EXHIBIT 3.2 (al)
FIRST AMENDMENT TO THE OPERATING DECLARATION OF
ASHTON WOODS TRANSPORTATION, LLC
THIS FIRST AMENDMENT TO THE OPERATING DECLARATION OF ASHTON WOODS
TRANSPORTATION, LLC ("Amendment") is made and entered into as of___day of
December, 2005, by ASHTON WOODS USA, L.L.C., a Nevada limited liability company
(hereinafter referred to as "Ashton Woods USA").
WITNESSETH
WHEREAS, Ashton Woods USA executed that certain Operating Declaration for
Ashton Woods Transportation, LLC (the "Company") on________, 2005 (hereinafter
as supplemented and/or amended from time to time, the "Declaration");
WHEREAS, Ashton Woods USA is the sole member of the Company ("Member") and
desires to amend the Declaration as more particularly set forth herein;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, Ashton Woods USA, intending to be legally bound,
amends the Declaration as follows:
1. Definitions. Unless otherwise set forth herein, the terms used herein
shall have the meanings ascribed to such terms in the Declaration.
2. Amendment to Operating Declaration. The Member hereby amends the
Operating Declaration by deleting Article 6 of the Declaration in its entirety
and replacing it with a new Article 6 to read as follows:
6. MANAGEMENT.
6.01 MANAGEMENT BY MANAGERS.
(a) Except for situations in which the approval of the Member is
required by this Operating Declaration or by nonwaivable provisions of
applicable law, and subject to the provisions of Section 6.02, (i) the
powers of the Company shall be exercised by or under the authority of, and
the business and affairs of the Company shall be managed under the
direction of, one or more Managers; and (ii) the Managers may make all
decisions and take all actions for the Company not otherwise provided for
in this Operating Declaration, including, without limitation, the
following:
(i) entering into, making, and performing contracts, agreements,
and other undertakings binding the Company that may be necessary,
appropriate, or advisable in furtherance of the purposes of the Company and
making all decisions and waivers thereunder;
(ii) opening and maintaining bank and investment accounts and
arrangements, drawing checks and other orders for the payment of money, and
designating individuals with authority to sign or give instructions with
respect to those accounts and arrangements;
(iii) maintaining the assets of the Company in good order;
(iv) collecting sums due the Company;
(v) to the extent that funds of the Company are available
therefor, paying debts and obligations of the Company;
(vi) acquiring, utilizing for Company purposes, and disposing of
any asset of the Company;
(vii) borrowing money or otherwise committing the credit of the
Company for Company activities and voluntary prepayments or extensions of
debt;
(viii) selecting, removing, and changing the authority and
responsibility of lawyers, accountants, and other advisers and consultants;
(ix) obtaining insurance for the Company;
(x) establishing a seal for the Company;
(xi) selling, leasing, exchanging or otherwise disposing of
(including by way of a pledge, mortgage, deed of trust or trust indenture)
all or any portion of the Company's property and assets (with or without
good will); and
(xii) being a party to a merger of the type described in Section
14-11-903 of the Act.
(b) Notwithstanding the provisions of Section 6.01(a), the Managers
may not cause the Company to do any of the following without complying with the
applicable requirements set forth below:
(i) Dissolve the Company under paragraph (3) of the Internal
Revenue Code ("Code") Section 14-11-602, except upon the written consent of
the Member;
(ii) Enter into an agreement of merger of the Company of the type
described in subsection (a) of Code Section 14-11-903, except upon the
written consent of the Member;
(iii) Authorize the sale, exchange, lease or other transfer of
all or substantially all of the assets of the Company, except upon the
written consent of the Member. For the purposes of this paragraph, assets
shall be deemed to be less than all or substantially all of the Company's
assets if the value of the assets does not
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exceed two-thirds of the value of all of the assets of the Company and the
revenues represented or produced by such assets do not exceed two-thirds of
the total revenues of the Company; provided, however, that this paragraph
shall not create any inference that the sale, exchange, lease or other
transfer of assets exceeding the amounts described in this paragraph is the
sale of all or substantially all of the assets of the Company;
(iv) Admit any new member except as provided in the Act;
(v) Amend the articles of organization under the Act or this
Operating Declaration, without the written consent of the Member;
(vi) Take any action under subsection (b) of Act Section
14-11-402 to reduce or eliminate an obligation to make a contribution to
the capital of the Company;
(vii) Take action to continue the Company under paragraph (4) of
Act Section 14-11-602, except upon the written consent of the Member.
6.02 ACTIONS BY MANAGERS; COMMITTEES; DELEGATION OF AUTHORITY AND
DUTIES.
(a) In managing the business and affairs of the Company and exercising
its powers, the Managers shall act (i) collectively through meetings and
written consents pursuant to Sections 6.05 and 6.07; (ii) through
committees pursuant to Section 6.02(b); and (iii) through Managers and
authorized representatives to whom authority and duties have been delegated
pursuant to Section 6.02(c).
(b) The Managers may, from time to time, designate one or more
committees, each of which shall be comprised of one or more Managers. Any
such committee, to the extent provided in such resolution or in the
Articles or this Operating Declaration, shall have and may exercise all of
the authority of the Managers, subject to the limitations set forth in the
Act. At every meeting of any such committee, the presence of a majority of
all the members thereof shall constitute a quorum, and the affirmative vote
of a majority of the members present shall be necessary for the adoption of
any resolution. The Managers may dissolve any committee at any time, unless
otherwise provided in the Articles or this Operating Declaration.
(c) The Managers hereby delegate to each of the Managers (acting by
themself and without the necessity of any other approval or authorization)
and may delegate to an authorized representative of the Company, including
without limitation, any Attorney-In-Fact pursuant to a Power of Attorney,
the authority to take any of the actions authorized in Section 6.01(a)
hereof. In addition, the Managers may assign titles (including, without
limitation, president, vice president, secretary, assistant secretary,
treasurer and assistant treasurer) to any such Manager or authorized
representative. Unless the Managers decide otherwise, if the title is one
commonly used for officers of a business corporation, the assignment of
such
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title shall constitute the delegation to such Manager of the authority and
duties that are normally associated with that office, subject to any
specific delegation of authority and duties made pursuant to the first
sentence of this Section 6.02(c). Any number of titles may be held by the
same Manager or authorized representative. Any delegation pursuant to this
Section 6.02(c) may be revoked at any time by the Managers.
(d) Any person dealing with the Company, other than the Member, may
rely on the authority of any Manager, authorized representative or officer
in taking any action in the name of the Company without inquiry into the
provisions of this Operating Declaration or compliance herewith, regardless
of whether that action actually is taken in accordance with the provisions
of this Operating Declaration.
6.03 NUMBER AND TERM OF OFFICE. The number of Managers of the
Company shall be determined from time to time by resolution of the
Managers; provided, however, that no decrease in the number of Managers
that would have the effect of shortening the term of an incumbent Manager
may be made by the Managers. If the Managers make no such determination,
there shall be five (5) managers. Each Manager shall hold office for the
term for which he is elected and thereafter until his successor shall have
been elected and qualified, or until his earlier death, resignation or
removal. Unless otherwise provided in the Articles, the Managers need not
be Members or residents of the State of Georgia.
6.04 VACANCIES; REMOVAL; RESIGNATION. Any Manager position to be
filled by reason of an increase in the number of Managers may be filled by
the appointment of such Manager by the Member. Any vacancy occurring in the
Managers other than by reason of an increase in the number of Managers may
be filled by the affirmative vote of a majority of the remaining Managers
though less than a quorum of the Managers. A Manager elected to fill a
vacancy occurring other than by reason of an increase in the number of
Managers shall be elected for the unexpired term of his predecessor in
office. Any Manager may be removed, with or without cause, by the Member.
Any Manager may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, or if no time
be specified, at the time of its receipt by the remaining Managers. The
acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
6.05 MEETINGS. (a) Unless otherwise required by law or provided
in the Articles or this Operating Declaration, a majority of the total
number of Managers fixed by, or in the manner provided in, the Articles or
this Operating Declaration shall constitute a quorum for the transaction of
business of the Managers, and the act of a majority of the Managers present
at a meeting at which a quorum is present shall be the act of the Managers.
A Manager who is present at a meeting of the Managers at which action on
any Company matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person
acting as secretary of the meeting before the adjournment thereof or shall
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deliver such dissent to the Company immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a Manager who voted
in favor of such action.
(b) Meetings of the Managers may be held at such place or places as
shall be determined from time to time by resolution of the Managers. At all
meetings of the Managers, business shall be transacted in such order as
shall from time to time be determined by resolution of the Managers.
Attendance of a Manager at a meeting shall constitute a waiver of notice of
such meeting, except where a Manager attends a meeting for the express
purpose of objecting to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
(c) Regular meetings of the Managers shall be held at such times and
places as shall be designated from time to time by resolution of the
Managers. Notice of such regular meetings shall not be required.
(d) Special meetings of the Managers may be called by any Manager on
at least 24 hours notice to each other Manager. Such notice need not state
the purpose or purposes of, nor the business to be transacted at, such
meeting, except as may otherwise be required by law or provided for by the
Articles or this Operating Declaration.
6.06 APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY MEMBER. The
Managers in their discretion may submit any act or contract for approval or
ratification by the Member and any act or contract approved or ratified by
the Member shall be binding on the Company.
6.07 ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any
action permitted or required by the Act, the Articles or this Operating
Declaration to be taken at a meeting of the Managers or any committee
designated by the Managers may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by all the
Managers or members of such committee, as the case may be. Such consent
shall have the same force and effect as a unanimous vote at a meeting and
may be stated as such in any document or instrument filed with the
Secretary of State of Georgia, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Managers or
any such committee, as the case may be. Subject to the requirements of the
Act, the Articles or this Operating Declaration for notice of meetings,
unless otherwise restricted by the Articles, Managers, or members of any
committee designated by the Managers, may participate in and hold a meeting
of the Managers or any committee of Managers, as the case may be, by means
of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such meeting shall constitute attendance and presence in
person at such meeting, except where a person participates in the meeting
for the express purpose of objecting to the transaction of any business on
the ground that the meeting is not lawfully called or convened.
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6.08 COMPENSATION. The Managers shall reserve such compensation,
if any, for their services as may be designated from time to time by all of
the Managers. In addition, the Managers shall be entitled to be reimbursed
for out-of-pocket costs and expenses incurred in the course of their
service hereunder, including the portion of their overhead reasonably
allocable to Company activities.
6.09 CONFLICTS OF INTEREST. Subject to the other express
provisions of this Operating Declaration, each Manager and officer and the
Member of the Company at any time and from time to time may engage in and
possess interests in other business ventures of any and every type and
description, independently or with others, including ones in competition
with the Company, with no obligation to offer to the Company or any other
Manager or officer the right to participate therein. The Company may
transact business with any Manager, Member, officer or affiliate thereof,
provided the terms of those transactions are no less favorable than those
the Company could obtain from unrelated third parties.
6.10 OFFICERS. (a) The Managers may, from time to time, designate
one or more persons to be officers of the Company. No officer need be a
resident of the State of Georgia, a Member or a Manager. Any officers so
designated shall have such authority and perform such duties as the
Managers may, from time to time, delegate to them. The Managers may assign
titles to particular officers. Unless the Managers decide otherwise, if the
title is one commonly used for officers of a business corporation, the
assignment of such title shall constitute the delegation to such officer of
the authority and duties that are normally associated with that office,
subject to (i) any specific delegation of authority and duties made to such
officer by the Managers pursuant to the third sentence of this Section
6.10(b), or (ii) any delegation of authority and duties made to one or more
Managers or authorized representatives pursuant to Section 6.02(a). Each
officer shall hold office until his successor shall be duly designated and
shall quality or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. Any number of offices may
be held by the same person. The salaries or other compensation, if any, of
the officers and agents of the Company shall be fixed from time to time by
the Managers.
(b) Any officer may resign as such at any time. Such resignation shall
be made in writing and shall take effect at the time specified therein, or
if no time be specified, at the time of its receipt by the Managers. The
acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation. Any officer may be removed
as such, either with or without cause, by the Managers whenever in their
judgment the best interests of the Company will be served thereby;
provided, however, that such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Designation of an
officer shall not of itself create contract rights. Any vacancy occurring
in any office of the Company (other than Manager) may be filled by the
Managers.
6.11 ATTORNEY-IN-FACT. (a) One or more of the Managers and/or the
President, if any, may, from time to time, designate one or more persons to
be an
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Attorney-In-Fact of the Company. No Attorney-In-Fact need be a resident of
the State of Georgia, a Member or a Manager. Any Attorney-ln-Fact so
designated shall have such authority and perform such duties as the
Managers or President may, from time to time, delegate to such person a
written instrument constituting a Power of Attorney. Each Attorney-In-Fact
shall hold office until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. The salaries or other
compensation, if any, of any Attorney-In-Fact of the Company shall be fixed
from time to time by the Managers.
(b) Any Attorney-In-Fact may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein, or if no time be specified, at the time of its receipt
by the Managers. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation. Any
Attorney-In-Fact may be removed as such, either with or without cause, by
the Managers whenever in their judgment the best interests of the Company
will be served thereby; provided, however, that such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Designation of an Attorney-In-Fact shall not of itself create contract
rights.
3. Application of Georgia Law. This Amendment, and the application or
interpretation hereof, shall be governed exclusively by its terms and by the
Georgia Act.
4. Execution of Additional Instruments. The Member hereby agrees to execute
such other and further statements of interest and holdings, designations, powers
of attorney and other instruments necessary in connection with this Amendment to
comply with any laws, rules or regulations.
5. Construction. Whenever the singular number is used in this Amendment and
when required by the context, the same shall include the plural and vice versa,
and the masculine gender shall include the feminine and neuter genders and vice
versa.
6. Headings. The headings in this Amendment are inserted for convenience
only and are in no way intended to describe, interpret, define, or limit the
scope, extent or intent of this Amendment or any provision hereof.
7. Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
[SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned has set its hand and seal as of the
date first above written.
MEMBER:
ASHTON WOODS USA, L.L.C., a Nevada
limited liability company
By: /s/ ROBERT SALOMON
---------------------------------(SEAL)
Name: Robert Salomon
---------------------------------
Title: CFO
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