OPERATING AGREEMENT OF JCM PARTNERS, LLC

Contribution Agreement

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Title: OPERATING AGREEMENT OF JCM PARTNERS, LLC
Governing Law: Delaware Date: 7/29/2005

Exhibit 3.8

OPERATING AGREEMENT OF JCM PARTNERS, LLC

(a Delaware limited liability company)

(Second Amended and Restated as of June 21, 2005)

TABLE OF CONTENTS


ARTICLE 1: THE COMPANY					2
	1.1	Formation			2
	1.2	Issuance to Initial Members			2
		1.2.1	Issuance of Membership Interests		2
		1.2.2	Approval of Contribution Agreements		2
	1.3	Organizational Documents			2
		1.3.1	Certificate		2
		1.3.2	Bylaws		3
	1.4	Effectiveness of this Agreement			3
		1.4.1	Member		3
		1.4.2	Assignee		3
		1.4.3	Pursuant to Section 18-101(7)(a) of the Act		3
	1.5	Company Name			4
	1.6	Authorized Persons			4
	1.7	Principal Place of Business			4
	1.8	Registered Office and Registered Agent			4
	1.9	Purposes			4
	1.10	Powers			4
ARTICLE 2: CAPITALIZATION AND VOTING					5
	2.1	Capitalization			5
		2.1.1	Membership Interests		5
			2.1.1.1	Unit	5
			2.1.1.2	Preferred Unit	5
			2.2.2.3	Unit Holder	5
		2.1.2	Classes of Units and Preferred Units		5
		2.1.3	Authority to Issue Units and Preferred Units		5
		2.1.4	Protective Provisions for the Preferred Units and Units		6
			2.1.4.1	Protective Provisions for Preferred Units	6
			2.1.4.2	Protective Provisions for Units	6
		2.1.5	Creation of Class 1 Certificate of Designations		8
		2.1.6	Creation of Other Certificates of Designations		8
		2.1.7	Splits and Reverse Splits		8
		2.1.8	Status of Repurchased or Redeemed Units or Preferred Units		8
	2.2	Member Voting			8
		2.2.1	Member Voting Rights		8
			2.2.1.1	Election of Managers	9
			2.2.1.2	Variable Board Size	9
			2.2.1.3	Amendments	9
			2.2.1.4	Special Meeting	9
			2.2.1.5	Annual Meeting	9
			2.2.1.6	Mergers, Consolidation and Dissolution	9
			2.2.1.7	Other Matters Approved by the Board of Managers	9
			2.2.1.8	Class Voting	9
		2.2.2	Class Voting for the Units and Preferred Units		9
			2.2.2.1	Mergers or Consolidation; Dissolution	10
			2.2.2.2	Certificate of Designations	10
			2.2.2.3	Preferred Units	10
			2.2.2.4	Units	10
			2.2.2.5	Required by Law	10
		2.2.3	Separate Vote by Class or Series		10
	2.3	Voting Rules			10
		2.3.1	Voting in General		10


		2.3.2	Annual and Special Meetings		11
		2.3.3	Determining a Quorum		11
		2.3.4	Required Vote		11
		2.3.5	Voting by Subsidiaries		11
		2.3.6	Cumulative Voting for Managers and Removal of Managers		12
		2.3.7	Assignee Voting		12
ARTICLE 3: MANAGERS AND OFFICERS					13
	3.1	Board of Managers			13
	3.2	Number and Term of Office of Managers			13
		3.2.1	Size of Board		13
		3.2.2	Election of Managers		13
		3.2.3	Term of Office and Vacancies		13
		3.2.4	Groups of Managers		13
	3.3	Authority of Board of Managers			14
	3.4	General Powers of Managers			14
	3.5	Reimbursement of Expenses			15
	3.6	Interested Transactions			15
	3.7	Officers			15
	3.8	Amendment and Interpretation of Bylaws, Certificates of Designations and Agreement			15
ARTICLE 4: DISTRIBUTIONS					17
	4.1	Additional Distributions			17
	4.2	Allocation of Additional Distributions			17
	4.3	Distributions Relating to Liquidation Events			17
	4.4	Priority			18
	4.5	Withholding			18
ARTICLE 5: DISSOLUTION, LIQUIDATION AND TERMINATION					19
	5.1	Dissolution			19
		5.1.1	Events of Dissolution		19
		5.1.2	Effective Date		19
	5.2	Application of Assets			19
	5.3	Gain or Losses in Process of Liquidation			19
	5.4	Procedural and Other Matters			20
		5.4.1	Winding Up Company Affairs		20
		5.4.2	Cancellation of Certificate		20
ARTICLE 6: TRANSFERS OF INTERESTS					21
	6.1	Transfer Application			21
	6.2	Transfer Instructions			21
	6.3	Transfers Restrictions			21
ARTICLE 7: TAX MATTERS AND ALLOCATIONS					22
	7.1	Certain Definitions			22
		7.1.1	Treasury Regulations		22
		7.1.2	Capital Contribution		22
		7.1.3	Book Value		22
		7.1.4	Depreciation		22
		7.1.5	Book Gain or Book Loss		23
		7.1.6	Percentage Interest		23
		7.1.7	Profit and Loss		23
	7.2	Maintenance of Capital Accounts			23
	7.3	Transfer of Capital Accounts			23
	7.4	Allocations			24
		7.4.1	Allocation Procedures		24
		7.4.2	Allocations of Profits and Losses		24
			7.4.2.1	Losses	24

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			7.4.2.2	Profits	24
			7.4.2.3	Items of Income or Loss	24
			7.4.2.4	Special and Regulatory Allocations	25
		7.4.3	Rights of Units or Preferred Units		26
	7.5	Tax Matters Partner			26
		7.5.1	General Authority		26
		7.5.2	Term of Office		26
		7.5.3	Indemnity		26
		7.5.4	Tax Matter Partner Additional Responsibilities		27
ARTICLE 8: LIMITATIONS ON LIABILITY AND INDEMNIFICATION					28
	8.1	Limited Liability and Contributions of Members			28
		8.1.1	Limited Liability		28
		8.1.2	Capital Contribution		28
	8.2	Limitations of Liability and Indemnity of Managers and Officers; Insurance			28
		8.2.1	Limited Liability of Managers and Officers		28
		8.2.2	Indemnification		28
		8.2.3	Insurance Coverage		29
	8.3	No Adverse Modification of Indemnity			29
ARTICLE 9: MISCELLANEOUS PROVISIONS					30
	9.1	Notices			30
	9.2	Binding Provisions			30
	9.3	Appointment of Attorney-In-Fact			30
		9.3.1	Appointment		30
		9.3.2	Irrevocable Power of Attorney		31
		9.3.3	Presumption of Authority		31
	9.4	Waiver			31
	9.5	Applicable Law			31
	9.6	Severability of Provisions			31
	9.7	Headings			32
	9.8	Further Assurances			32
	9.9	Counterparts			32
	9.10	Entire Agreement			32
	9.11	Arbitration			32
	9.12	Certain Definitions			32
		9.12.1	Affiliate		32
		9.12.2	Cash		33
		9.12.3	Consent		33
		9.12.4	Entity		33
		9.12.5	Person		33
	9.13	Amendment			33
EXHIBIT A: CERTIFICATE OF FORMATION
EXHIBIT B: THIRD RESTATED BYLAWS OF THE COMPANY As of June 25, 2003
EXHIBIT C: FORM OF TRANSFER APPLICATION
EXHIBIT D-1: AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS FOR THE CLASS 1 UNITS
EXHIBIT D-2: AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS FOR THE CLASS 2 UNITS
EXHIBIT D-3: CERTIFICATE OF DESIGNATIONS FOR THE CLASS 3 UNITS
EXHIBIT D-4: CERTIFICATE OF DESIGNATIONS FOR THE SERIES B PREFERRED UNITS
INDEX

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OPERATING AGREEMENT OF JCM PARTNERS, LLC

(a Delaware limited liability company)

(Second Amended and Restated as of June 21, 2005)

This Second Amended and Restated Limited Liability Company Agreement of JCM Partners, LLC, a Delaware limited liability company (the “ Company ”), dated as of June 21, 2005, as amended from time to time as herein provided (“ Agreement ,” “ Operating Agreement ” or “ Second Amended and Restated Agreement ”) is entered into by and among the Members (see 1.4.1) and those Persons (see 9.12.5) thereafter who become Members, and all Persons who become a party to this Agreement in accordance with Section 1.4.3. This Agreement amends and restates the Amended and Restated Limited Liability Company Agreement, dated as of June 25, 2003 (the “ Amended and Restated Agreement ”). This Agreement as originally entered into on June 30, 2000 (the “ Effective Date ”) is referred to herein as the “ Original Agreement .”

In consideration of the mutual covenants and obligations set forth in this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement, intending to be bound legally, hereby agree as follows:

[Intentionally Left Blank]

I. ARTICLE 1: THE COMPANY







1.1		Formation









Pursuant to the Order filed on June 2, 2000, with the United States Bankruptcy Court for the Eastern District of California (the “ Court ”) which confirmed the IRM Corporation’s Amended Joint Plan of Reorganization dated May 9, 2000 (the “ Order ”), those Persons who received Membership Interests (see 2.1.1) in the Company on the Effective Date (the “ Initial Members ”) formed the Company as a limited liability company under the provisions of the Delaware Limited Liability Company Act (the “ Act ”), under the terms and conditions set forth in the Original Agreement.









1.2		Issuance to Initial Members









1.2.1		Issuance of Membership Interests









		On the Effective Date, the Company issued Membership Interests to the Initial Members in exchange for the receipt of the properties identified in those agreements, including, without limitation, the merger agreements and transfer documents referenced in the Order, pursuant to which the Company was capitalized (“ Contribution Agreements ”). The initial Capital Account (see 7.2) for each Initial Member was deemed to be equal to the agreed upon value of the Membership Interests issued to each Member on the Effective Date. The number of Units or Preferred Units of each class issued to the Initial Members was pursuant to the Order and the Contribution Agreements. Each of the Initial Members was automatically and without any further act admitted as a Member of the Company on the Effective Date.









1.2.2		Approval of Contribution Agreements









		Pursuant to Section 18-209(b) of the Act, the terms and conditions contained in the Contribution Agreements were deemed approved and the Company was authorized and empowered to execute, perform and consummate the transactions contemplated therein without any further approval or Consent (see 9.12.3) from the Members or the Board of Managers (see 3.1). The principal terms of the Original Agreement and the Contribution Agreements were approved by the Court in connection with the Order.









1.3		Organizational Documents









The rights and liabilities of the Members shall be as provided under the Act, this Agreement, the Certificate (see 1.3.1), the Bylaws (see 1.3.2), Certificates of Designation (see 2.1.5 and 2.1.6) and the Transfer Application (see 6.1), each of which is deemed part of this Agreement.









1.3.1		Certificate





		“Certificate” means the “ Certificate of Formation ” of the Company (see Exhibit A ), as originally filed with the office of the Delaware Secretary of State, as amended from time to time.

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1.3.2		Bylaws









		“Bylaws” means the Third Restated Bylaws (amended as of June 25, 2003) of the Company (see Exhibit B ), as amended from time to time by the Board of Managers, governing various aspects of the operation of the Company and the rights and obligations of its Members, Board of Managers, officers and agents. All provisions of the Bylaws not inconsistent with law or this Agreement shall be valid and binding.





1.4		Effectiveness of this Agreement

This Agreement shall govern the operations of the Company and the rights and restrictions applicable to the Members and Assignees (see 1.4.2), to the extent permitted by law.


1.4.1		Member









		“Member” means, unless the context otherwise requires:


1.4.1.1		each Initial Member;





1.4.1.2		each Person admitted as a Member of the Company pursuant to Article 6 in place of and with all the rights of a Member and who is shown as a Member on the books and records of the Company in accordance with the terms of this Agreement (“Substituted Member”);





1.4.1.3		each Person admitted to the Company as a Member pursuant to Section 2.1.3 and who is shown as such on the books and records of the Company as a Unit Holder pursuant to the terms of this Agreement (“Additional Member”); and





1.4.1.4		for purposes of Article 7 (Tax Matters and Allocations), Article 4 (Distributions) and the Lender Ownership Limits in the Bylaws, and the inclusion or exclusion of such other sections of this Agreement as the Board of Managers may from time to time determine, each Assignee.


1.4.2		Assignee





		“Assignee” means a Person to whom one or more Membership Interests have been transferred in a manner permitted under this Agreement and who has executed and delivered a Transfer Application to the Company as required by this Agreement, but who has not been admitted as a Substituted Member. However, an existing Member who converts Units or Preferred Units shall remain a Member and shall not become an Assignee.





1.4.3		Pursuant to Section 18-101(7)(a) of the Act


1.4.3.1		all Initial Members and Additional Members shall be bound by the provisions of this Agreement;





1.4.3.2		each Person to whom Units or Preferred Units are Transferred by a Member, or successor in interest (“Transferee”) shall be bound by the provisions of this Agreement and shall be admitted as an Assignee upon full compliance with the transfer provisions of Article 6; and

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1.4.3.3		each such Assignee who is admitted as a Substituted Member shall have all the rights, duties and obligations of a Member.

1.5 Company Name

The name of the Company is “ JCM Partners, LLC .” The business of the Company shall be conducted under such name or such other names as the Board of Managers may later determine.

1.6 Authorized Persons

The Chief Executive Officer, and any other Person designated by the Board of Managers, shall be an “Authorized Person” within the meaning of the Act and is hereby authorized to execute, file and record all such certificates and documents, including amendments to the Certificate, and to do such other acts as may be appropriate to comply with all requirements for the formation, continuation, and operation of a limited liability company, the ownership of property, and the conduct of business under the laws of the State of Delaware and any other jurisdiction in which the Company may own property or conduct business.

1.7 Principal Place of Business

The principal place of business of the Company shall be located at 2151 Salvio Street, Suite 325, Concord, CA 94520, or at such other location determined by the Board of Managers. The principal business office, as well as the registered office and the registered agent, of the Company may be changed by the Board of Managers at any time in accordance with the then applicable provisions of the Act and any other applicable laws, as well as the terms and conditions of this Agreement.

1.8 Registered Office and Registered Agent

The street address of the initial Registered Office of the Company and the Company’s Registered Agent shall be as set forth in the Certificate.

1.9 Purposes

The purposes of the Company are:


1.9.1		to own, exchange, manage, sell and dispose of properties and to distribute the excess proceeds from such dispositions to the Members or to reinvest such excess proceeds funds in any type of investment;









1.9.2		to engage in any other activities relating to, and compatible with, the purposes set forth above; and









1.9.3		to take such other actions, or do such other things, as are necessary or appropriate as determined by the Board of Managers to carry out the provisions of this Agreement.

1.10 Powers

Subject to all of the provisions of this Agreement, the Company is authorized to do such things and engage in such activities as may be necessary, convenient or advisable with respect to the conduct of the business of the Company, and shall have all of the other powers and rights conferred upon limited liability companies formed pursuant to the Act. The Company’s powers shall be interpreted broadly.

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II. ARTICLE 2: CAPITALIZATION AND VOTING


2.1		Capitalization









Notwithstanding any other provisions of this Agreement, the Board of Managers may amend this Agreement to the extent required to allow the Board of Managers to exercise the powers granted to it by this section.









2.1.1		Membership Interests









		The ownership interest of a Member or Assignee in the Company is referred to as a “Membership Interest” and may consist of any combination of Units (see 2.1.1.1) or Preferred Units (see 2.1.1.2), and includes all rights and obligations specified in this Agreement and any Certificates of Designations.


			2.1.1.1			Unit









						“Unit” means a fractional part of all Membership Interests and having the rights and obligations specified with respect to the Units in this Agreement and in the Certificate of Designations creating such class of Units. A Unit shall not mean a Preferred Unit.









			2.1.1.2			Preferred Unit









						“Preferred Unit” means a fractional part of all Membership Interests and having the rights and obligations specified with respect to Preferred Units in this Agreement (or, in the Original Agreement, with respect to the Preferred Units described in Section 1.2.1) and in the Certificate of Designations creating such series of Preferred Units. A Preferred Unit shall not mean a Unit.









			2.2.2.3			Unit Holder









						“Unit Holder” means a Person who holds Units or Preferred Units and shall have the same meaning as the words Member, Substituted Member and Assignee when applicable.


2.1.2		Classes of Units and Preferred Units









		The Company shall have the authority to issue a total of three hundred million (300,000,000) Units and Preferred Units, as follows:


		2.1.2.1		Up to twenty-five million (25,000,000) may be designated by the Board of Managers as Preferred Units, and









		2.1.2.2		All remaining amounts not then designated as Preferred Units shall be authorized for issuance as Units.


2.1.3		Authority to Issue Units and Preferred Units


		2.1.3.1		Subject to the conditions in this section, the Board of Managers may issue authorized, but unissued Units or non-designated Preferred Units in one or more classes or series as the Board of Managers may determine from time to time for such consideration and under such circumstances as the Board of Managers may approve. In addition, the Board of Managers

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				is authorized to fix the number of any class (or series within a class) of Units or of any series of Preferred Units and to determine the designation of such classes or series, except that:


(a)		the issuance of Units to officers, directors, employees, or agents of the Company for compensatory or incentive-based performance shall be limited as set forth in Section 2.1.3.2, and




(b)		the Class 1 Units shall be designated as set forth in Section 2.1.5.


2.1.3.2		The Board of Managers may in its sole discretion and without the Consent of Members cause the Company to issue additional Units to officers, directors, employees, or agents of the Company for compensatory or incentive-based performance, including, without limitation, the issuance of Units pursuant to options, rights, warrants or appreciation rights. However, the aggregate number of Units issued for such purposes shall not exceed one percent (1%) of the number of Units issued to the Initial Members on the Effective Date, as such number may be appropriately adjusted to account for splits or reverse splits of Units.


2.1.4		Protective Provisions for the Preferred Units and Units





		Subject to the Protective Provisions for the Preferred Units (see 2.1.4.1) and the Protective Provisions for the Units (see 2.1.4.2), the Board of Managers has the power, in its sole discretion, to establish the rights, privileges, preferences and restrictions of any series of Preferred Units or class of Units as subordinate to, equal with or senior to (including, without limitation, provisions with respect to voting rights; convertibility; allocations of Profits and Losses (see 7.1.7); distributions of all kinds, including upon dissolution, liquidation, or winding-up of the Company; and redemption) any present or future series of Preferred Units or class of Units.


2.1.4.1		Protective Provisions for Preferred Units





		“Protective Provisions for Preferred Units” means, with respect to any series of Preferred Units that may come into existence, those explicit terms set forth in the applicable Certificate of Designations (see 2.1.6) as having a priority or other special treatment in relation to the Units or any other series of Preferred Units in existence or created in the future.










2.1.4.2		Protective Provisions for Units





		“Protective Provisions for Units” means with respect to any class of Units the following:


		(a)		Subject to the authority of the Tax Matters Partner (see 7.5) to make allocations necessary to comply with the Treasury Regulations (see 7.1.1), no class of Units may be created with a right to receive any special allocations within the meaning of Section 704(b) of the Internal Revenue Code of 1986, as amended (the “ Code ”) to the material detriment of any class of Units that may be in existence;









		(b)		No class of Units or series of Preferred Units may be created with a right to receive Mandatory Distributions prior to any other class of Units that may be in existence. “ Mandatory Distributions ” means

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				distributions required to be paid to one or more classes of Units or any series of Preferred Units before the payment of any Additional Distribution (see 4.1) as more fully described in the applicable Certificate of Designations for the class of Units or series of Preferred Units. Notwithstanding the prior sentence, classes of Units or series of Preferred Units may be created with a right to receive Mandatory Distributions in an amount less than, equal to or greater than another class of Units, provided that if there is a shortfall in the Company’s ability to pay such distributions when due to all classes of Units:


				(1)		all classes of Units entitled to receive Mandatory Distributions shall share in such shortfall on a pro rata basis, unless a class has received a lower priority in its Certificate of Designations; and









				(2)		no Preferred Units shall receive any distributions until such shortfall has been paid in full;


		(c)		The Board of Managers may declare Additional Distributions for Units on a class-by-class basis, provided that no class of Units may receive an Additional Distribution that is double the Additional Distribution declared for any other class of Units on a per Unit annualized basis. For example, if Classes 1, 2, 3 and 4 are outstanding, the Board of Managers may declare an Additional Distribution of $0.04 per unit payable to the Class 2 and Class 4 holders, provided that the Board of Managers also declares an Additional Distribution payable to the Class 1 and Class 3 holders of at least $0.02 per unit;









		(d)		No class of Units may be created with a right to receive a priority in payment upon the liquidation or dissolution of the Company over any other classes of Units that may be in existence;









		(e)		No class of Units may be created with a right to be redeemed earlier than June 30, 2007;









		(f)		The voting rights applicable to any class of Units in Sections 2.2.2 and 2.2.3; and









		(g)		The terms set forth in the Certificate of Designations (see 2.1.5 and 2.1.6) for any class of Units that specify a priority or special treatment with respect to any other class of Units or Preferred Units, provided that such priority or other special treatment is not prohibited by the Protective Provisions for the Units or Protective Provisions for the Preferred Units.


2.1.4.3		If there is a conflict between the Protective Provisions for the Units and the Protective Provisions for the Preferred Units, the conflict shall be resolved in the manner most favorable to the Units. If there is a conflict between classes of Units, the conflict shall be resolved in the manner most favorable to the earliest class of Units that was created. The Certificate of Designations creating any class of Units may specifically

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		waive one or more of the Protective Provisions for the benefit of that class (e.g. a class of Units could be created as non-voting).


2.1.5