EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ALLIANCE LAUNDRY SYSTEMS LLC
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THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement"), dated as of ________, 1998, is adopted, executed and agreed to,
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for good and valuable consideration, by the sole Member. Pursuant to Section
9.1 of that certain Limited Liability Company Agreement of Alliance Laundry
Systems LLC (the "LLC"), dated March 26, 1998 (the "Original Agreement"), the
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parties thereto desire to amend and restate the Original Agreement. Unless
otherwise defined herein, capitalized terms used herein are defined in Section
1.7 hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby amend and restate the Original Agreement as follows:
ARTICLE I
GENERAL PROVISIONS; CAPITAL CONTRIBUTIONS; DEFINITIONS
Section 1.1 Formation. The LLC was formed on March 26, 1998
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pursuant to and in accordance with the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. (S)18-101, et seq., as amended from time to
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time (the "Act"), and the provisions of this Agreement.
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Section 1.2 Limited Liability Company Agreement . The Member
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hereby executes this Agreement for the purpose of establishing the affairs of
the LLC and the conduct of its business in accordance with the provisions of the
Act. The Member hereby agrees that during the term of the LLC set forth in
Section 1.8, the rights and obligations of the Member with respect to the LLC
will be determined in accordance with the terms and conditions of this Agreement
and, except where the Act provides that such rights and obligations specified in
the Act shall apply "unless otherwise provided in a limited liability company
agreement" or words of similar effect, and such rights and obligations are set
forth in this Agreement, the Act; provided that, notwithstanding the foregoing,
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Section 18-210 of the Act shall not apply or be incorporated into this
Agreement.
Section 1.3 Name. The name of the LLC will be "Alliance Laundry
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Systems LLC," or such other name or names as the Board may from time to time
designate.
Section 1.4 Purpose. The LLC's purpose shall be to carry on any
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activities which may be lawfully be carried on by a limited liability company
organized pursuant to the Act.
Section 1.5 Registered Office; Registered Agent; Place of Business.
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The registered office of the LLC required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the LLC) as the Board may designate from time to time in the manner provided by
law. The registered agent of the LLC in the State of Delaware shall be the
initial registered agent named in the Certificate or such other person or
persons as the Board may designate from time to time in the manner provided by
law. The LLC will maintain an office and principal place of business at such
place or places inside or outside the State of Delaware as the Board may
designate from time to time.
Section 1.6 Capital Contributions.
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(a) The Member shall, promptly following the execution of this
Agreement, contribute to the capital of the LLC an amount as set forth on
Schedule I. The Board shall amend Schedule I from time to time to reflect
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any future capital contributions made by any Participant. Persons
hereafter admitted as Members of the LLC shall make such contributions of
cash (or promissory obligations), property or services to the LLC as shall
be determined by the Board and the Member making the contribution in their
sole discretion at the time of each such admission.
(b) No Participant shall have any responsibility to restore any
negative balance in his, her or its Capital Account or to contribute to or
in respect of liabilities or obligations of the LLC, whether arising in
tort, contract or otherwise, or return distributions made by the LLC except
as required by the Act or other applicable law. The failure of the LLC to
observe any formalities or requirements relating to the exercise of its
powers or management of its business or affairs under this Agreement or the
Act shall not be grounds for imposing personal liability on the
Participants for liabilities of the LLC.
(c) No interest shall be paid by the LLC on capital contributions
or on balances in Capital Accounts.
(d) A Participant shall not be entitled to withdraw any part of
its Capital Account or to receive any distributions from the LLC except as
provided in Articles III and V; nor shall a Participant be entitled to make
any capital contribution to the LLC other than as expressly provided
herein. Any Participant may, with the approval of the Board, make loans to
the LLC, and any loan by a Participant to the LLC shall not be considered
to be a capital contribution for any purpose and shall not result in an
increase in the amount of the Capital Account of such Participant.
Section 1.7 Definitions. For purposes of this Agreement:
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"Assignee" means a person or entity to whom an LLC interest has been
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transferred in a Transfer described in Section 4.4, unless and until such person
or entity becomes a Member with respect to such LLC interest.
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"Board" shall have the meaning assigned to it in Section 4.2 hereof.
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"Book Value" means, with respect to any LLC property, the LLC's
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adjusted basis for federal income tax purposes, except that the initial Book
Value of any property contributed to the LLC shall be the value of such property
on the date of such contribution, as agreed by the Board and the Member
contributing the property, and the Book Value of any LLC property shall be
adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in
connection with a distribution of such property) or (f) (in connection with a
revaluation of Capital Accounts).
"Capital Account" has the meaning set forth in Section 2.1.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time, and the regulations promulgated thereunder.
"Event of Withdrawal" means the death, expulsion or dissolution of a
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Member.
"Losses" for any period means all items of LLC loss, deduction and
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expense for such period determined according to Section 2.2.
"Majority in Interest" means the Member(s) holding a majority of the
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Percentage Interests of all Members.
"Member" means Alliance Laundry Holdings LLC and any Person admitted
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to the Company as a Substituted Member or Additional Member; but only so long as
such Person is shown on the Company's books and records as the owner of one or
more Units.
"Participant" means a Member, a Terminated Member or an Assignee.
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"Percentage Interest" means, in respect of each Participant, such
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Participant's interest in the income, gains, losses, deductions and expenses of
the LLC as set forth on Schedule I.
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"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Profits" for any period means all items of LLC income and gain for
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such period determined according to Section 2.2.
"Securityholders Agreement" shall mean that certain Securityholders
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Agreement, dated as of the date hereof, by and among Alliance Laundry Holdings
LLC and each of its Members, as amended or modified from time to time.
"Terminated Member" means a person who has ceased to be a Member
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pursuant to Section 4.7.
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Section 1.8 Term. The LLC shall continue until dissolved and
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terminated in accordance with Article V of this Agreement.
Section 1.9 No State-Law Partnership. The Participant(s) intend
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that the LLC not be a partnership (including, without limitation, a limited
partnership) or joint venture, and that no Participant be a partner or joint
venturer of any other Participant, for any purposes other than federal and, if
applicable, state tax purposes, and neither this Agreement nor any other
document entered into by the LLC or any Participant shall be construed to
suggest otherwise. The Participant(s) intend that the LLC shall be treated as a
partnership for federal and, if applicable, state income tax purposes, and that
each Participant and the LLC shall file all tax returns and shall otherwise take
all tax and financial reporting positions in a manner consistent with such
treatment.
ARTICLE II
CAPITAL ACCOUNTS
Section 2.1 Capital Accounts. A "Capital Account" will be
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established for each Participant on the books of the LLC and will be adjusted as
follows:
(a) such Participant's contributions to the capital of the LLC
will be credited to his, her or its Capital Account when received by the
LLC;
(b) at the end of each fiscal year of the LLC and upon
dissolution and winding up of the LLC pursuant to Article V, Profits for
such period allocated to such Participant pursuant to Section 3.2 shall be
credited and Losses for such period allocated to such Participant pursuant
to Section 3.2 shall be debited, as the case may be, to such Participant's
Capital Account;
(c) any amounts distributed to such Participant will be debited
against his, her or its Capital Account; and
(d) such Participant's Capital Account will otherwise be adjusted
in accordance with Treas. Reg. (S)1. 704-1(b)(2)(iv).
Section 2.2 Computation of Amounts. For purposes of computing the
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amount of any item of income, gain, loss, deduction or expense to be reflected
in Capital Accounts, the determination, recognition and classification of each
such item shall be the same as its deter mination, recognition and
classification for federal income tax purposes; provided that:
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(a) any income that is exempt from Federal income tax shall be
added to such taxable income or losses and any expenditures of the LLC
described in Section 705(a)(2)(B) of the Code or treated as Code Section
705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704-
1(b)(2)(iv)(i), shall be subtracted from such taxable income or losses;
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(b) if the Book Value of any LLC property is adjusted pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection with a
distribution of such property) or (f) (in connection with a revaluation of
Capital Accounts), the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such property; and
(c) if property that is reflected on the books of the LLC has a
Book Value that differs from the adjusted tax basis of such property,
depreciation, amortization and gain or loss with respect to such property
shall be determined by reference to such Book Value.
Section 2.3 Distribution in Kind. If securities are to be
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distributed in kind to the Participants pursuant to this Agreement, (i) such
securities shall first be written up or down pursuant to Section 2.2(b) to their
value (as determined pursuant to Article VI as of the date of such
distribution), (ii) the Capital Accounts of the Participant(s) shall be adjusted
immediately prior to the distribution as if such securities were sold at their
value (as so determined) and (iii) the value of such securities (as so
determined) received by each Participant shall be debited against his, her or
its respective Capital Account at the time of distribution.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 Distributions. Distributions of cash or other assets
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of the LLC shall be made at such times and in such amounts as the Board in its
sole discretion may determine, including without limitation, distributions to
the Member in amounts equal to an amount the Board may determine in good faith
from time to time, to represent the sum of the maximum marginal federal, state
and local income tax rates applicable to the Member or its partners, unitholders
or stockholders, if applicable. Unless the Board determines otherwise,
distributions shall be made to Participant's pro rata based on the Percentage
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Interests held by each Participant. Notwithstanding any provision to the
contrary contained in this Agreement, the LLC shall not make a distribution to
any Participant on account of his, her or its interest in the LLC if such
distribution would violate Section 18-607 of the Act or other applicable law.
Section 3.2 Allocation of Profits and Losses. Except as may be
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required by the Code, each item of income, gain, loss, deduction or expense to
the LLC shall be allocated among the Participant(s) in proportion to the
Percentage Interests held by each Participant.
ARTICLE IV
MANAGEMENT AND MEMBER RIGHTS
Section 4.1 Authority of the Board.
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(a) The Board (as defined below) shall have the sole right to
manage the business of the LLC and shall have all powers and rights
necessary, appropriate or advisable to effectuate and carry out the
purposes and business of the LLC, and, no Member, unless such Member is
also on the Board, shall have any authority to act for or bind the LLC but
shall have only the right to vote on or approve the actions herein
specified to be voted on or approved by the Member.
(b) When the taking of such action has been authorized by the
Board, any officer of the LLC or any other person specifically authorized
by the Board, may execute any contract or other agreement or document on
behalf of the LLC and may execute and file on behalf of the LLC with the
Secretary of State of the State of Delaware any certificates of amendment
to the LLC's certificate of formation, one or more restated certificates of
formation and certificates of merger or consolidation and, upon the
dissolution and completion of winding up of the LLC, at any time when there
are no Members, or as otherwise provided in the Act, a certificate of
cancellation canceling the LLC's certificate of formation.
(c) All decisions regarding the management and affairs of the LLC
shall be made by the Board.
Section 4.2 Composition of the Board; Actions; Meetings.
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(a) The Board of Managers of the LLC (the "Board") shall consist
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of five individuals, which number may be adjusted by the Member, and
subject to the Securityholders Agreement, the Member shall be entitled to
appoint all five individuals to the Board. Each member of the Board is
referred to herein as a "Representative". Subject to the immediately
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preceding sentences and the Securityholders Agreement, the Member may
remove (with or without cause) and, at its option and at any time
thereafter, replace, one or more of the Representatives at any time by
giving written notice pursuant to Section 9.4 of such removal and the name
of the replacement Representative(s) to the Board. A "Chairman" of the
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Board shall be elected by the Board for one or more one-year terms. The
initial Board shall consist of those persons set forth on Schedule II
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attached hereto, each such person will be decreed duly appointed to the
Board as of the date hereof. In the event that any Representative
designated hereunder by the Member ceases to serve as a member of the
Board, the resulting vacancy on the Board shall be filled by a
Representative appointed by the Member as provided by this Section 4.2(a).
(b) The Board may act (i) through meetings and written consents
pursuant to Section 4.2(d) and (ii) through committees or through any
Person to whom authority and duties have been delegated pursuant to Section
4.2(g).
(c) A Representative may vote at a meeting of the Board or any
committee thereof either in person or by proxy executed in writing by such
Representative. A telegram, telex, cablegram or similar transmission by the
Representative, or a photographic, photostatic, facsimile or similar
reproduction of a writing executed by the
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Representative shall (if stated thereon) be treated as a proxy executed in
writing for purposes of this Section 4.2(c). Proxies for use at any meeting
of the Board or any committee thereof or in connection with the taking of
any action by written consent shall be filed with the Board, before or at
the time of the meeting or execution of the written consent as the case may
be. All proxies shall be received and taken charge of and all ballots shall
be received and canvassed by the majority of the Board who shall decide all
questions concerning the qualification of voters, the validity of the
proxies and the acceptance or rejection of votes. No proxy shall be valid
after eleven months from the date of its execution unless otherwise
provided in the proxy. A proxy shall be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is coupled
with an interest. Should a proxy designate two or more Persons to act as
proxies, unless that instrument shall provide to the contrary, a majority
of such Persons present at any meeting at which their powers thereunder are
to be exercised shall have and may exercise all the powers of voting or
giving consents thereby conferred, or if only one be present, then such
powers may be exercised by that one; or, if an even number attend and a
majority do not agree on any particular issue, the LLC shall not be
required to recognize such proxy with respect to such issue if such proxy
does not specify how the votes that are the subject of such proxy are to be
voted with respect to such issue.
(d) Meetings of the Board and any committee thereof shall be held
at the principal office of the LLC or at such other place as may be
determined by the Board or such committee. Regular meetings of the Board
shall be held on such dates and at such times as shall be determined by the
Board. Special meetings of the Board or any committee may be called by any
one Representative (or, in the case of a special meeting of any committee
of the Board, by any member thereof) on at least twenty-four hours' prior
written notice to the other Representatives, which notice shall state the
purpose or purposes for which such meeting is being called. The actions
taken by the Board or any committee at any meeting (as opposed to by
written consent), however called and noticed, shall be as valid as though
taken at a meeting duly held after regular call and notice if (but not
until), either before, at or after the meeting, the Representative as to
whom it was improperly held signs a written waiver of notice or a consent
to the holding of such meeting or an approval of the minutes thereof. The
actions by the Board or any committee thereof may be taken by vote of the
Board or any committee at a meeting of the Representatives thereof or by
unanimous written consent (without a meeting and without a vote). A
meeting of the Board or any committee may be held by a conference telephone
or similar communications equipment by means of which all individuals
participating in the meeting can be heard.
(e) Each Representative shall have one vote on all matters
submitted to the Board or any committee thereof (whether the consideration
of such matter is taken at a meeting, by written consent or otherwise).
The affirmative vote (whether by proxy or otherwise) of members of the
Board holding a majority of the votes of all members of the Board shall be
the act of the Board. Except as otherwise provided by the Board when
establishing any committee, the affirmative vote (whether by proxy or
otherwise) of members of such committee holding a majority of the votes of
all members of such committee shall be the act of such committee.
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(f) The LLC shall pay the reasonable out-of-pocket expenses
incurred by each Representative in connection with attending the meetings
of the Board and any committee thereof (unless such expenses shall have
been paid or are required to be paid by any other Person). Except as
otherwise provided in the immediately preceding sentence or elsewhere in
this Agreement, the Representatives shall not be compensated for their
services as members of the Board.
(g) The Board may, from time to time, delegate to one of more
Persons (including any Representative or officer of the LLC and including
through the creation and establishment of one or more committees) such
authority and duties as the Board may deem advisable. In addition, the
Board may assign titles (including, without limitation, managing director,
chairman, chief executive officer, president, principal, vice president,
secretary, assistant secretary, treasurer, or assistant treasurer) and
delegate certain authority and duties to such persons. Any number of
titles may be held by the same Representative or other individual. The
salaries or other compensation, if any, of the officers and agents of the
LLC shall be fixed from time to time by the Board. Any delegation pursuant
to this Section 4.2(g) may be revoked at any time by the Board in its sole
discretion.
(h) Except as otherwise provided herein or in an agreement
entered into by such Person and the LLC, no Representative or any of such
Representative's Affiliates shall be liable to the LLC or to the Member for
any act or omission performed or omitted by such Representative in its
capacity as a member of the Board pursuant to authority granted to such
Person by this Agreement; provided that, except as otherwise provided
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herein, such limitation of liability shall not apply to the extent the act
or omission was attributable to such Person's gross negligence, willful
misconduct or knowing violation of law. The Board may exercise any of the
powers granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly or by or through its agents, and
no Representative or any of such Representative's Affiliates shall be
responsible for any misconduct or negligence on the part of any such agent
appointed by the Board (so long as such agent was selected in good faith
and with reasonable care). The Board shall be entitled to rely upon the
advice of legal counsel, independent public accountants and other experts,
including financial advisors, and any act of or failure to act by the Board
in good faith reliance on such advice shall in no event subject the Board
or any Representative thereof to liability to the LLC or the Member.
Section 4.3 Indemnification. Except as limited by law and subject
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to the provisions of this Section 4.3, each person and entity shall be entitled
to be indemnified and held harmless on an as incurred basis by the LLC (but only
after first making a claim for indemnification available from any other source
and only to the extent indemnification is not provided by that source) to the
fullest extent permitted under the Act (including indemnification for
negligence, gross negligence and breach of fiduciary duty to the extent so
authorized) as amended from time to time (but, in the case of any such
amendment, only to the extent that such amendment permits the LLC to provide
broader indemnification rights than such law permitted the LLC to provide prior
to such amendment) against all losses, liabilities and expenses, including
attorneys' fees and expenses, arising from claims, actions and proceedings in
which such person or entity may be involved, as a
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party or otherwise, by reason of his being or having been on the Board, a
Participant or officer of the LLC, or by reason of his serving at the request of
the LLC as a director, officer, manager, member, partner, employee or agent of
another limited liability company or of a corporation, partnership, joint
venture, trust or other enterprise, including a service with respect to an
employee benefit plan whether or not such person or entity continues to be such
at the time any such loss, liability or expense is paid or incurred. The rights
of indemnification provided in this Section 4.2 will be in addition to any
rights to which such person may otherwise be entitled by contract or as a matter
of law and shall extend to his successors and assigns. In particular, and
without limitation of the foregoing, such person or entity shall be entitled to
indemnification by the LLC against expenses (as incurred), including attorneys'
fees and expenses, incurred by such person or entity upon the delivery by such
person or entity to the LLC of a written undertaking (reasonably acceptable to
the Board). The LLC may, to the extent authorized from time to time by the
Board, grant rights to indemnification and to advancement of expenses to any
employee or agent of the LLC to the fullest extent of the provisions of this
Section 4.3 with respect to the indemnification and advancement of expenses of
the Board, Participants and officers of the LLC.
Section 4.4 Transfer of LLC Interest.
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(a) No Participant shall sell, assign, transfer or otherwise
dispose of, whether voluntarily or involuntarily or by operation of law (a
"Transfer"), all or any portion of his, her or its interest in the LLC
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without the prior written consent of the Board, which consent may be given
or withheld in its sole discretion. No Participant shall pledge or
otherwise encumber all or any portion of his, her or its interest in the
LLC, without the prior written consent of the Board, which consent may be
given or withheld in its sole and absolute discretion.
(b) Notwithstanding any other provision of this Agreement, any
Transfer by the Participants in contravention of any of the provisions of
this Section 4.4 shall be void and ineffective, and shall not bind, or be
recognized by, the LLC.
(c) If and to the extent any Transfer of an interest in the LLC
is permitted hereunder, this Agreement (including the Exhibits hereto)
shall be amended by the Board to reflect the Transfer of the interest in
the LLC to the transferee, to admit the transferee as a Member and to
reflect the elimination of the transferring Participant (or the reduction
of such Transferring Participant's interest in the LLC) and (if and to the
extent then required by the Act) a certificate of amendment to the
certificate reflecting such admission and elimination (or reduction) shall
be filed in accordance with the Act. The effectiveness of the Transfer of
an interest in the LLC permitted hereunder and the admission of any
substitute Member pursuant to this Section 4.4 shall be deemed effective
immediately prior to the Transfer of an interest in the LLC to such
Participant or if later on the first date that the Board receives evidence
of such Transfer, including the terms thereof. If the transferring
Participant has transferred all or any of its interest in the LLC pursuant
to this Section 4.4, then, immediately following such transfer or if later
on the first date that the Board receives evidence of such Transfer,
including the terms thereof, the transferring Participant shall cease to be
a Participant with respect to such interest.
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(d) Any person or entity who acquires in any manner whatsoever
any interest in the LLC, irrespective of whether such person or entity has
accepted and adopted in writing the terms and provisions of this Agreement,
shall be deemed by the acceptance of the benefits of the acquisition
thereof to have (i) made all of the capital contributions made by, (ii)
received all of the distributions received by, and (iii) agreed to be
subject to and bound by all the terms and conditions of this Agreement
that, any predecessor in such interest in the LLC made, received and was
subject to or bound.
Section 4.5 Members Voting Rights; Meetings.
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(a) No Member, unless such Member is also on the Board, shall
have any right, power or duty, including the right to approve or vote on
any matter, except as expressly required by the Act or other applicable law
or as expressly provided for hereunder.
(b) Unless a greater vote is required by the Act or as expressly
provided for hereunder, the affirmative vote of a Majority in Interest of
the Member(s) entitled to vote shall be required to approve any proposed
action.
(c) Meetings of the Member(s) for the transaction of such
business as may properly come before such Member(s) shall be held at such
place, on such date and at such time as the Board shall determine. Special
meetings of Member(s) for any proper purpose or purposes may be called at
any time by the Board or the Member(s) holding a Majority in Interest. The
LLC shall deliver oral or written notice (written notice may be delivered
by mail) stating the date, time, place and purposes of any meeting to each
Member entitled to vote at the meeting. Such notice shall be given not
less than four (4) and no more than sixty (60) days before the date of the
meeting.
(d) Any action required or permitted to be taken at an annual or
special meeting of the Member(s) may be taken without a meeting, without
prior notice, and without a vote, provided that written consents, setting
forth all proposed actions to be taken at such meeting, are signed by the
Member(s) holding at least the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
Member(s) entitled to vote on such action were present and voted. Every
written consent shall bear the date and signature of each Member who signs
such consent. Prompt notice of the taking of action without a meeting by
less than unanimous written consent shall be given to all Members who have
not consented in writing to such action.
Section 4.6 Additional Members. The Board shall have the sole
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right to admit additional Members upon such terms and conditions, at such time
or times as such Members shall in their sole discretion determine. In
connection with any such admission, the Board shall amend Schedule I to reflect
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the name, address and capital contribution of the additional Member and the new
Percentage Interests of all Participants.
Section 4.7 Termination of a Member. A person or entity will no
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longer be a Member for purposes of this Agreement upon an Event of Withdrawal.
The Terminated Member
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shall only be entitled to continue to receive allocation of Profits and Losses
and distributions of the LLC, including distributions pursuant to Article V
hereof, as and when paid by the LLC, to the same extent such Terminated Member
was entitled to such distributions as a Member. Except as provided in Section
9.2, such Terminated Member will not be entitled to participate in any LLC
decision or determination, and his, her or its successors and assigns will
acquire only his, her or its right to receive allocation of Profits and Losses
and to share in LLC distributions.
Section 4.8 Outside Businesses. Any Participant may engage in or
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possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the LLC,
and the LLC, the Participants shall have no rights by virtue of this Agreement
in and to such independent ventures or the income or gains derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the LLC, shall not be deemed wrongful or improper. No Participant shall be
obligated to present any particular investment opportunity to the LLC even if
such opportunity is of a character that, if presented to the LLC, could be taken
by the LLC, and any Participant shall have the right to take for his, her or its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment opportunity.
ARTICLE V
DURATION
Section 5.1 Duration. Subject to the provisions of Section 5.2 of
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this Agreement, the LLC shall be dissolved and its affairs wound up and
terminated upon the first to occur of the following:
(a) The determination of a Majority in Interest of the
Members;
(b) The occurrence of an Event of Withdrawal with respect
to the Member; or
(c) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Except as otherwise set forth in this Article V, the Member(s) intend for the
LLC to have perpetual existence.
Section 5.2 Continuation of the LLC. Notwithstanding the
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provisions of Section 5.1(c) hereof, the occurrence of an Event of Withdrawal
shall not dissolve the LLC if within ninety (90) days after the occurrence of
such Event of Withdrawal, the business of the LLC is continued by the agreement
of remaining Member(s) holding not less than a majority in interest (as defined
in Revenue Procedure 94.46 or any successor thereto) of the remaining Member(s).
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Section 5.3 Winding Up.
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Upon dissolution of the LLC, the LLC shall be liquidated in an orderly
manner. The Board shall be the liquidator pursuant to this Agreement and shall
proceed diligently to wind up the affairs of the LLC and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a LLC expense. The steps to be accomplished by the liquidator are
as follows:
(a) first, the liquidator shall satisfy all of the LLC's debts
and liabilities to creditors other than Participants (whether by payment or
the reasonable provision for payment thereof);
(b) second, the liquidator shall satisfy all of the LLC's debts
and liabilities to Participants (whether by payment or the reasonable
provision for payment thereof); and
(c) third, all remaining assets shall be distributed to the
Participants in accordance with Section 3.1.
Section 5.4 Termination. The LLC shall terminate when all of the
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assets of the LLC, after payment of or due provision for all debts, liabilities
and obligations of the LLC, shall have been distributed to the Participants in
the manner provided for in this Article V, and the certificate of formation of
the LLC shall have been canceled in the manner required by the Act.
ARTICLE VI
VALUATION
6.1 Determination. For purposes of this Agreement, the value of
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any property contributed by or distributed to any Participant shall be valued as
determined by the Board.
ARTICLE VII
CERTIFICATION OF MEMBERSHIP INTERESTS
Section 7.1 Membership Interests Every holder of a membership
--------------------
interest in the LLC shall be entitled to a certificate, signed by, or in the
name of the corporation by the Manager, or any officer of the LLC provided with
such authority pursuant to Section 4.1(b) above, certifying such Member's
percentage interest in the LLC. If such a certificate is countersigned (1) by a
transfer agent or an assistant transfer agent other than the LLC or its employee
or (2) by a registrar, other than the LLC or its employee, the signature of any
such Manager or officer may be facsimile. In case any Manager or officer who
has signed, or whose facsimile signature has been used, on any such certificate
shall cease to be such Manager or officer of the LLC whether because of death,
resignation or otherwise before such certificate has been delivered by the LLC,
such certificate may nevertheless be issued and delivered as though the person
or persons who signed such certificate or
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whose facsimile signature has been used thereon had not ceased to be such Manger
or officer of the LLC. All certificates for membership interests shall be
consecutively numbered or otherwise identified. The name of the person to whom
the membership interests thereby are issued, with the Percentage Interest and
date of issue, shall be entered on the books of the LLC. Membership interests of
the LLC shall only be transferred on the books of the LLC by the holder of
record thereof or by such holder's attorney duly authorized in writing, upon
surrender to the LLC of the certificate for such membership interests endorsed
by the appropriate person or persons, with such evidence of the authenticity of
such endorsement, transfer, authorization, and other matters at the LLC may
reasonably require. In that event, it shall be the duty of the LLC to issue a
new certificate to the person entitle thereto, cancel the old certificate, and
record the transaction on its books. The Manager may appoint a bank or trust
company organized under the laws of the United States or any state thereof to
act as its transfer agent or registrar, or both in connection with the transfer
of any class or series of membership interests of the LLC.
Section 7.2 Lost Certificates. The Manager may direct a new
-----------------
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the LLC alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen, or destroyed. When authorizing such issue
of a new certificate or certificates, the Manager may, in its sole discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate or certificates, or his legal
representative, to give the LLC a bond sufficient to indemnify the LLC against
any claim that may be made against the LLC on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
ARTICLE VIII
BOOKS OF ACCOUNT; MEETINGS
Section 8.1 Books. The Board will maintain on behalf of the LLC
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complete and accurate books of account of the LLC's affairs at the LLC's
principal office, which books will be open to inspection by any Member (or his
authorized representative) at any time during ordinary business hours and shall
be maintained in accordance with the Act.
Section 8.2 Fiscal Year. The fiscal year of the LLC shall end on
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December 31 of each year.
Section 8.3 Tax Allocation and Reports.
--------------------------
(a) The income, gains, losses, deductions and credits of the LLC
will be allocated, for federal, state and local income tax purposes, among
the Participants in accordance with the allocation of such income, gains,
losses, deductions and credits among the Participants for computing their
Capital Accounts, except as otherwise provided in the Code or other
applicable law.
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(b) In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, deduction and expense with
respect to any property contributed to the capital of the LLC shall, solely
for tax purposes, be allocated among the Participants so as to take account
of any variation between the adjusted basis of such property to the LLC for
federal income tax purposes and its fair market value at the time of
contribution.
(c) Within 75 days after the end of each fiscal year, the Tax
Matters Partner (as defined below) shall cause the LLC to furnish each
Participant with a copy of the LLC's tax return and form K-1 for such
fiscal year.
(d) The LLC hereby designates the Board to act as the "Tax
Matters Partner" (as defined in Section 6231(a)(7) of the Code) in
accordance with Sections 6221 through 6233 of the Code.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments. This Agreement may be amended or modified
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and any provision hereof may be waived only by the consent of a Majority in
Interest of the Members; provided, however, that any amendment or modification
--------
reducing disproportionately a Participant's Percentage Interest or other
interest in the profits or losses or in distributions or increasing such
person's or entity's capital contribution shall be effective only with that
person's or entity's consent.
Section 9.2 Successors. Except as otherwise provided herein, this
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Agreement will inure to the benefit of and be binding upon the Participants and
their respective legal representatives, heirs, successors and permitted assigns.
Section 9.3 Governing Law; Severability The Agreement will be
---------------------------
construed in accordance with the laws of the State of Delaware, and, to the
maximum extent possible, in such manner as to comply with an the terms and
conditions of the Act. If it is determined by a court of competent jurisdiction
that any provision of this Agreement is invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section 9.4 Notices. All notices, demands and other communications
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to be given and delivered under or by reason of provisions under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered, mailed by first class mail (postage prepaid and return receipt
requested), sent by telecopy or sent by reputable overnight courier service
(charges prepaid) to the addresses or telecopy numbers set forth in Schedule I
----------
hereto or to such other addresses or telecopy numbers as have been supplied in
writing to the LLC.
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Section 9.5 Complete Agreement; Headings, Counterparts. This
------------------------------------------
Agreement terminates and supersedes all other agreements concerning the subject
matter hereof previously entered into among any of the parties. Descriptive
headings are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement. 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, feminine or the neuter gender shall include the masculine, the
feminine and the neuter. This Agreement may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts together will constitute one agreement.
Section 9.6 Partition. Each Participant waives, until termination
---------
of the LLC, any and all rights that it may have to maintain an action for
partition of the LLC's property.
Section 9.7 No Strict Construction. The parties hereto have
----------------------
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * * * * * * *
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IN WITNESS WHEREOF, the Member has caused this Amended and Restated Limited
Liability Company Agreement to be signed as of the date first above written.
MEMBER:
ALLIANCE LAUNDRY HOLDINGS LLC
By: _______________________________________
Its: _______________________________________
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SCHEDULE I
Capital Contribution Percentage Interest
-------------------- --------------------
Member
- ------
Alliance Laundry Holdings LLC * 100%
* Alliance Laundry Holdings LLC's capital contribution to the capital of the
LLC consists of all of its right, title and interest in, to and under, all
of its assets and liabilities.
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SCHEDULE II
Initial Board of Managers
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Thomas F. L'Esperance
Edward W. Conard
Robert C. Gay
Stephen M. Zide
Stephen Sherrill
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