
This Agreement contains the entire agreement between the parties hereto relative to
the formation and operations of the Company and, except as otherwise specifically
provided herein, may be modified or amended only by a written document consented to by
all Members.
Section 17.6 Separability of Provisions; Rights and Remedies; Arbitration
(a) Each provision of this Agreement shall be considered separable and
(i) if for any reason any provision or provisions herein are determined to be
invalid and contrary to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this Agreement which are
valid, or (ii) if for any reason any provision or provisions herein would
cause
the Members to be bound by the obligations of the Company under the laws
of the State as the same may now or hereafter exist, such provision or
provisions shall be deemed void and of no effect.
(b) Each of the parties hereto irrevocably waives during the term of the
Company any right that such party may have to maintain any action for
partition with respect to the property of the Company.
(c) The rights and remedies of any of the parties hereunder shall not
be mutually exclusive, and the exercise of one or more of the provisions
hereof
shall not preclude the exercise of any other provisions hereof. Each of the
parties confirms that damages at law may be an inadequate remedy for
breach or threat of breach of any provisions hereof. The respective rights and
obligations hereunder shall be enforceable by specific performance,
injunction, or other equitable remedy, but nothing herein contained is
intended to limit or affect any rights at law or by statute or otherwise of
any
party aggrieved as against the other parties for a breach or threat of breach
of any provisions hereof, it being the intention by this paragraph to make
clear that under this Agreement the respective rights and obligations of the
Members shall be enforceable in equity as well as at law or otherwise.
(d) In any instance in which any matter is to be determined by
Arbitration under the provisions of this Agreement, such matter shall be
submitted to arbitration in the manner provided under the Commercial
Arbitration Rules of the American Arbitration Association then in effect; such
arbitration shall be conducted before one arbitrator, chosen in accordance
with such rules in Boston, Massachusetts, and shall be binding on all parties
to the dispute; judgment on the award of such arbitrator may be rendered by
any court having jurisdiction of such parties and the subject matter. Insofar
as any action is required to be taken by the Members in respect of any such
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arbitration, such action may be taken by the vote or written consent of at least
51% in interest of the Members.
Section 17.7 Benefits and Obligations
Subject to the provisions of Articles XIV and XV hereof, this Agreement shall be
binding upon and inure to the benefit of the undersigned Members and their respect heirs,
executors, legal representatives, successors and assigns. Any Person succeeding to the
interest of a Member shall succeed to all of such Member’s rights, interests and
obligations hereunder subject to and with the benefit of all terms and conditions of this
Agreement.
Section 17.8 Word Meanings
The words such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this
Agreement as a whole and not merely to a subdivision in which such words appear unless
the context otherwise requires. The singular shall include the plural and the masculine
gender shall include the feminine and neuter, and vice versa unless the context otherwise
requires. Any references to “Sections” or “Articles” are to Sections or Articles of this
Agreement, unless reference is expressly made to a different document. References herein
to a specified percentage “in interest” of the Members shall mean Members whose
Percentage Interests in the Company equal such percentage of the aggregate Percentage
Interests of all Members in the Company.
Section 17.9 Counterparts
The Agreement may be executed in several counterparts and all so executed shall
constitute one agreement binding on all parties hereto, notwithstanding that all the
parties have not signed the original or the same counterpart, except that no
counterpart shall be binding unless signed by the Managers.
ARTICLE XVIII
Definitions
Definitions
Unless the context specifically requires otherwise, capitalized terms used in
this Agreement and not otherwise defined shall have the meanings specified below:
“Act” means the Massachusetts Limited Liability Company Act as adopted by the
State of Massachusetts as Chapter 156C of the Massachusetts General Laws, as amended
from time to time.
“Affiliate” (whether capitalized or not) means any (i) Member, (ii) member of the
Immediate Family of any Member, (iii) legal representative of any Person referred to in
the preceding clauses (i) or (ii), (iv) trustee of a trust for the benefit of any Person
referred to in the preceding clauses (i) or (ii), (v) Entity of which a
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majority of the voting interest is owned by any one or more of the Persons referred to in
the preceding clauses (i) through (iv), (vi) Person who owns common stock of any
corporate Member, or (vii) Person who is an officer, director, trustee, employee,
stockholder or partner of any Entity or Person referred to in the preceding clauses (v)
and (vi). The term “Affiliated with” shall mean related to in one or more of the
foregoing ways.
“Agreement” means this Operating Agreement, as the same may be amended from time
to time.
“Approved by the Members” means approved or consented to in writing by 70%
in interest of the Members and “Approval of the Members” means a writing evidencing such
approval or consent. When applied to such a particular class of Member, such terms shall
mean approved by 70% in interest of such class. In any instance under this Agreement in
which the consent or approval of a Member to any proposed action is required, such
consent or approval shall be deemed to have been given unless written objection to such
proposed action, stating with particularity grounds therefor, is sent by such objecting
Member to the other Members within thirty (30) days after receipt of a written request
for such consent or approval.
“Arbitration” shall have the meaning set forth in Section 17.6(d).
“Assignee”
means the recipient of an Assignment of a Company Interest.
“Assignor” means
the assignor of a Company Interest.
“Assignment” means, with respect to a Company Interest or part thereof, any
offer, sale, assignment, transfer, hypothecation, pledge, gift or any other
disposition, whether voluntary or by operation of law.
“Auditors” means a firm of independent certified public accountants selected by
the Manager to perform certain services on behalf of the Company.
“Capital Account” means the capital account established for each Member
under Section 5.7.
“Capital Contribution” means the amount of cash and the agreed value of
property contributed to the Company by a Member.
“Capital Transaction” means any transaction the proceeds of which are not
includable in determining Cash Flow, including, without implied limitation, the sale,
refinancing or other disposition of all or substantially all of the assets of the
Company, but excluding loans to the Company (other than a refinancing of the Mortgage
Loan) and contributions of capital to the Company by the Members.
“Cash Flow” shall have the meaning set forth in Article XI.
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“Certificate” means the Certificate of Organization, as filed with the Secretary of
the Commonwealth of Massachusetts as of the date first written above, as amended from
time to time hereafter in accordance with the terms hereof and the Act.
“Code” means the Internal Revenue Code of 1986, as amended, or
corresponding provisions of subsequent laws.
“Company” means the limited liability company formed in accordance with the
Certificate and this Agreement, as said limited liability company may from time to time
be constituted.
“Company Interest” or “Interest” means the interest of each of the Members
in and to the capital, Profits and Losses, Cash Flow and Sale-Refinancing Proceeds of the
Company.
“Designated Prime Rate” means the annual rate of interest which is at all
times equal to the lesser of (i) the Prime Rate plus 2%, calculations of interest to be
made on a daily basis and on the basis of a 360 day year and (ii) the maximum rate
permitted by law; the term “Prime Rate” in this sentence means the rate as periodically
published in The Wall Street Journal.
“Entity” means any general partnership, limited partnership, corporation, limited
liability company, limited liability partnership, joint venture, trust, business trust,
association or other business entity.
“Event of Bankruptcy” or “Bankruptcy” as the context may require, means as
to a specified Person:
(a) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person in an involuntary case
under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator
(or similar official) of such Person or for any substantial part of his or its
property, or ordering the winding-up or liquidation of his or its affairs and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the commencement by such Person of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or the consent by him or it to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of such Person or for any substantial part of his property, or the
making by him or it of any assignment for the benefit of creditors, or the
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failure of such Person generally to pay his or its debts as such debts become due,
or the taking off of action by such Person in furtherance of any of the foregoing.
“Immediate Family” means with respect to any person, his spouse, parents,
parents-in-law, descendants, nephews, nieces, brothers, sisters, brothers-in-law,
sisters-in-law, children-in-law anti grandchildren-in-law.
“Manager” or “Managers” means any or all of the Persons designated as Managers in
this Agreement or any Person who becomes a Manager as provided in this Agreement, in each
such person’s capacity as such, and if there is only one Manager at any time, such term
shall refer to the sole Manager alone.
“Member” or “Members” means any Person designated herein as a Member (including,
without limitation, any Manager in its capacity as a Member) or any Person admitted to
the Company as a Substitute Member in such Person’s capacity as a Member of the Company.
“Member Interest” means the interest in the Company held by each Member in
its capacity as a Member.
“Operating Loan” means a loan by a Member to the Company pursuant to Article
VII and shall be evidenced by an “Operating Note.”
“Percentage Interest” means the interest of a Member in the Profits and
Losses of the Company set forth in Exhibit A as the same may be adjusted from
time to time in accordance with the provisions of this Agreement.
“Person” means any individual or Entity and the heirs, executors, administrators,
successors and assigns of such Person where the context so admits.
“Profits and Losses” means the net profits and losses of the
Company as determined for purposes of Section 704(b) of Code.
“Property” means the real and personal property owned by the Company and by each
other partnership in which the Company is a partner.
“Residual Interest” means the Residual Interest of each Member set forth
opposite its name in Exhibit A hereto, subject to adjustment in accordance with
the provisions of this Agreement.
“Retirement” (including the verb form Retire and the adjective form Retired)
means as to a Manager, and shall be deemed to have occurred automatically upon, the
occurrence of death, adjudication of insanity or incompetence, resignation, expulsion,
Bankruptcy, dissolution or voluntary or involuntary withdrawal from the Company for any
reason. Involuntary withdrawal shall occur whenever a Manager
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may no longer continue as a Manager by law, and shall also be deemed to have occurred
when a Manager, by reason of illness or other mental or physical disability, shall have
been unable to perform his obligations hereunder for a period of twelve months. A
voluntary withdrawal of a Manager shall be deemed to have occurred thirty days after such
Manager shall be given written notice to all Members of his intention to so withdraw;
notwithstanding the foregoing, in no event shall any Manager have any right to withdraw
voluntarily as such except as expressly permitted by this Agreement; in addition, a
voluntary withdrawal shall also be deemed to have occurred upon the occurrence of any act
constituting the withdrawal of a Manager as a matter of law (other than an involuntary
withdrawal as described above).
“Sale-Refinancing Proceeds” means the net cash proceeds distributable under
Article XII hereof.
“State” means the State of Massachusetts.
“Successor Manager” means the Assignee of a Manager Interest who is
admitted to the Company as a Manager.
“Substitute Member” means the Assignee of a Member Interest who is
admitted to the Company as a Member.
IN WITNESS WHEREOF, the parties hereto have executed this Operating Agreement
of Massachusetts Residential Nominee Services, LLC under seal as of the day, month
and year first above written.
| MEMBER: INVESTMENT PROPERTY EXCHANGE SERVICES, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| President | ||||
| MANAGER: NATIONAL RESIDENTIAL NOMINEE SERVICES INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Xxxx X. Xxxxxxx | ||||
| Senior Vice President and Secretary | ||||
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EXHIBIT A
MEMBER
of
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| Percentage | ||||||||||
| Interest & | ||||||||||
| Capital | Residual | |||||||||
| Name | Address | Contribution | Interest | |||||||
Investment Property Exchange Services,Inc. |
00 Xxxxxxxxxx Xxxxxx | $ | 1,000.00 | 100 | % | |||||
| Xxxxx 0000 |
||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||
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