FIRST AMENDED AND RESTATED OPERATING AGREEMENT OF NAUTILUS POPLAR, LLC

Exhibit 10.1

FIRST AMENDED AND RESTATED

OPERATING AGREEMENT

OF

NAUTILUS POPLAR, LLC

THIS FIRST AMENDED AND RESTATED OPERATING AGREEMENT is made and entered into effective as of October 14, 2009 by and among NAUTILUS TECHINICAL GROUP, LLC, a Colorado limited liability company (“Nautilus”), WHITE BEAR, LLC, a Montana limited liability company “White Bear”), YEP I, SICAV-FIS, a Luxembourg entity (the “Fund”) and EASTERN RIDER, LLC, a Colorado limited liability company “Eastern”), (each a “Member” and collectively, the “Members”).

RECITALS:

A. The Members formed a limited liability company under the Montana Limited Liability Company Act (the “Act”) known as Nautilus Poplar, LLC (the “Company”) by causing Articles of Organization to be filed with the Montana Secretary of State on December 29, 2006. The Company was formed for the purpose of carrying on certain businesses and activities permitted for limited liability companies by the laws of the State of Montana.

B. White Bear, Nautilus and Eastern executed an Operating Agreement for the Company as of January 1, 2007, as amended by six amendments (“Original Operating Agreement”).

C. Prior to the date of this Agreement, White Bear assigned a portion of its Membership Interest in the Company to the Fund and the Fund was admitted as a Member of the Company.

D. The Members now desire to amend and restate the Original Operating Agreement in the form of this Amended and Restated Operating Agreement to fully set forth their agreements and understandings regarding the Company and to own and operate the Company in accordance with the terms of this Agreement.

IN CONSIDERATION of the foregoing Recitals and the mutual covenants and agreements contained herein, the parties agree as follows:

ARTICLE 1

DEFINITIONS

The following terms used in this Agreement shall have the following meanings:

1.1 “ Act ” means the Montana Limited Liability Company Act, as amended from time to time.

1.2 “ Affiliate ” means, with respect to any Person: (a) any Person directly or indirectly controlling, controlled by or under common control with such Person; (b) any Person owning or controlling fifty percent or more of the outstanding voting interests of such Person; (c) any officer, director, general partner or manager of such Person; or (d) any Person who is an officer, director, general partner, manager, trustee or holder of fifty percent or more of the voting interests of any Person described in clauses (a), (b) or (c).

1.3 “ Agreement ” means this Amended and Restated Operating Agreement of the Company, as it may be amended from time to time.

1.4 “ Approval” of or “Approved by the Members ” means except as otherwise specifically set forth herein, the approval of the holders of more than fifty percent of the Membership Interests.

1.5 “ Articles of Organization ” means the Articles of Organization of the Company, as filed with the Secretary of State of the State of C Montana, as the same may be amended from time to time.

1.6 “ Bankruptcy ” means any case, proceeding or other action: (a) seeking reorganization or rearrangement (under any Chapter of Title 11 of the United States Code or like provision of any other or succeeding law); (b) where insolvency is determined by court proceedings; (c) concerning any other reorganization, arrangement, adjustment, liquidation, dissolution or composition of a debtor or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; or (d) commenced by the filing of a petition to accomplish any of the foregoing.

1.7 “ Capital Account ” means, with respect to any Member, the Capital Account maintained for such Member in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited such Member’s Capital Contributions and such Member’s distributive share of income and gain.

(b) From each Member’s Capital Account there shall be debited the amount of cash and the net fair market value of any property distributed to such Member pursuant to any provision of this Agreement and such Member’s distributive share of Losses.

(c) If any Membership Interest in the Company 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 transferred Membership Interest.

This definition and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations in order to give substantial economic effect to all transactions, and shall be interpreted and applied in a manner consistent with such Treasury Regulations. If the Manager shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitations, debits or credits relating to liabilities that are secured by contributed or distributed property or that are assumed by the Company or the Members), are computed in order to comply with Treasury Regulations, the Manager may make such modification, provided that it is not likely to have a material effect on the amounts distributable to any Interest Owner upon the dissolution of the Company.

 

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1.8 “ Capital Contributions ” means, with respect to any Member, the amount of money and the initial net fair market value of any property (other than money) contributed or required to be contributed to the Company with respect to the Membership Interests held by such Member. The value of any property other than money that is contributed to the Company shall be agreed upon in writing by the contributing Member and the Manager on behalf of the Company; provided, however, that if the Manager is the contributing Member or an Affiliate of the contributing Member, then the value shall be determined by the holders of more than fifty percent of the Membership Interests of the remaining Members. The Capital Account of the contributing Member will be credited with the amount of the contribution, net of liabilities encumbering the property at the time of the contribution.

1.9 “ Code ” means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).

1.10 “ Commencement Date ” means the date the Articles of Organization were filed with the Secretary of State of the State of Montana.

1.11 “ Company ” means Nautilus Poplar, LLC, a limited liability company formed under the Act.

1.12 “ Default Interest Rate ” means an annual interest rate equal to five percent over the Prime Rate or 18 percent per annum whichever is greater.

1.13 “ Economic Interest ” means the share of Profits or other compensation by way of income and return of contributions to which an Economic Interest Owner is entitled to receive pursuant to this Agreement and the Act, but shall not include any right to participate in the management of the business and affairs of the Company, including the right to vote on, consent to or otherwise participate in any decision of the Members.

1.14 “ Economic Interest Owner ” means the owner of an Economic Interest who is not a Member.

1.15 “ Entity ” means any general or limited partnership, corporation, trust, business trust, limited liability company, joint venture, cooperative, association or any other entity.

1.16 “ Interest ” means an Economic Interest or a Membership Interest.

1.17 “ Interest Owner ” means the owner of an Economic Interest or a Membership Interest.

1.18 “ Manager ” means any Person who is Approved by the Members to manage the business and affairs of the Company on the terms provided in this Agreement and has not ceased to be a Manager pursuant to the terms of this Agreement.

 

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1.19 “ Member ” means each of the parties who executes a counterpart of this Agreement as a Member and each of the parties who hereafter becomes a Member. If a Person is a Member immediately prior to the purchase or acquisition by such Person of an Economic Interest, such Person shall have all the rights of a Member with respect to such acquired Membership Interest or Economic Interest, as the case may be.

1.20 “ Membership Interest ” means a Member’s entire interest in the Company, including the Economic Interest of a Member and such other rights and privileges that the Member may enjoy by virtue of being a Member, as granted pursuant to the Articles of Organization, this Agreement or the Act. The Membership Interests of each of the Members shall be stated as a percentage as provided in Section 5.1 of this Agreement.

1.21 “ Net Cash Flow ” means the gross receipts of the Company, less (i) expenses of earning such receipts, other than depreciation and other non-cash expenses, (ii) capital expenditures, (iii) payments with respect to any Company indebtedness in accordance with established payment schedules and loan agreements, (iv) payment of Company accounts payable or expenses, and (v) any reasonable Reserves established by the Manager.

1.22 “ Permitted Businesses ” shall have the meaning set forth in Section 2.3 of this Agreement.

1.23 “ Person ” shall have the meaning assigned to it in the Act, and shall include any natural person and any Entity.

1.24 “ Prime Rate ” means an annual rate of interest announced as the “prime rate” by the bank at which the Company from time to time maintains its operating account (adjusted as of the first day of each calendar quarter) and if such rate is no longer announced, such other comparable rate as the Manager may reasonably select; provided, however, in no event shall the Prime Rate or any rate of interest to be charged under this Agreement which is based upon the Prime Rate (including, but not limited to, the Default Interest Rate) exceed the maximum rate of interest permitted by law.

1.25 “ Profits ” and “ Losses ” means, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with Code Section 703(a), including all items required to be separately stated under Code Section 702(a), and specifically including any tax exempt income or gain and any gain or loss resulting from any revaluation of assets as permitted by the Treasury Regulations, or any gain or loss with respect to property whose book value differs from its adjusted tax basis.

1.26 “ Reserves ” means, with respect to any fiscal period, funds set aside or amounts allocated during such period to Reserves which shall be maintained in amounts deemed sufficient by the Manager for working capital or other costs or expenses incident to the ownership or operation of the Company’s business.

1.27 “ Sales ” means the sale or other disposition of an asset of the Company (other than in the ordinary course of business).

 

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1.28 “ Securities Laws ” means all applicable securities laws of the United States or of any State.

1.29 “ Sharing Ratio ” means (a) with the respect to the Members, the ratio of the percentage Membership Interest held by a Member to the aggregate percentage Membership Interests outstanding held by all of the Members, (b) with respect to the Economic Interest Owners, the ratio of the percentage Economic Interest held by an Economic Interest Owner to the aggregate percentage Economic Interest outstanding held by all of the Economic Interest Owners; and (c) with respect to all Interest Owners, the ratio of the percentage Interest held by an Interest Owner to the aggregate percentage of Interests held by all of the Interest Owners.

1.30 “ Substituted Member ” means any Person admitted to the Company as a Member in connection with the acquisition of another Member’s Membership Interest pursuant to the terms of this Agreement.

1.31 “ Transfer ” means any voluntary or involuntary transfer, sale, pledge, hypothecation, encumbrance or other disposition or to voluntarily or involuntarily transfer, sell, pledge, hypothecate, encumber or otherwise dispose of.

1.32 “ Treasury Regulations ” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

ARTICLE 2

FORMATION AND ORGANIZATION

2.1 Formation and Name of the Company . The parties hereby ratify and approve the Articles of Organization forming the Company filed with the Montana Secretary of State on the Commencement Date, and agree that the Company shall be organized and operated pursuant to and in accordance with the Articles of Organization, the provisions of this Agreement and the Act.

2.2 Name . The business of the Company shall be operated under the name Nautilus Poplar, LLC, or such other trade name or names as may be selected by the Manager, subject to applicable law.

2.3 Permitted Businesses . The business of the Company shall be:

(a) to acquire, own or operate, and from time to time dispose of, oil gas, or real estate interests of any nature including but not limited to the oil and gas properties described on Schedule B to this Agreement, and to explore for, develop and produce oil or natural gas, and to conduct operations incident thereto;

(b) to form, own and operate one or more limited liability companies or other entities to carry out the businesses of the Company;

 

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(c) to accomplish any lawful business whatsoever, or which shall at any time appear conducive to or expedient for the protection or benefit of the company and its assets;

(d) to exercise all other powers necessary to or reasonably connected with the Company’s businesses which may be legally exercised by limited liability companies under the Act; and

(e) to engage in all activities necessary, customary, convenient or incident to any of the foregoing.

2.4 Principal Place of Business . The principal place of business of the Company shall be located at 700 East 9 ^th Avenue, Second Floor, Denver, CO 80203. The Manager may change the principal place of the Company to any other place upon written notice to the Members.

2.5 Term . The term of the Company commenced on the Commencement Date, and shall continue until terminated as provided in this Agreement or by operation law.

ARTICLE 3

MEMBERS AND CONTRIBUTIONS

3.1 Members . The names and mailing addresses of the Members of the Company are as follows:

Nautilus Technical Group, LLC 700

700 East 9 ^th Avenue, Second Floor

Denver, CO 80203

White Bear, LLC

700 East 9 ^th Avenue, Second Floor

Denver, CO 80203

Eastern Rider, LLC

700 East 9 ^th Avenue, Second Floor

Denver, CO 80203

YEPI, SICAV-FIS

c/o YEP Management Sarl

7 rue Thomas Ediscon

L-1445 Strassen

Grand Duchy of Luxembourg

A Member may change its address for all purposes under this Agreement by giving written notice of such change to the Company and to each of the Manager of the Company.

 

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3.2 Initial Capital Contributions . The Members have made their initial Capital Contributions to the capital of the Company as required by the Original Operating Agreement. The Members Capital Accounts as of the date of this Agreement are set forth on Schedule A of this Agreement.

3.3 Additional Capital . Upon the written request of the Manager and with the Approval of the Members, the Members or the Economic Interest Owners may from time to time be required to collectively make additional contributions of cash, (the “Additional Contributions”). The Members or Economic Interest Owners shall pay the Additional Contributions on a pro rata basis in accordance with their Membership Interests or Economic Interests. The payment of the Additional Contributions amounts by the Members or Economic Interest Owners shall be due 15 business days after the date that the written request is sent by the Manager to the Members or Economic Interest Owners. In the event that a Member or Economic Interest Owner fails to pay its share of an Additional Contribution (the “Defaulting Owner”), another Member or Economic Interest Owner may elect to pay such Defaulting Owner’s share of the Additional Contribution (the “Curing Owner”). If more than one Member of the Company or Economic Interest Owner elects to pay such Defaulting Owner’s share of the Additional Contribution, such parties shall participate therein in proportion to their Membership Interests or Economic Interests. Such Curing Owner or Owners shall be entitled to receive from the Company out of distributions that would otherwise be paid to the Defaulting Owner from the oil or gas, property or properties for which such Additional Contribution is utilized, or if not utilized for a specific oil and gas property or properties, from all distributions by the Company that would otherwise be paid to the Defaulting Owner, an amount equal to three times the amount that the Curing Owners paid on behalf of the Defaulting Owner (the “Compensation Amount”). Once the Compensation Amount has been paid in full to the Curing Owners, the Defaulting Owner shall be entitled to receive distributions and other amounts payable to the Defaulting Owner pursuant to this Agreement.

3.4 Loans by Members . A Member shall be permitted to make loans to the Company for use in the Permitted Businesses upon such terms as agreed to by the Manager and such Member and as approved by a majority in the Membership Interest of the disinterested Members, provided, however, that in the event that all Members are offered the opportunity to make loans to the Company on the same terms, pro rata in accordance with their Membership Interests, the Manager shall be authorized to borrow from the Members upon such terms as the Manager shall, in its discretion, determine from time to time.

3.5 Allocations of Profits and Losses and Tax Items .

(a) Allocations . Except as otherwise provided in this Agreement, for each fiscal year, Profits and Losses of the Company shall be allocated among the Members in proportion to their respective Sharing Ratios.

(b) Definitions and Special Rules . For purposes of this Agreement, allocations of income, gain, loss, deduction or credit (or cost of purchased assets or other amount on which a tax credit is based) of the Company, shall include each component if such item to be allocated, as determined for purposes of the Company’s income tax reports and returns. Notwithstanding any other provision of this Agreement, accounting for the Company’s capital and income, gain, loss, deductions, credits and distributions shall comply with Section 704 of the Code and the Treasury Regulations thereunder. Any Company income, gain, loss, deduction or credit (or cost of

 

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purchased assets or other amount on which a tax credit is based), as initially determined and allocated for any year, shall be redetermined and reallocated if necessary to correct any errors, or to reflect the result of any tax audit, or to take account of other pertinent factors.

(c) Contributed Property . For income tax purposes, and not for the purposes of Capital Account maintenance, income, gain, loss and deduction with respect to property contributed to the Company by a Member shall be allocated among the Members as required by Section 704(c) of the Code and Treasury Regulations thereunder.

ARTICLE 4

CAPITAL ACCOUNTS

4.1 Separate Capital Accounts . A separate Capital Account will be maintained for each Member and Economic Interest Owner. Capital Accounts shall be maintained in a manner corresponding to the capital of the Members and Economic Interest Owners as reported by the Company for federal income purposes, and in accordance with the requirements of Treasury Regulation 1.704-1(b)(2)(iv).

4.2 Transfer of Interest . In the event of a permitted sale or exchange of an Interest in the Company, the Capital Account of the transferor shall become the Capital Account of the transferee to the extent it relates to the transferee Interest in accordance with Section 1.7041 (b)(2)(iv) of the Treasury Regulations.

4.3 Compliance with Code . The manner in which Capital Accounts are to be maintained pursuant to this Agreement is intended to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder. If in the opinion of the Company’s accountants the manner in which the Capital Accounts are to be maintained pursuant to this Article should be modified in order to comply with Section 704(b) of the Code and the Treasury Regulations, then notwithstanding anything to the contrary contained in this Article, the method in which Capital Accounts are maintained shall be so modified; provided, however, that any change in the manner of maintaining Capital Accounts shall not materially alter the economic agreement between or among the Members.

4.4 Deficit Balance . Except as otherwise required in the Act (and subject to the terms of this Article), no Member or Economic Interest Owner shall have any liability to restore any portion of a deficit balance in such Member’s or Economic Interest Owners Capital Account.

4.5 Qualified Income Offset . Any Member or Economic Interest Owner who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations section 1.704-1 (b)(2)(ii)(d)(4), (5) or (6) will be allocated items of income and gain (consisting of a pro rata portion of each item of Company income including gross income, and gain for such year) in an amount and manner sufficient to eliminate any resulting deficit balance as quickly as possible.

 

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4.6 Non-Recourse Debt . Notwithstanding any other provision of this Agreement, if there is a net decrease in the Company’s minimum gain as defined in Treasury Regulations §1.704-2(d) during a taxable year of the Company, then, the Capital Accounts of each Member shall be allocated items of income (including gross income) and gain for such year (and if necessary for subsequent years) equal to that Member’s share of the net decrease in Company minimum gain. This subsection is intended to comply with the minimum gain charge-back requirement of §1.704-2 of the Treasury Regulations and shall be interpreted consistently therewith. If in any taxable year that the Company has a net decrease in the Company’s minimum gain, if the minimum gain charge-back requirement would cause a distortion in the economic arrangement among the Members and it is not expected that the Company will have sufficient other income to correct that distortion, the Members may in their discretion seek to have the Internal Revenue Service waive the minimum gain charge-back requirement in accordance with Treasury Regulation §1.704-2(f)(4).

4.7 Limitation on Return of Capital . Each Member or Economic Interest Owner shall be entitled to recover the amount of such Member’s or Economic Interest Owner’s Capital Account only at the time or times provided for herein and solely from the assets of the Company. The Capital Accounts of the Members or Economic Interest Owners shall not bear interest.

ARTICLE 5

OWNERSHIP AND DISTRIBUTIONS

5.1 Membership Interests . The Membership Interests of the Members are as follows:

 

5.2 Distributions in General . Except for distributions made upon liquidation of the Company, the Company shall make distributions to its Members at such times and in such amounts as the Manager shall determine. Distributions shall be made to Members in proportion to their respective Sharing Interests as of the date of the distribution. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Members from the Company shall be treated as amounts distributed to the relevant Member pursuant to this Section. The Manager shall utilize its good faith best efforts each year to make distributions which are not less than the Members’ and Economic Interests Owners’ income tax liabilities with respect to the taxable income of the Company for such year.

5.3 Limitation on Distributions . No Member has any right to demand or receive distributions in any form other than cash. The Manager may, in its discretion, make distributions in cash or in kind, or partially in each, provided that no Member shall be compelled to accept a distribution of any asset in kind to the extent that the percentage of the asset distributed to such Member exceeds the Percentage Interest of such Member.

 

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5.4 Net Cash Flow . In determining whether to make a distribution and the amount of any non-liquidating distribution, the Manager may consider, among other relevant factors, the Company’s Net Cash Flow. The determination of Net Cash Flow shall be made in accordance with the same accounting principles as are used in keeping with the Company’s books and preparing its tax returns.

5.5 Restriction Upon Distributions . No distributions shall be declared and paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company, excluding liabilities to Members and Economic Interest Owners on account of their Capital Accounts.

ARTICLE 6

MEMBERS

6.1 Limitation of Liability . Each Member’s liability shall be limited as set forth in this Agreement, the Act and other applicable law.

6.2 Company Debt Liability . Except as may be separately agreed, a Member will not be personally liable for any debts or losses of the Company beyond its respective Capital Contributions and any obligation of the Member under this Agreement to make Capital Contributions, except as provided in Section 3.4 herein or as otherwise required by law.

6.3 Company Books . The Manager shall maintain and preserve, during the term of the Company, and for five years thereafter, all accounts, books and other relevant Company documents. Upon reasonable request, each Member and Economic Interest Owner shall have the right during ordinary business hours, to inspect and copy such Company documents at the expense of the requesting Member and Economic Interest Owner.

6.4 Priority and Return of Capital . Except as may be expressly provided in this Agreement, no Member shall have priority over any other Member, either as to the return of Capital Contributions or as to Net Profits, Net Losses or any distributions; provided that this Section shall not apply to loans (as distinguished from Capital Contributions) which a Member may make to the Company.

6.5 Liability of a Member to the Company . A Member who receives any distribution is liable to the Company only to the extent now or hereafter provided by the Act.

ARTICLE 7

MEETINGS

7.1 Annual Meeting . An annual meeting of the Members may be held at such time and date as may be fixed by the Manager. The annual meeting of the Members shall be held for the purpose of electing or reelecting the Manager and for the transaction of such other business as may come before the meeting.

 

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7.2 Failure to Hold Annual Meeting . If any election of the Manager shall not be held on the day designated by the Manager for any annual meeting of the Members or at an adjournment thereof, then upon the call for such an election by any Member, the Manager shall cause the annual meeting or election to be held at a special meeting of the Members as soon thereafter as may be convenient. Failure to hold the annual meeting or election at the designated time shall not work a forfeiture or dissolution of the Company.

7.3 Special Meeting . Special meetings of the Members may be called by the Manager or by Members owning not less than one-tenth of the votes entitled to vote at the meeting.

7.4 Place of Meeting . The Manager may designate any place, either within or outside Colorado, as the place for any annual meeting or for any special meeting of Members. If no designation is made, or if a special meeting shall be called otherwise than by a Manager, the place of meeting shall be the principal place of business of the Company in Colorado.

7.5 Notice of Meeting . Written notice stating the place, day and hour of the meeting, and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the Manager or the Members calling the meeting, to each Member of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as to any Member when deposited in the United States mail, addressed to the Member at his address as it appears on the membership records of the Company, with postage thereon prepaid, but if three successive letters mailed to the last known address of any Member are returned as undeliverable, no further notices to such Member shall be necessary until another address for such Member is made known to the Company.

7.6 Quorum . The presence in person or by proxy of Members holding collectively more than fifty percent of the Membership Interests entitled to vote shall constitute a quorum of Members at any meeting of Members. In the absence of a quorum at any such meeting, a majority of the Membership Interests present at the meeting may adjourn the meeting for a period not to exceed sixty days at anyone adjournment. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum.

7.7 Number of Votes . Except as may be set forth in the Act, each Member shall be entitled to cast one vote for each of one percent Membership Interest in the Company owned by such Member. Upon the Transfer of an Economic Interest separate and apart from a Membership Interest, all voting rights that were previously appurtenant to such Interest shall terminate.

7.8 Manner of Acting . If a quorum is present, the affirmative vote of Members holding more then fifty percent of the Membership Interests shall be the Approval of the Members, unless the vote of a greater or lesser proportion, number or voting per capita or by classes is required by the Act.

 

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7.9 Consultation . Any Member which alone or together with its Affiliates holds more than fifty percent of the Membership Interests shall make a reasonable effort to consult with the other Members prior to approving any action which has a material effect on the Company and its businesses.

7.10 Proxies . At all meetings of Members, a Member may vote by proxy executed in writing by the Member or the Member’s duly authorized attorney-in-fact. Such proxy shall be filed with any Manager before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.

7.11 Informal Action by Members . Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting if the action is evidenced by one or more written consents, setting forth the action so taken, signed by Members holding an aggregate amount of Membership Interests sufficient to have approved such action at a meeting of Members. Such consent shall have the same force and effect as a vote of the Members, and may be stated as such in any document. Action taken under this Section shall be effective when all Members have signed the consent, unless the consent specifies a different effective date.

7.12 Waiver of Notice . When any notice is required to be given to any Member, waiver thereof in writing signed by the party entitled to such notice, whether before, at or after the time of the meeting stated in the notice, shall be equivalent to the giving of such notice.

7.13 Voting by Entities and Successors .

(a) Corporations . Membership Interests standing in the name of a corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or in the absence of such provision, as the board of directors of such corporation may determine.

(b) Trusts . Membership Interests owned in the name of a trust may be voted by any trustee of the trust, and Membership Interests in the name of a trustee may be voted by such trustee or any successor.

(c) Limited Liability Companies and Partnerships . Membership Interests standing in the name of a limited liability company or a partnership may be voted by such manager or general partner, respectively, or agent as the operating agreement or partnership agreement may prescribe, or in the absence of such provision, as the Manager or partners, as the case may be determine.

(d) Joint Members . Membership Interests held jointly by more than one Person, whether held as joint tenants, tenants in common or otherwise shall be voted by anyone of the joint Members and, if there is a disagreement between the joint Members, according to such instructions as previously given to the Company, provided such instructions are in writing and signed by all of the joint Members. Absent such instructions, in the event of a disagreement, the joint Members will vote the jointly held Membership Interests proportionately.

(e) Successors . Except as provided in paragraph (c) above, no successor to any Member’s Membership Interest, and no receiver or pledge or person holding a security interest in or lien on a Membership Interest shall have any right or standing to vote such interests, unless admitted as a Member of the Company.

 

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ARTICLE 8

MANAGER

8.1 General Powers . The business and affairs of the Company shall be managed by its Manager. Subject only to the limitations provided in the Act, the Company’s Articles of Organization or this Agreement, and subject to the right of the holders of more than fifty percent of the Membership Interests to disapprove any act, the Manager shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business. If there is more than one Manager, the Managers shall act by a majority of the Managers then serving.

8.2 Authority of Manager . Without limiting the generality of Section 8.1, the Manager shall have power and authority, on behalf of the Company.

(a) To purchase liability and other insurance to protect the Company’s property and business;

(b) To hold and own any real and personal properties of the Company only in the name of the Company;

(c) To invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper or other investments;

(d) With the Approval of the Members, to sell or otherwise dispose of all or substantially all of the assets of the Company as part of a