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Title: |
Operating Agreement |
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Date: |
2001 |
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Preview shows 20KB of 111KB total |
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$48 |
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ID: |
#346262 |
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BERKADIA MANAGEMENT LLC,
a Delaware Limited Liability Company
OPERATING AGREEMENT
August 21, 2001
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{PAGE}
OPERATING AGREEMENT
OF
BERKADIA MANAGEMENT LLC
This OPERATING AGREEMENT is entered into and shall be effective as of the
21st day of August, 2001, by and between BH Finance LLC, a Nebraska limited
liability company ("BH Finance"), and WMAC Investment Corporation, a Wisconsin
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corporation ("WMAC"), as the sole Members of the Company.
----
RECITALS
A. Immediately prior to the date hereof, BH Finance and WMAC were the sole
members of Berkadia LLC, a Delaware limited liability company ("Berkadia").
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B. In order to consolidate management of the affairs of Berkadia through a
single entity (i) concurrently herewith (A) BH Finance is contributing a portion
of its interest in Berkadia to BHF Berkadia Member Inc., a Delaware corporation
("B-Sub"), and (B) WMAC is contributing a portion of its interest in Berkadia to
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WMAC Investors, Inc., a Delaware corporation ("L-Sub"), (ii) each of BH Finance
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and WMAC is simultaneously contributing the remainder of its interest in
Berkadia to the Company, and (iii) Berkadia's operating agreement is being
amended to provide for, among other things, the admission of the Company as
Berkadia's manager (in such capacity, "Berkadia Manager").
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C. The parties now desire to set forth an operating agreement for the Company
to govern such matters as are set forth herein, all on the terms and conditions
set forth below.
SECTION 1
THE COMPANY
1.1 Formation.
---------
The Company has been formed as a limited liability company under and
pursuant to the provisions of the Act and upon the terms and conditions set
forth in this Agreement. The rights and liabilities of the Members shall be as
provided under the Act, the Certificate (as defined herein) and this Agreement.
1.2 Name.
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The name of the Company shall be "Berkadia Management LLC" and all business
of the Company shall be conducted in such name or such other name as is agreed
by the Members.
1.3 Purpose; Powers.
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The purposes of the Company are:
{PAGE}
(a) to hold a membership interest in Berkadia;
(b) to act as Berkadia Manager, including, without limitation, to
control and manage the business and affairs of Berkadia as contemplated by the
Berkadia Operating Agreement;
(c) to make such additional investments and engage in such additional
activities as the Members may approve; and
(d) to engage in any and all activities related or incidental to the
foregoing purposes.
(The activities described in clauses (a) through (d) above shall be
referred to as the "Business.")
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The Company shall have the power to do any and all acts necessary,
appropriate, proper, advisable, incidental or convenient to or in furtherance of
such purposes.
1.4 Principal Place of Business.
---------------------------
The principal place of business of the Company shall be at 1440 Kiewit
Plaza, Omaha, Nebraska 68131 or such other location within or without the State
of Delaware as the Members may agree.
1.5 Term.
----
The term of the Company commenced on the date the certificate of formation
of the Company (as such certificate may be amended, modified, supplemented or
restated from time to time, the "Certificate") was filed in the office of the
-----------
Secretary of State of the State of Delaware in accordance with the Act and shall
continue until the winding up and liquidation of the Company pursuant to Section
10 hereof.
1.6 Filings; Agent for Service of Process.
-------------------------------------
(a) The Members have caused the Certificate to be filed in the office
of the Secretary of State of the State of Delaware in accordance with the Act.
The Members shall take any and all other actions reasonably necessary to perfect
and maintain the status of the Company as a limited liability company under the
laws of the State of Delaware, including the preparation and filing of such
amendments to the Certificate and such other assumed name certificates,
documents, instruments and publications as may be required by law.
(b) The Members shall execute and cause to be filed original or
amended certificates and shall take any and all other actions as may be
reasonably necessary to perfect and maintain the status of the Company as a
limited liability company or similar type of entity under the laws of any other
jurisdictions in which the Company engages in business.
(c) As of the Effective Date, the name and address of the Company's
designated agent and registered office for service of process on the Company in
the State of
2
{PAGE}
Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400,
Wilmington, Delaware 19808.
1.7 Definitions.
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(a) Capitalized words and phrases used in this Agreement have the
following meanings:
"Act" means the Delaware Limited Liability Company Act, 6 Del. C. (S)18-
101, et seq., as amended from time to time (or any corresponding provisions of
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succeeding law).
"Additional Capital Contributions" means, with respect to each Member, the
Capital Contributions, if any, made by such Member pursuant to Section 2.4
hereof.
"Adjusted Capital Account Deficit" means, with respect to any Member, the
deficit balance, if any, in such Member's Capital Account as of the end of the
relevant Allocation Year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member
is deemed to be obligated to restore pursuant to Section 1.704-1(b)(2)(ii)(c) or
the penultimate sentences in Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations; and
(ii) Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-
- - - -
1(b)(2)(ii)(d)(6) of the Regulations.
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The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
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and shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, any other Person who,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person.
"Affiliated Member" has the meaning set forth in Section 9.2 of this
Agreement.
"Agreement" means this Operating Agreement of Berkadia Management LLC,
including any appendix attached hereto, as amended from time to time. Words
such as "herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to
this Agreement as a whole, unless the context otherwise requires.
"Allocation Year" means (i) the period that commenced on the Effective Date
and ends on December 31, 2001, (ii) any subsequent twelve (12) month period
commencing on January 1 and ending on December 31 or (iii) any portion of the
period described in clauses (i) or (ii) for which the Company is required to
allocate Profits, Losses and other items of Company income, gain, loss or
deduction pursuant to Section 3 hereof and Appendix B hereto.
"Available Cash" means the amount of cash that the Members deem available
for distribution, taking into account all debts, liabilities, and obligations of
the Company then due or soon to come due, including, without limitation,
payments of capital contributions required to be
3
{PAGE}
made under the Berkadia Operating Agreement and working capital and other
amounts and reserves that the Members deem necessary or advisable in connection
with the operation of the Company's Business and the payment of capital
contributions required to be made under the Berkadia Operating Agreement;
provided, however, that Available Cash shall be determined without regard to the
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Finova Fees or the Stock Proceeds.
"Berkadia" has the meaning set forth in the Recitals to this Agreement.
"Berkadia Manager" has the meaning set forth in the Recitals to this
Agreement.
"Berkadia Operating Agreement" means the First Amended and Restated
Operating Agreement of Berkadia, being entered into concurrently herewith, as
such agreement may be amended from time to time.
"BH Finance" has the meaning set forth in the Recitals to this Agreement.
"B-Sub" has the meaning set forth in the Recitals to this Agreement.
"Capital Account" means, with respect to any Member, the Capital Account
maintained for such Member in accordance with the following provisions:
(i) To each Member's Capital Account there shall be credited (A)
such Member's Capital Contributions actually (or deemed) made, (B) such Member's
distributive share of Profits and any items in the nature of income or gain
which are specially allocated pursuant to Section 3 hereof or Paragraph 1, 2 or
3 of Appendix B hereto, and (C) the amount of any Company liabilities assumed by
such Member or which are secured by any property distributed to such Member;
(ii) To each Member's Capital Account there shall be debited (A) the
amount of money and the Gross Asset Value of any property distributed (or deemed
distributed) to such Member pursuant to Section 2.3(e), 4, 5.4 or 10 hereof, (B)
such Member's distributive share of Losses and any items in the nature of
expenses or losses which are specially allocated pursuant to Section 3 hereof or
Paragraph 1, 2 or 3 of Appendix B hereto, and (C) the amount of any liabilities
of such Member assumed by the Company or which are secured by any property
contributed by such Member to the Company; and
(iii) In the event an Interest is Transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the Interest.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner
consistent with such Regulations.
"Capital Contributions" means, with respect to any Member, the amount of
money and the initial Gross Asset Value of any property (other than money)
contributed or required to be contributed to the Company by such Member pursuant
to Section 2, Section 10.2 or Section 12.2 hereof, including Required Capital
Contributions and Additional Capital Contributions.
4
{PAGE}
"Certificate" has the meaning set forth in Section 1.5 of this Agreement.
"Certificate of Cancellation" means a certificate filed in accordance with
Section 18-203 of the Act.
"Code" means the United States Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" has the meaning given such term in the Berkadia Operating
Agreement.
"Company" means the limited liability company formed pursuant to the
Certificate and continued pursuant to this Agreement.
"Company Minimum Gain" has the same meaning as the term "partnership
minimum gain" in Section 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
"Covered Losses" means all losses, liabilities, expenses or damages
(including reasonable attorneys' fees and expenses) paid to any Third Party
Claimant for claims or legal actions arising out of the Senior Loan or the
Management Agreement or the performance of responsibilities, or taking of
actions or decisions pursuant to either, but shall not include claims or actions
to collect or enforce the Outside Financing or any other contractual obligation
of the Company.
"Debt Percentage" means, with respect to any Member, such Member's Debt
Percentage as set forth in Appendix A hereto.
"Depreciation" means, for each Allocation Year, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such Allocation Year, except that if the Gross Asset
Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such Allocation Year, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such Allocation Year bears to such beginning adjusted tax basis; provided,
--------
however, that if the adjusted basis for federal income tax purposes of an asset
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at the beginning of such Allocation Year is zero, Depreciation shall be
determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the Members.
"Effective Date" means the date hereof.
"FCC" means Finova Capital Corporation.
"Fee Percentage" means, with respect to any Member, such Member's Fee
Percentage as set forth in Appendix A hereto.
"Finova Fees" means the amounts, if any, received by the Company under
Section 4.1(a) of the Berkadia Operating Agreement, as well as any amounts
derived by the Company therefrom.
5
{PAGE}
"Fiscal Year" means (i) the period commencing on the Effective Date and
ending on December 31, 2001, (ii) any subsequent twelve-month period commencing
on January 1 and ending on December 31 and (iii) the period commencing on the
immediately preceding January 1 and ending on the date on which all property is
distributed to the Members pursuant to Section 10 hereof.
"FNV" means The Finova Group Inc.
"FNV Stock" has the meaning set forth in Section 11.5 of this Agreement.
"Gross Asset Value" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a
Member to the Company shall be the gross fair market value of such asset at the
time of contribution, as determined by the Members;
(ii) The Gross Asset Values of all Company assets shall be adjusted
to equal their respective gross fair market values (taking Code Section 7701(g)
into account), as determined by the Members as of the following times: (A) the
acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de minimis Capital Contribution; (B) the
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distribution by the Company to a Member of more than a de minimis amount of
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Company property as consideration for an interest in the Company; and (C) the
liquidation of the Company within the meaning of Regulations Section 1.704-
1(b)(2)(ii)(g); provided that an adjustment at the times described in clauses
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(A) and (B) of this paragraph shall be made only if the Members determine that
such adjustment is necessary to reflect the relative economic interests of the
Members in the Company;
(iii) The Gross Asset Value of any item of Company assets distributed
to any Member shall be adjusted to equal the gross fair market value (taking
Code Section 7701(g) into account) of such asset on the date of distribution as
determined by the Members; and
(iv) The Gross Asset Values of Company assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vi) of
-
the definition of "Profits" and "Losses" or Paragraph 1(g) of Appendix B hereto;
provided, however, that Gross Asset Values shall not be adjusted pursuant to
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this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph
(ii) is required in connection with a transaction that would otherwise result in
an adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
subparagraph (ii) or (iv), such Gross Asset Value shall thereafter be adjusted
by the Depreciation taken into account with respect to such asset, for purposes
of computing Profits and Losses.
6
{PAGE}
"Gross Profit" shall mean the sum of (a) the amounts distributed to a
Member pursuant to Section 4.1 or Section 10.2 of this Agreement, (b) in the
case of WMAC, the fees paid to WMAC or any of its Affiliates pursuant to the
Management Agreement (net of amounts, if any, paid over to BH Finance pursuant
to Section 11.1 hereof), and (c) in the case of BH Finance, the amounts, if any,
paid over to it pursuant to Section 11.1 hereof, in each case, from the
Effective Date to the date of the Covered Loss.
"Interest" means an ownership interest in the Company, including any and
all benefits to which the holder of such Interest may be entitled as provided in
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