EXHIBIT 4.5
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THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
RADIAN INTERNATIONAL LLC
A DELAWARE LIMITED LIABILITY COMPANY
DATED AS OF SEPTEMBER 9, 2004
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THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Third Amended and Restated Limited Liability Agreement of Radian
International LLC (the "Company") is entered into as of September 9, 2004, by
and among those persons listed as Members (the "Members") from time to time on
Schedule I attached hereto.
SECTION 1. RESTATEMENT OF LIMITED LIABILITY COMPANY AGREEMENT.
The Members agree that the Second Amended and Restated Limited Liability
Company Agreement of the Company, dated as of April 15, 2002, is hereby replaced
in its entirety by this Agreement as September 9, 2004.
SECTION 2. NAME.
The business of the Company shall be conducted under the name "Radian
International LLC".
SECTION 3. DEFINITIONS.
For purposes of this Agreement, unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Act" means the Delaware Limited Liability Company Act, Delaware Code
Title 6, Sections 18-101 et seq., as amended from time to time.
(b) "Agreement" means this Third Amended and Restated Limited Liability
Company Agreement, as amended, modified or supplemented from time to time.
(c) "Alternates" has the meaning set forth in Section 14(c) of this
Agreement.
(d) "Business Purpose" has the meaning set forth in Section 4 of this
Agreement.
(e) "Capital Account" means, with respect to each Member, the account
established on the books and records of the Company for such Member. Each
Member's Capital Account shall initially equal the value of the capital account
maintained with respect to such Member, or such Member's predecessor, on the
books and records of the Company. During the term of the Company, each Member's
Capital Account shall be (i) increased by the amount of (w) income and gain
allocated to the Member and (x) any cash or property subsequently contributed by
the Member to the Company, and (ii) decreased by the amount of (y) loss and
deduction allocated to the Member and (z) all cash and property distributed to
the Member, and shall otherwise be kept in accordance with applicable United
States Treasury Regulations promulgated under Section 704(b) of the Code.
(f) "Capital Contribution" means the total amount of cash or other
property contributed to the Company, or services rendered to the Company, by a
Member without charge.
Contributed property shall be valued at fair market value, net of any
liabilities assumed to which the contributed property is subject.
(g) "Code" means the United States Internal Revenue Code of 1986, as
amended, modified or rescinded from time to time, or any similar provision of
succeeding law.
(h) "Company" has the meaning set forth in the recitals of this Agreement.
(i) "CRI" has the meaning set forth in the introductory paragraph of this
Agreement.
(j) "CRI Alternate" has the meaning set forth in Section 14(c) of this
Agreement.
(k) "CRI Representative" means any Person selected by CRI to represent it
on the Members Committee.
(l) "DEI" has the meaning set forth in the introductory paragraph of this
Agreement.
(m) "IRS" means the United States Internal Revenue Service or any
successor entity.
(n) "Majority Interest" means more than 50% of all Membership Interests.
(o) "Member" has the meaning set forth in the introductory paragraph of
this Agreement.
(p) "Membership Interest" means the percentage interest in the Company of
a Member as set forth opposite such Member's name on Schedule I attached to this
Agreement as amended, modified or supplemented from time to time.
(q) "Members Committee" means the committee of Representatives described
in Section 14 of this Agreement.
(r) "Net Cash Flow" means for any period the amount, computed on a cash
basis, equal to:
(i) the sum of (A) gross receipts from business operations, all
investment income and investment gain of the Company and all other cash received
by the Company, all without double counting and (B) any amounts released from
Reserves;
decreased by
(ii) the sum of (A) disbursements of the Company for operating
expenses, expenditures for capital investments and reinvestments, principal
payments on indebtedness, interest and other expenses, including any repayment
of indebtedness required or elected to be made in connection with any
refinancing, sale or other event, and (B) any increase in Reserves.
(s) "1933 Act" has the meaning set forth in Section 23 of this Agreement.
(t) "Person" means any individual, corporation, partnership, association,
limited liability company, trust, estate or other enterprise or entity.
2.
(u) "Representative" means each of the Representatives of the Company
designated from time to time by the Members in accordance with Section 14(c) of
this Agreement. As used in this Agreement and for purposes of the Act, the term
Representative shall have the same meaning and have such rights, powers and
authorities of a "manager" as provided in the Act and as otherwise provided by
law.
(v) "Reserves" means the reasonable reserves established and maintained
from time to time in amounts reasonably determined by the Members Committee to
be adequate and sufficient for current and future operating and working capital
and to pay for taxes, insurance, service of indebtedness, amortization of
indebtedness, repairs, replacements or renewals, management fees or other costs
and expenses incident to the Company's business or otherwise to provide for the
long-term goals of the Company or any other purpose, including reserves for
unforeseen or contingent liabilities, debts or obligations.
(w) "Secretary" means the Secretary of State for the State of Delaware.
(x) "Tax Matters Member" has the meaning set forth in Section 22(d) of
this Agreement.
(y) "TCM" has the meaning set forth in the introductory paragraph of this
Agreement.
(z) "Treasury Regulations" means the income tax regulations, including any
temporary regulations, from time to time promulgated under the Code.
SECTION 4. BUSINESS PURPOSE OF THE COMPANY.
The business purpose of the Company (the "Business Purpose") is to carry
on any lawful business, purpose or activity, whether or not for profit, with the
exception of the business of granting policies of insurance, or assuming
insurance risks or banking as defined in Section 126 of Title 8 of the Code of
Delaware.
SECTION 5. TERM.
The term of the Company shall continue until the earlier of (a) June 30,
2076, or (b) the date as of which the Company is dissolved in accordance with
this Agreement or by law.
SECTION 6. PRINCIPAL PLACE OF BUSINESS.
The principal place of business of the Company shall be located in or near
San Francisco, California or at such other place or places as the Members
Committee may from time to time determine. The business of the Company may also
be conducted at such additional place or places as the Members Committee may
designate; provided, however, that the Company shall not maintain an office or a
principal place of business in any jurisdiction that would jeopardize the
limitation on liability afforded to the Members under the Act or this Agreement
and; provided, further, that the Members Committee shall take, or cause to be
taken, all steps necessary to preserve the limited liability of the Members in
connection with any such additional places of business.
3.
SECTION 7. REGISTERED OFFICE: REGISTERED AGENT.
The registered office of the Company in Delaware shall be Corporation
Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company's
agent for service of process on the Company in Delaware shall be The Corporation
Trust Company. The Members Committee may change, at any time and from time to
time, the location of such registered office and/or such registered agent upon
written notice of the change to the Members.
SECTION 8. MEMBERSHIP INTERESTS; CAPITAL CONTRIBUTIONS; NO WITHDRAWAL OR
RESIGNATION.
(a) MEMBERSHIP INTERESTS. Each Member's Membership Interest as of the date
hereof is set forth opposite such Member's name on Schedule I attached to this
Agreement.
(b) ADDITIONAL CONTRIBUTIONS; INTEREST. No Member shall be obligated to
make any additional capital contribution. Upon any additional capital
contribution made by any Member, the Membership Interests of the Members shall
be adjusted accordingly and stated on an amendment to Schedule I attached to
this Agreement. No Member has any obligation to restore a deficit balance in
such Member's Capital Account or to make any contributions to the Company in
order to restore such deficit balance. No Member shall be paid interest on its
Capital Contribution.
(c) LIABILITY FOR PROMISED CONTRIBUTIONS. A Member is obligated for
agreements to make capital contributions, even if the Member is unable to
perform because of bankruptcy, or any other reason. If a Member does not make
the Member's agreed upon contribution of services or property, the Member is
obligated, at the option of the Company, to contribute cash equal to the value
of the agreed upon contribution.
(d) WITHDRAWAL AND RESIGNATION; RETURN OF CAPITAL CONTRIBUTION. No Member
shall be entitled to withdraw or resign as a Member or to receive any part of
such Member's Capital Contribution or any distribution from the Company in
connection therewith.
SECTION 9. DISTRIBUTIONS.
Net Cash Flow shall be distributed among the Members in accordance with
their respective Membership Interests from time to time as determined by a
Majority Interest of the Members and the Members Committee. In the event the
Company is subject to any tax or other obligation which is attributable to the
interest of one or more Members in the Company, but fewer than all the Members,
such tax or other obligation shall be specially allocated to, and charged
against the Capital Account of, such Member or Members, and the amounts
otherwise distributable to such Member or Members pursuant to this Agreement
shall be reduced by such amount.
SECTION 10. ALLOCATION OF INCOME AND LOSSES.
(a) ALLOCATIONS. Items of income, gain, loss, deduction, credit and tax
preference to be allocated among the Members shall be allocated in accordance
with their respective Membership Interests; provided, however, such allocations
shall be adjusted, if necessary, so as
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to have "substantial economic effect" as provided in Code Section 704(b) and the
Treasury Regulations thereunder.
(b) CHANGE IN MEMBERSHIP INTERESTS. If there is a change in any Member's
Membership Interest during any year, allocations among the Members shall be made
in accordance with their Membership Interests in the Company from time to time
during such year in accordance with Section 706 of the Code using the
closing-of-the-books method, except that depreciation, amortization and similar
items shall be deemed to accrue ratably on a daily basis over the entire year
during which the corresponding asset is owned by the Company for the entire
year, and over the portion of a year after such asset is placed in service by
the Company if such asset is placed in service during the year.
(c) SPECIAL RULES.
(i) If any Company asset has a book value different than its
adjusted tax basis to the Company for federal income tax purposes (whether by
reason of the contribution of such property to the Company, the revaluation of
such property under this Agreement or otherwise), allocations of income, gain,
loss, deduction, credit and tax preference under this Section 10 with respect to
such asset shall take account of any variation between the adjusted tax basis of
such asset for federal income tax purposes and its book value in any manner
prescribed by Section 704(c) of the Code or the Treasury Regulations thereunder.
(ii) Items of income, gain, loss, deduction, credit and tax
preference for state and local income tax purpose shall be allocated to and
among the Members in a manner consistent with the allocation of such items for
federal income tax purposes in accordance with the foregoing provisions of this
Section 10.
SECTION 11. WITHHOLDING.
The Company is authorized to withhold from distributions to be made to a
Member, or with respect to allocations to a Member, and to pay over to a
federal, state or local government, any amounts required to be withheld pursuant
to the Code or any provisions of any other federal, state or local law. Any
amounts so withheld shall be treated as distributed to such Member pursuant to
this Section 11 for all purposes of this Agreement and shall be offset against
the net amounts otherwise distributable to such Member. The Company may also
withhold from distributions that would otherwise be made to a Member, and apply
to the obligations of such Member, any amounts that such Member owes to the
Company. In addition, any tax imposed upon the Company resulting from the
Membership Interest of any Member shall be treated as a distribution to such
Member and shall reduce future distributions of Net Cash Flow to such Member.
SECTION 12. BOOKS, RECORDS AND ACCOUNTING.
(a) BOOKS AND RECORDS. The Company shall maintain complete and accurate
books and records of the Company's business and affairs. The financial records
shall be kept in accordance with generally accepted accounting principles,
consistently applied. The books and records shall be maintained at the principal
place of business of the Company and shall be accessible to the Members in
accordance with the Act.
5.
(b) FISCAL YEAR; ACCOUNTING. . The Company's fiscal year shall be
determined by the Members Committee. The accounting methods and principles to be
followed by the Company shall be selected from time to time by the Members
Committee.
(c) REPORTS. The Company shall provide to the Members reports concerning
the financial condition and results of operation of the Company and the Members'
Capital Accounts within 90 days after the end of each fiscal year.
SECTION 13. COMPANY FUNDS.
The funds of the Company shall be deposited in such bank or other
financial institution account or accounts, or invested in such interest-bearing
or non-interest-bearing investments, as shall be designated by the Members
Committee. All withdrawals from any such bank accounts shall be made only by the
Members Committee or by individuals duly appointed by the Members Committee.
SECTION 14. MANAGEMENT.
(a) MEMBERS COMMITTEE. It shall be the duty and responsibility of the
Members Committee solely and exclusively to manage and control the business and
affairs of the Company, and, subject to Section 16, all decisions regarding the
business and affairs of the Company shall be made by the Members Committee.
Except as provided in this Agreement, each Representative shall have all the
rights and powers of a Representative as provided in the Act and as otherwise
provided by law, and any action taken by a Representative in the manner provided
for in this Agreement shall constitute the act of and serve to bind the Company.
The Members Committee may delegate its authorities and responsibilities for
management of the business affairs of the Company to third parties, but such
delegation shall not relieve the Members Committee of any of its obligations
under this Agreement. In furtherance of this right of delegation, the Members
Committee may appoint and authorize officers of the Company to act on behalf of
the Company with such power and authority as the Members Committee may delegate
in writing to such officer. Subject to Section 16, the Members Committee is
hereby granted (i) the right, power and authority to do on behalf of the Company
all things which, in its judgment, are necessary, proper or desirable to carry
out the aforementioned duties and responsibilities, including but not limited to
the right, power and authority from time to time to incur Company expenses; to
employ and dismiss from employment any and all employees, agents, independent
contractors, attorneys and accountants; to establish employee benefits plans; to
enter into leases for real or personal property; to purchase equipment; and to
manage all other aspects of running the business of the Company all in
accordance with any authorization policy adopted by the Members Committee; and
(ii) such other rights, powers and authorities of a Members Committee as
provided in the Act and as otherwise provided by law.
(b) NO MANAGEMENT BY MEMBERS. Except as otherwise provided in this
Agreement, no Member shall take part in the day-to-day management, or the
operation or control of the business and affairs of the Company. Except as
expressly delegated by the Members Committee, no Member shall be an agent of the
Company or have any right, power or authority to transact any business in the
name of the Company or to act for or on behalf of the Company.
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(c) NUMBER, QUALIFICATION AND TENURE OF REPRESENTATIVES. The Members
Committee shall be established from time to time by resolution of the Members
Committee, and shall be comprised of Member Representatives. As of the date
hereof, the Members Committee shall consist entirely of CRI Representatives. The
composition of the Members Committee shall as closely as possible reflect the
Member's respective Membership Interest at that time. The Chairman of the
Members Committee shall be established from time to time by resolution of the
Members Committee. Any Representative shall continue to serve in such capacity
until the Member appointing such Representative has notified the other Members
in writing of his or her replacement. Any Member may, by written notice to the
other Members, designate a person to serve as an alternate for each such
Member's Representative (each alternate being referred to in this Agreement as
an "Alternate" and, collectively, as the "Alternates"), and such Alternate shall
be entitled, in the absence of such Member's Representative, to attend meetings,
to have such Alternate's presence counted for purposes of establishing a quorum
and to vote on behalf of such Member's Representative at any meeting of the
Members Committee. Each Member, in dealing with other Member's Representatives
or Alternates shall be entitled to rely conclusively upon the power and
authority of such Representatives or Alternates to bind its Member with respect
to all matters unless and until it receives notice to the contrary in writing
from such Member. To the fullest extent permitted by law, each Representative
and Alternate shall be deemed the agent of the Member which appointed such
Person a Representative or Alternate, and such Representative or Alternate shall
not be deemed an agent or a sub-agent of the Company or the other Members and
shall have no duty (fiduciary or otherwise) to the Company or the other Members.
Each Member, by execution of this Agreement, agrees to, consents to, and
acknowledges the delegation of powers and authority to such Representatives and
Alternates, and the actions and decisions of such Representatives and Alternates
within the scope of their respective authority as provided in this Agreement.
(d) MEETINGS. Meetings shall be held at such time and at such place as
shall from time to time be determined by the Members Committee. Meetings of the
Members Committee may be held by conference telephone or other means of
communication by means of which all participants can hear and speak to each
other. Participation in such meeting in such manner shall constitute attendance
and presence in person at the meeting of the person or persons so participating.
No notice of the regular annual meeting need be given. Special meetings of the
Members Committee may be called by the Chairman of the Members Committee or by
any Member on at least one business day's notice to the other Member. The
requested notice may be expressly waived by any Representative, and attendance
by any Representative or Alternate at any meeting of the Members Committee shall
constitute an effective waiver of any required prior notice to the Member
represented by such Representative or Alternate of such meeting, unless such
attendee declares at the onset of such meeting that such attendee's attendance
at such meeting is solely for the purpose of contesting the validity of any
required notice for the meeting. The Chairman of the Members Committee shall,
(i) with reasonable advance notice (which in the case of regular meetings shall
not be less than five days), prepare and distribute an agenda for each meeting
of the Members Committee, (ii) organize and conduct such meeting and (iii)
prepare and distribute minutes of such meeting. Any Member may propose in
advance topics for the agenda or raise topics which are not on the agenda for
such meeting. Each Representative or Alternate of any Member may bring one or
more other advisors to any meeting; provided, that such advisors shall not have
the right to vote on any matter brought before the Members Committee; and
provided further, that the CRI Representatives or Alternates
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shall have the right to call executive sessions of the Members Committee and to
exclude any Person not a Representative or Alternate from such executive
session.
(e) QUORUM AND VOTING A quorum of the Members Committee shall be comprised
of a majority of Representatives or Alternates (or any combination thereof) of
the full Members Committee as constituted pursuant to Section 14(a) of this
Agreement. The affirmative vote of a majority of the Members Committee at a
meeting at which a quorum is present being entitled to vote at any such meeting
must be obtained in connection with the decision of any matter being considered
by the Members Committee. If a quorum is not present, the Representatives and
Alternates present may adjourn the meeting without notice, other than an
announcement at the meeting, until a quorum is present.
(f) COMMITTEES. The Members Committee may appoint from among its members
an Executive Committee, an Audit Committee, a Compensation Committee and other
committees, composed of two or more Representatives, to serve at the pleasure of
the Members Committee. Except as expressly limited by applicable law or this
Agreement, each such committee shall exercise such powers and authority as the
Members Committee may determine and specify in a writing, or any amendment
thereto, designating such committee. Unless otherwise specified in the writing
designating the committee, a majority of the members of such committee may elect
its Chairman, fix its rules of procedure, fix the time and place of meetings and
specify what notice of meetings, if any, shall be given. Written records of the
proceedings of any committee shall be maintained and furnished to the Members
Committee.
(g) ACTION WITHOUT MEETING. Any action required or permitted to be taken
at a meeting of the Members Committee, or of any committee thereof, may be taken
without a meeting and without prior notice if the Members Committee, or
committee thereof, executes one or more identical written consents, setting
forth the action to be taken, signed by at least a majority of the
Representatives (in connection with Members Committee action) or by at least a
majority of the members of any committee (with respect to action by other
committees), provided that such consent or consents are obtained from at least
one CRI Representative or CRI Alternate and, provided futher that prompt notice
of the taking of any action under this subsection by less than unanimous written
consent shall be given to those Representatives or committee members who did not
consent in writing to the action.
(h) COMPENSATION. The Members Committee shall not receive any
compensation, but shall be reimbursed by the Company for reasonable expenses
associated with attendance at meetings.
(i) RULES OF PROCEDURE. The Members Committee may from time to time adopt
detailed rules and procedures not inconsistent with this Agreement for the
management of the business of the Company.
(j) RIGHT TO RELY ON AUTHORITY OF THE REPRESENTATIVES. Any action taken by
the Representatives in their capacity as such, acting on behalf of the Company
pursuant to the authority conferred on them in this Agreement, shall be binding
on the Company. In no event shall any Person dealing with the Representatives
with respect to the conduct of the affairs of the Company be obligated to
ascertain that the terms of this Agreement have been complied with, or
8.
be obligated to inquire into the necessity or expediency of any act or action of
the Representatives. Every contract, agreement, promissory note or other
instrument or document executed by a Representative with respect to any property
of the Company or the conduct of its affairs, in his/her capacity as a
Representative acting on behalf of the Company pursuant to the authority
conferred on him/her in this Agreement, shall be conclusive evidence in favor of
any and every Person relying thereon or claiming under this Agreement that (i)
at the time of the execution and/or delivery of such instrument or document,
this Agreement was in full force and effect, (ii) such instrument or document
was duly executed in accordance with the terms and provisions of this Agreement
and is binding upon the Company, and (iii) the Representative was duly
authorized and empowered to execute and deliver any and every such instrument or
document for and on behalf of the Company. Nothing set forth in this subsection
shall be construed as relieving the Representatives from liability to the
Company or the Members for breach of any of the provisions of this Agreement, or
for acting or failing to act in such manner as constitutes an exception from
indemnification provisions contained in Section 17.
(k) RESPONSIBILITY OF MEMBERS AND REPRESENTATIVES. No Member or
Representative (or their Affiliates) shall have any fiduciary or other duty or
responsibility to the Company, or to any other Member or Representative (or
their Affiliates), except as expressly provided in this Agreement or for acts or
omissions that constitute willful misconduct or constitute an intentional
criminal act. No Representative or Alternate shall be liable to the Company or
any Member or other Representative or Alternate (or their Affiliates) because of
a decision by the Members Committee to have the Company engage in, or not engage
in, a particular business, activity or project.
SECTION 15. MEETINGS OF MEMBERS.
(a) MEETINGS OF MEMBERS. Meetings of Members for any proper purpose may be
called at any time by any Member or Members whose Membership Interest(s) equal
or exceed 50% or by the Members Committee. Members may participate in any
meeting through the use of telephones, video conference or similar
communications equipment by means of which all individuals participating in the
meeting can hear and speak to each other, and such participation shall
constitute presence in person at the meeting. The Company shall give written
notice of the date, time, place and purpose of any meeting to all Members at
least ten days and not more than 60 days prior to the date fixed for the
meeting. Notice may be waived by any Member.
(b) CONSENT OF MEMBERS. Any action required or permitted to be taken at
any annual or special meeting of Members may be taken by execution of one or
more identical written consents without a meeting, without prior notice and
without a vote. The written consent shall set forth the action so taken and
shall be signed by Members having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
Members entitled to vote thereon were present and voting. Prompt notice of the
taking of action by written consent shall be given to all Members who did not
sign the written consent.
9.
SECTION 16. VOTING.
(a) MEMBERS. The affirmative vote or written consent of a Majority
Interest shall decide all matters properly brought before the Members.
(b) VOTING. A Member may vote either in person or by written proxy or
consent signed by the Member or by its duly authorized attorney in fact.
(c) ACTIONS REQUIRING MEMBER APPROVAL. Notwithstanding any other provision
of this Agreement, the affirmative vote or written consent of Members whose
Membership Interest(s) exceed 50% shall be required to approve the following
matters:
(i) The dissolution or winding up of the Company;
(ii) The merger or consolidation of the Company;
(iii) The sale, exchange, mortgage, pledge, encumbrance, lease or
other disposition or transfer of all or substantially all of the assets of the
Company;
(iv) The declaration of any payment or distributions; and
(v) Amendments to this Agreement.
SECTION 17. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) LIMITATION OF LIABILITY. The debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member or
Representative shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a Member or Representative.
(b) INDEMNIFICATION. The Company shall indemnify, to the full extent
permitted by the laws of the State of Delaware, any Person who was or is a
defendant or is threatened to be made a defendant to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such Person (i) is or was a Member,
Representative, Alternate, officer, employee or agent of the Company, or (ii) is
or was a Member, Representative, Alternate, officer, employee or agent of the
Company and is or was serving at the request of the Company as a Member,
Representative, Alternate, director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, against expenses (including reasonable attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Person in connection with such action, suit or proceeding, provided that
the commission or omission which formed the basis of such action, suit or
proceeding does not constitute gross negligence or willful misconduct or
constitute an intentional criminal act on the part of such Person. Any repeal,
amendment or modification of this Section 17 shall not affect any rights or
obligations then existing between the Company and any then incumbent or former
Member, Representative, Alternate, officer, employee or agent with respect to
any state of facts then or theretofore
10.
existing or any action, suit or proceeding theretofore or thereafter brought
based in whole or in part upon such state of facts.
(c) EXPENSES. Expenses incurred by any current or former Member,
Representative, Alternate, officer, employee or agent in defending or
investigating a threatened or pending action, suit or proceeding shall be paid
by the Company in advance of the final disposition of such action, suit or
proceeding, upon receipt of a written undertaking by or on behalf of the Member,
Representative, Alternate, officer, employee or agent to repay such amount if it
ultimately shall be determined that the Member, Representative, Alternate,
officer, employee or agent is not entitled to be indemnified by the Company as
authorized in this Section 17.
(d) NOT EXCLUSIVE. The indemnification and advancement of expenses
mandated or permitted by, or granted pursuant to, this Section 17 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, contract, vote of
Members or disinterested Representatives (or Alternates) or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise both as to action by the Person in an official capacity and as to
action in another capacity while holding such office. The provisions of this
Section 17 shall not be deemed to preclude the indemnification of any Person who
is not specified in subsections (b) and (c) above, but whom the Company has the
power or obligation to indemnify under the laws of the State of Delaware or
otherwise.
(e) INSURANCE. The Company may purchase and maintain insurance on behalf
of any Person who is or was a Member, Representative, Alternate, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a Member, Representative, Alternate, director, officer, employee or
agent of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise against any liability asserted against and
incurred by such Person in any such capacity, or arising out of the Person's
status as such, whether or not the Company would have the power or the
obligation to indemnify such Person of the Company against such liability under
the provisions of this Section 17.
(f) CONTINUATION. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 17 shall continue as to a Person who
has ceased to be a Member, Representative, Alternate, officer, employee or agent
of the Company and shall inure to the benefit of the heirs, executors and
administrators of such Person.
SECTION 18. ASSIGNMENT OF MEMBERSHIP INTERESTS AND NEW MEMBERS.
(a) ASSIGNMENT. A Membership Interest shall not be assignable in whole or
in part, except as expressly provided in this Agreement. An assignment of a
Membership Interest shall not entitle the assignee to become or to exercise any
rights or powers of a Member until such assignee is admitted as a Member in
accordance with this Agreement. An assignment shall entitle the assignee only to
receive such distributions, to share in such profits and to receive such
allocations of income, gain, loss, deduction, credit, tax preference and similar
items to which the assignor was entitled to the extent assigned.
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(b) LIMITATIONS ON ASSIGNMENT. No Member may assign any Membership
Interest (or any portion thereof or interest therein), and no Person shall
become a Member, unless in the opinion of counsel selected by or acceptable to
the Members Committee, such action will not subject the Company to federal
income taxation as an association taxable as a corporation or violate applicable
state or federal securities laws. Any attempted action in contravention of this
Section 18(b) shall be void and of no force or effect. The Company may redeem
the Membership Interest of any Member upon the written consent of all Members,
which consent may be granted or withheld in the sole and absolute discretion of
each Member whose consent is required hereby, and if there would be only one
Member remaining, then, in the sole discretion of the one Member remaining, upon
the admission of one or more additional Members.
(c) NEW MEMBERS. A Person, including, without limitation, an assignee of a
Membership Interest, shall be admitted as a Member only upon (i) the written
consent of all other Members, which consent may be granted or withheld in the
sole and absolute discretion of each Member whose consent is required by this
Agreement and (ii) the execution by such Person of this Agreement. Until the
assignee of a Membership Interest is admitted as a Member, the assignor, subject
to the last sentence of Section 18(a), shall continue to be a Member.
SECTION 19. DISSOLUTION.
The Company shall be dissolved and terminated upon the happening of first
to occur of any of the following events:
(a) The expiration of the term of the Company;
(b) The approval or written consent of a Majority Interest of the Members
for the dissolution or winding up of the Company;
(c) The bankruptcy (as defined in Section 18-304 of the Act) of any
Member, unless within 90 days of such occurrence the Company is continued by the
written consent of a majority of the other Membership Interests, which consent
may be granted or withheld in the sole and absolute discretion of each Member
whose consent is required hereby, and if there is only one Member remaining, the
admission of one or more additional Members. The Company shall automatically
continue without any action on the part of the Members upon the withdrawal,
resignation, expulsion, bankruptcy (as defined in Section 18-304 of the Act) or
dissolution of a Member or other event which terminates the continued membership
of a Member until the Company is otherwise dissolved and terminated pursuant to
the terms of this Agreement; and
(d) Judicial dissolution pursuant to the Act.
SECTION 20. WINDING UP AND DISTRIBUTION OF ASSETS.
(a) WINDING UP. If the Company is dissolved, the Members Committee shall
wind up the affairs of the Company.
(b) DISTRIBUTION OF ASSETS. Upon the winding up of the Company, the
Members Committee shall pay or make reasonable provision to pay all claims and
obligations of the Company, including all costs and expenses of the liquidation
and all contingent, conditional, or
12.
unmatured claims and obligations that are known to the Members Committee but for
which the identity of the claimant is unknown. If there are sufficient assets,
such claims and obligations shall be paid in full and any such provision shall
be made in full. If there are insufficient assets, such claims and obligations
shall be paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefor. Any remaining assets shall be distributed as follows:
(i) First, to creditors, including Members in their capacities as
creditors, in the order of priority as provided by law; and
(ii) Second, to Members in accordance with their respective positive
Capital Accounts, after giving effect to all contributions, distributions and
allocations for all periods.
SECTION 21. CONFLICT OF INTEREST.
No Member shall be required to act under this Agreement as its sole and
exclusive business activity and any Member may have other business interests and
engage in other activities in addition to those relating to the Company. Neither
the Company nor any Member shall have any right by virtue of this Agreement in
or to any other interests or activities of the others or to the income or
proceeds derived therefrom. A Member may transact business with the Company and,
subject to applicable laws, has the same rights and obligations with respect
thereto as any other Person. No transaction between a Member and the Company
shall be voidable solely because a Member has a direct or indirect interest in
the transaction if either the transaction is fair and reasonable to the Company
or the percentage or number of disinterested Members as required under this
Agreement, or applicable law, authorize, approve or ratify the transaction.
SECTION 22. TAXATION.
(a) STATUS OF THE COMPANY. The Members acknowledge that this Agreement
creates a partnership for federal and state income tax purposes (and only for
such purposes), and hereby agree not to elect to be excluded from the
application of Subchapter K of Chapter 1 of Subtitle A of the Code or any
similar state statute.
(b) TAX ELECTIONS. The Members Committee shall, upon the written request
of any Member benefited thereby, cause the Company to file an election under
Section 754 of the Code and the Treasury Regulations thereunder to adjust the
basis of the Company assets under Section 734(b) or 743(b) of the Code and a
corresponding election under the applicable sections of state and local law. The
Members Committee shall have the authority to make all other Company elections
permitted under the Code, including elections of methods of depreciation;
provided, however, that no election shall be made pursuant to Treasury
Regulation Section 301.7701.3(c) to cause the Company to be treated for federal
income tax purposes as an association taxable as a corporation without the prior
written consent of all Members.
(c) COMPANY TAX RETURNS. The Members Committee shall cause the necessary
federal income and other tax returns and information returns for the Company to
be prepared. Each Member shall provide such information, if any, as may be
needed by the Company for purposes of preparing such tax returns and information
returns. The Members Committee shall
13.
deliver to each Member within 90 days after the end of each fiscal year a copy
of the federal income tax returns for the Company as filed with the appropriate
taxing authorities, and upon the written request of any Member, a copy of any
state and local income tax return as filed.
(d) TAX AUDITS.
(i) CRI shall be the Company's tax matters Member (the "Tax Matters
Member") with respect to federal income tax audits. If at any time the Tax
Matters Member cannot or elects not to serve as the Tax Matters Member, is
removed by the Members as the Tax Matters Member or ceases to be a Member, a
Majority Interest shall select another Member to be the Tax Matters Member. The
Tax Matters Member, as an authorized representative of the Company, shall direct
the defense of any claims made by the IRS to the extent that such claims relate
to the adjustment of Company items at the Company level. The Tax Matters Member
shall promptly deliver to each Member a copy of any notice of beginning of
administrative proceedings or any report explaining the reasons for a proposed
adjustment received from the IRS relating to or potentially resulting in an
adjustment of Company items. The Tax Matters Member shall, unless a Majority
Interest consents to the contrary, diligently and in good faith contest any
proposed adjustment of a Company item that principally affects the Members at
the administrative and judicial levels, including, if appropriate or if
requested by a Majority Interest, appealing any adverse judicial decision, and
shall consider in good faith any suggestions made by any Member or its counsel
regarding the conduct of such administrative or judicial proceedings. The Tax
Matters Member shall keep each Member advised of all material developments with
respect to any proposed adjustment that come to its attention, including,
without limitation, the scheduling of all conferences and substantive telephone
calls with the IRS. Each Member shall be entitled, at its own expense, to attend
all meetings with the IRS and to review in advance any material written
information (including, without limitation, any pleadings, memoranda or similar
items) to be submitted to the IRS. Without first obtaining the consent of a
Majority Interest, the Tax Matters Member shall not, with respect to any
proposed adjustment of a Company item that materially and adversely affects any
Member, (A) enter into a settlement agreement that purports to bind Members
other than the Tax Matters Member (including, without limitation, any
stipulation consenting to an entry of decision by any tax court), or (B) enter
into an agreement or stipulation extending the statute of limitations.
(ii) The Company shall promptly deliver to each Member a copy of all
notices, communications, reports or writings of any kind with respect to income
or similar taxes received from any state or local taxing authority relating to
the Company that might materially and adversely affect each Member, and shall
keep such Members advised of all material developments with respect to any
proposed adjustment of Company items that come to its attention.
(iii) Each Member shall continue to have the rights described in
this Section 22(d) with respect to tax matters relating to any period during
which it was a Member, whether or not it is a Member at the time of the tax
audit or contest.
14.
SECTION 23. NOT A PUBLICLY TRADED PARTNERSHIP.
All interests in the Company have been or will be issued in a transaction
or transactions that were not required to be registered under the Securities Act
of 1933 (the "1933 Act"), and to the extent such offerings or sales were not
required to be registered under the 1933 Act by reason of Regulation S (17 CFR
230.901 through 230.904) or any successor thereto, such offerings or sales would
not have been required to be registered under the 1933 Act if the interests so
offered or sold had been offered and sold within the United States.
No admission (or purported admission) of a Member, and no transfer (or
purported transfer) of all or any part of a Member's interest in the Company (or
any economic interest therein) in the Company, whether to another Member or to a
person who is not a Member, shall be effective, and any such admission or
transfer (or purported admission or transfer) shall be void ab initio, and no
person shall otherwise become a Member if after such admission or transfer (or
purported admission or transfer) the Company would have more than 100 Members.
For purposes of determining whether the Company will have more than 100 Members,
each person indirectly owning an interest in the Company through a partnership
(including any entity treated as a partnership for federal income tax purposes),
a grantor trust or an S corporation (each such entity a "flow-through entity")
shall be treated as a Member unless the Members Committee determines in its sole
and absolute discretion that less than substantially all of the value of the
beneficial owner's interest in the flow-through entity is attributable to the
flow-through entity's interest (direct or indirect) in the Company.
SECTION 24. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and any controversies, claims or
arbitration under this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflict of law rules.
(b) BINDING EFFECT. Except as otherwise specifically provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, heirs, administrators, executors, successors and
assigns.
(c) PRONOUNS AND NUMBER. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in either the masculine, the feminine or the
neuter gender shall include the masculine, feminine and neuter.
(d) CAPTIONS. Captions or section headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision of this Agreement.
(e) ENFORCEABILITY. If any provision of this Agreement, or the application
of the provision to any Person or circumstance shall be held invalid, the
remainder of this Agreement, or the application of that provision to Persons or
circumstances other than those with respect to which it is held invalid, shall
not be affected thereby.
15.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
(g) NOTICES. Any notices permitted or required under this Agreement shall
be deemed to have been given when delivered in person, by courier, by facsimile
or three days after being deposited in the United States mail, postage prepaid,
and addressed to the President of the Company at the Company's principal place
of business and to the President of any Member at such Member's address
reflected on the books and records of the Company.
(h) ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties with respect to the matters set forth in the
Agreement and supersedes all prior understandings or agreements between the
parties with respect to such matters. This Agreement, including all Schedules,
may only be amended, modified or supplemented by written agreement of all
parties to this Agreement.
(i) SINGLE MEMBER LLC. Each of the undersigned acknowledges and agrees
that, so long as the Company has less than two (2) Members, certain provisions
of this Agreement may be inapplicable in light of the fact that the Company may
be disregarded as an entity for federal and state income tax purposes (as
determined in good faith by the Members in agreement with the sole Member). In
such event and notwithstanding any provision of this Agreement to the contrary,
any such inapplicable provision shall be construed and adhered to in a manner
and to the fullest extent that the intent of such provision may be carried out
in the context of a single member limited liability company (as determined in
good faith by the sole Member).
(j) FURTHER ASSURANCES. The Members shall execute and deliver such further
instruments and do such further acts and things as may be required to carry out
the intent and purposes of this Agreement. Each Member shall execute all such
certificates and other documents and shall do all such filing, recording,
publishing, and other acts as the Members Committee deems appropriate to comply
with the requirements of law for the formation and operation of the Company and
to comply with any laws, rules, and regulations relating to the acquisition,
operation, or holding of the property of the Company.
(k) THIRD PARTIES. Except as provided in Section 17 (Indemnification),
nothing in this Agreement, whether express or implied, shall be construed to
give any Person other than a Member or the Company any legal or beneficial or
other equitable right, remedy or claim under or in respect of this Agreement,
any covenant, condition, provision or agreement contained in this Agreement or
the property of Company.
(l) FACSIMILE SIGNATURES. The facsimile signature of any Representative or
Member may be used at all times and for all purposes in place of an original
signature.
(m) RELIANCE UPON BOOKS, REPORTS AND RECORDS. Unless he has knowledge
concerning the matter in question which makes his reliance unwarranted, each
Representative and Member shall, in the performance of his duties under this
Agreement, be entitled to rely on information, opinions, reports or statements,
including, without limitation, financial statements and other financial data, if
prepared or presented by one or more employees of the Company or
16.
by legal counsel, accountants or other Persons as to matters such Representative
or Member reasonably believes to be within such Person's professional or expert
competence.
(n) TIME PERIODS. In applying any provision of this Agreement which
requires that an act be done in or not done in a specified number of days prior
to an event or that an act be done during a period of a specified number of
days, calendar days shall be used, the day of the doing of the act shall be
excluded, and the day of the event shall be included.
(o) WAIVER. No failure by any Representative or Member to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
The undersigned Members have executed this Agreement as of the date first
set forth above.
URS RESOURCES, LLC
By: /s/ URS Resources, LLC
-----------------------
17.
SECTION 1. RESTATEMENT OF LIMITED LIABILITY COMPANY AGREEMENT........................................ 1
SECTION 2. NAME...................................................................................... 1
SECTION 3. DEFINITIONS............................................................................... 2
SECTION 4. BUSINESS PURPOSE OF THE COMPANY........................................................... 3
SECTION 5. TERM...................................................................................... 3
SECTION 6. PRINCIPAL PLACE OF BUSINESS............................................................... 3
SECTION 7. REGISTERED OFFICE: REGISTERED AGENT....................................................... 4
SECTION 8. MEMBERSHIP INTERESTS; CAPITAL CONTRIBUTIONS; NO WITHDRAWAL OR RESIGNATION................. 4
SECTION 9. DISTRIBUTIONS............................................................................. 4
SECTION 10. ALLOCATION OF INCOME AND LOSSES........................................................... 4
SECTION 11. WITHHOLDING............................................................................... 5
SECTION 12. BOOKS, RECORDS AND ACCOUNTING............................................................. 5
SECTION 13. COMPANY FUNDS............................................................................. 6
SECTION 14. MANAGEMENT................................................................................ 6
SECTION 15. MEETINGS OF MEMBERS....................................................................... 9
SECTION 16. VOTING.................................................................................... 10
SECTION 17. LIMITATION OF LIABILITY AND INDEMNIFICATION............................................... 10
SECTION 18. ASSIGNMENT OF MEMBERSHIP INTERESTS AND NEW MEMBERS........................................ 11
SECTION 19. DISSOLUTION............................................................................... 12
SECTION 20. WINDING UP AND DISTRIBUTION OF ASSETS..................................................... 12
SECTION 21. CONFLICT OF INTEREST...................................................................... 13
SECTION 22. TAXATION.................................................................................. 13
SECTION 23. NOT A PUBLICLY TRADED PARTNERSHIP......................................................... 15
SECTION 24. MISCELLANEOUS............................................................................. 15
