EXHIBIT 3.3
FIRST AMENDMENT TO
OPERATING AGREEMENT
FOR
PERFORMANCE CAPITAL MANAGEMENT, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
THIS FIRST AMENDMENT TO OPERATING AGREEMENT FOR PERFORMANCE CAPITAL MANAGEMENT,
LLC, a California limited liability company (this "First
Amendment") is made as of the____day of___________________, 2002, by and among
PERFORMANCE ASSET MANAGEMENT FUND, LTD., a California limited partnership,
PERFORMANCE ASSET MANAGEMENT FUND II, LTD., a California limited partnership,
PERFORMANCE ASSET MANAGEMENT FUND III, LTD., a California limited partnership,
PERFORMANCE ASSET MANAGEMENT FUND IV, LTD., a California limited partnership,
and PERFORMANCE ASSET MANAGEMENT FUND V, LTD., a California limited partnership.
This First Amendment amends that certain Operating Agreement for PERFORMANCE
CAPITAL MANAGEMENT, LLC, a California limited liability company (the "Operating
Agreement"). Except as otherwise amended hereby, the Operating Agreement shall
continue in full force and effect. Capitalized terms which are used herein and
are defined in the Operating Agreement shall have the same meanings herein as
therein unless provided otherwise herein. The Operating Agreement is amended in
the following respects only:
THE FOLLOWING SECTIONS OF THE OPERATING AGREEMENT ARE HEREBY AMENDED TO READ IN
FULL AS SET FORTH HEREIN:
1. RECITALS:
On January 14, 2002, Articles of Organization for Performance Capital
Management, LLC, a California limited liability company (the "Company"), were
filed with the California Secretary of State.
2. ARTICLE I - DEFINITIONS:
1.7 "Articles" shall mean the Articles of Organization for the Company
originally filed with the California Secretary of State on January 14, 2002, as
the same shall be amended and/or restated from time to time.
Section 1.20 Effective Date Unreturned Capital, is hereby amended by
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replacing Exhibits D and D-l attached to the Operating Agreement with Exhibits D
and D-l attached to this Amendment.
Section 1.34 is hereby amended to reflect that the plan of reorganization
was confirmed on December 21, 2001 by an order entered on January 24, 2002.
3. ARTICLE II - ORGANIZATIONAL MATTERS:
2.3 Term The term of the Company commended on January 14, 2002, and the
Company will continue and have perpetual existence unless it is sooner dissolved
as provided in this Agreement.
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4. ARTICLE IV - MEMBERS:
4.6 Certain Matters Reserved to the Members. No Member, acting solely
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in the capacity as a Member, shall have the right to take part in the management
of the Company or transact any business on its behalf. Notwithstanding the
foregoing, the Members shall have the right to vote upon the following matters:
(a) Election of any successor Director, except with respect to
any mid-term vacancy on the Board which may be filled by the Board of Directors;
(b) Amendment of the Articles;
(c) Amendment of this Agreement;
(d) Dissolution of the Company as provided in subdivision (b)
of Section 17350 of the Corporations Code;
(e) Merger of the Company as provided in Section 17551 of
the Corporations Code; and
(f) Sale of all or substantially all of the assets of the
Company.
4.7.1 Meetings of Members. The annual meeting of the Members shall be
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held on the second Monday in May of every year at the hour of 10:00 a.m. Pacific
Standard Time, at such place within the State of California as the Board of
Directors may fix from time to time, for the purposes of electing directors and
transacting such other business as properly may come before the meeting. If the
day fixed for the annual meeting is a legal holiday, that meeting shall be held
on the next succeeding Business Day. A different time for holding the annual
meeting of the Members may be fixed from time to time by the Board of Directors.
Special meetings may be called by the Board of Directors or by a Member or
Members who in the aggregate hold Percentage Interests equal to or greater than
ten percent (10%). Special meetings may be held at such date, time and place
within the State of California as the Board may fix.
4.7.4 Quorum and Vote Required for Action. Members present in person
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or by proxy whose aggregate Percentage Interests exceed thirty-three and
one-third percent (33 l/3%) of the aggregate Percentage Interests of all Members
entitled to vote at a meeting of the Members shall constitute a quorum at that
meeting. If a quorum is present at a meeting, the act of Members present whose
aggregate Percentage Interests constitute a majority of the aggregate Percentage
Interests of all Members present at that meeting shall be the act of the
Members, unless a different number of votes is required by Applicable Law or
this Agreement. A majority of a quorum shall be sufficient to amend this
Agreement. A majority of the aggregate Percentage Interests of all Members shall
be required to amend the Articles. If a quorum is not present at a meeting, then
Members present whose aggregate Percentage interests constitute a majority of
the aggregate Percentage Interests of all Members present at that meeting may
adjourn the meeting from time to time without further notice. At an adjourned
meeting at which a quorum is present, any business may be transacted that might
have been transacted at the original meeting.
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5. ARTICLE V - MANAGEMENT AND CONTROL OF THE COMPANY:
5.2.4 Term. Unless a Director resigns or is removed by the affirmative
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vote of Members who in the aggregate hold a majority of the Percentage Interests
at a meeting called expressly for that purpose, such Director shall serve in
such capacity for a two-year term and shall serve until his or her successor is
duly elected.
The blank in Section 5.2.5 Compensation, is hereby filled in with $1,500 as
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the amount of compensation per meeting payable to Directors for attending
meetings of the Board of Directors.
A new Section 5.2.7 shall be added as follows:
5.2.7 Vacancies.
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(a) A vacancy on the Board of Directors shall be deemed
to exist (1) if a Director dies, resigns, or is removed by the Members or an
appropriate court; (2) if the Board of Directors declares vacant the office of a
Director who has been convicted of a felony or declared of unsound mind by an
order of court; (3) if the authorized number of Directors is increased; or (4)
if at a Members' meeting the Members fail to elect the full authorized number of
Directors. Vacancies (except for those caused by a Director's removal) may be
filled by approval of the Board, or, if the number of Directors then in office
is less than a quorum, by (A) the affirmative vote of a majority of the
Directors then in office at a meeting held pursuant to notice or waiver of
notice complying with the requirements of this Agreement by written consent, or
(B) a sole remaining Director.
(b) Vacancies on the Board caused by the removal of a
Director (except for vacancies created when the board declares the office of a
Director vacant as provided in clause (2) of subsection (a) of this section) may
be filled only by the Members.
(c) Any Director may resign effective on giving written
notice to the Board of Directors, unless the notice specifies a later effective
date. If the resignation is effective at a future time, the Board of Directors
may elect a successor to take office when the resignation becomes effective.
(d) The Members may elect a Director at any time to fill
a vacancy not filled by the Board of Directors.
(e) The term of office of a Director elected to fill a
vacancy shall run until the end of the term of the Director being replaced, and
the incoming Director shall in any event hold office until a successor is
elected and qualified.
6. ARTICLE VI - TRANSFER AND ASSIGNMENT OF INTERESTS:
6.1 Transfer of Interests. No Member shall be entitled to Transfer all or
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any part of its Membership Interest, including the Economic Interest inherent in
the Membership, except with the prior written Approval of the Board of
Directors, which approval may be given or withheld,
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conditioned or delayed (as allowed by this Agreement or the Act), as the Board
of Directors may determine in its sole discretion and no transfer of a
Membership Interest or of the Economic Interest inherent in the Membership
Interest shall be effective unless and until the transferor obtains written
Approval of the Board of Directors. Further, the Board of Directors, in its sole
discretion, may approve the transfer of the Economic Interest inherent in the
Membership Interest without approving the transferee as a substitute Member.
Notwithstanding anything in this Agreement to the contrary, no Transfer of a
Membership Interest in the Company shall be made if such Transfer or the
transferee's ownership of such Membership Interest in the Company, as the case
may be, would:
(a) result by itself, or in combination with any other
previous Transfers, in the termination of the Company as a partnership for
federal income tax purposes;
(b) result in the violation of the Securities Act of
1933, as amended, or any other applicable federal or state laws;
(c) constitute a violation of or a default (or an event
that, with notice or the lapse of time or both, would constitute a default)
under, or result in an acceleration of any Indebtedness or payment under, any
contract, agreement, note, mortgage, loan agreement, instrument or document
to which the Company is a party; or
(d) be a Transfer to an individual who is not legally
competent or who has not achieved his or her majority under the law of the state
(excluding trusts for the benefit of minors).
6.2.1 Substitution of Members. A transferee of a Membership Interest
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shall have no right to become a substitute Member and may become a substitute
Member only if all of the following conditions are satisfied:
(a) the Board of Directors approves in writing admission
of the transferee as a substitute Member, which approval may be given or
withheld, conditioned or delayed (as allowed by this Agreement or the Act), as
the Board of Directors may determine in its sole discretion;
(b) a duly executed and acknowledged instrument of
assignment that is reasonably satisfactory in form and substance to the Board of
Directors is filed with the Company setting forth the intention of the
transferor to Transfer its interest in the Company;
(c) the transferor and transferee execute and
acknowledge such other instruments with such additional covenants as the Board
of Directors may request, in their sole discretion, which shall include, without
limitation, an instrument pursuant to which the transferee agrees to be bound by
the terms of this Agreement; and
(d) the assignee pays to the Company the reasonable
costs and expenses of the Company incurred in connection with such assignment.
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6.3 Transfer of Economic Interest. Upon any approved Transfer of a
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Membership Interest, unless the transferee is admitted as a substitute Member,
the transferee shall be only an Economic Interest Owner and shall be entitled
only to receive, to the extent assigned, the distributions and the allocations
of income, gains, losses, deductions, credit or similar items to which the
assignor Member would be entitled (the "Economic Rights"). Except for the
Economic Rights, the Economic Interest Owner shall not have any rights of a
Member ("Member Rights"), including, without limitation, the right to vote or to
participate in management or, except as otherwise provided in the Act, any right
to information concerning the business and affairs of the Company. Further, upon
a Transfer of an Economic Interest, all Member Rights arising pursuant to this
Agreement or applicable law which were inherent in the Membership Interest from
which the Economic Interest was derived, other than the Economic Rights, shall
be eliminated and no one, including, without limitation, the Member who
transferred the Economic Interest, shall have any rights with respect to the
Member Rights.
Section 6.5 Transfers Pursuant to the Plan of Reorganization, is hereby
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amended by replacing the Exhibits C-l and D-l attached to the Operating
Agreement with the Exhibits C-l and D-l attached to this Amendment.
7. ARTICLE X-ACCOUNTING, RECORDS, REPORTING BY MEMBERS:
The blank in Section 10.6 Tax Matters Member, is hereby filled in with
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Rodney S. Woodworm to act as "Tax Matter Partner" as that term is defined in
Section 6231(a)(7) of the Code.
IN WITNESS WHEREOF, all of the Members of PERFORMANCE CAPITAL MANAGEMENT,
LLC, a California limited liability company, have executed this First
Amendment, effective as of the date written above.
PERFORMANCE ASSET MANAGEMENT
FUND, LTD., a California limited partnership
By: NOD, INC., general partner
By:
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Name:
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Title:
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PERFORMANCE ASSET MANAGEMENT
FUND II, LTD., a California limited partnership
By: NOD, INC., general partner
By:
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Name:
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Title:
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PERFORMANCE ASSET MANAGEMENT
FUND III, LTD., a California limited partnership
By: NOD, INC., general partner
By:
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Name:
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Title:
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PERFORMANCE ASSET MANAGEMENT
FUND IV, LTD., a California limited partnership
By: NOD, INC., general partner
By:
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Name:
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Title:
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PERFORMANCE ASSET MANAGEMENT
FUND V, LTD., a California limited partnership
By: NOD, INC., general partner
By:
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Name:
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Title:
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