EXHIBIT 3.27
LIMITED LIABILITY COMPANY AGREEMENT FOR
OCEAN ROVER LLC
This Limited Liability Company Agreement (this "Agreement") is made
and entered into as of January 28, 2000 by Ocean Rover LLC, a Delaware limited
liability company (the "Company") and the sole member (the "Member") of the
Company.
ARTICLE I
THE COMPANY
Section 1.1 Formation. The Member has formed the Company subject to
the provisions of the Delaware Limited Liability Company Act as currently in
effect and as the same may be amended from time to time (the "Act").
Section 1.2 Filing. In connection with the execution of this
Agreement, the Member has caused a Certificate of Formation that complies with
the requirements of the Act to be properly executed and filed with the Delaware
Secretary of State by Joseph R. McKechnie Jr., as an authorized person within
the meaning of the Act, and the Member hereby ratifies such filing and formation
of the Company, and the Member is hereby designated an authorized person to
execute such further documents (including amendments to the Certificate of
Formation) and take such further action as is appropriate to comply with the
requirements of law for the formation or operation of a limited liability
company in all states and counties where the Company may conduct its business.
Section 1.3 Name. The name of the Company shall be Ocean Rover LLC.
Section 1.4 Registered Office, Registered Agent. The location of the
registered office of the Company in Delaware shall be Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware, and thereafter at such other location
as the Member may designate. The Company's registered agent at such address
shall be The Corporation Trust Company.
Section 1.5 Events of Dissolution. The Company shall continue until
December 31, 2050, unless sooner dissolved by:
(1) the election of the Member;
(2) any event which makes it unlawful for the business of the Company
to be carried on by the Member; or
(3) any other event causing a dissolution of a limited liability
company under the Act.
Section 1.6 Management of Business. Subject to Section 4.1, the
business of the Company shall be conducted under the management of the Member
consistent with the Limited Liability Company Agreement of the Member. The
Member shall be responsible for the management of the Company's business and
affairs, and the Company shall be managed solely by the Member. Except as
otherwise expressly provided in this Agreement, the Member shall
have the exclusive power and authority to take such action for and on behalf of
the Company as the Member shall from time to time deem necessary or appropriate
to carry on the Company business and to carry out the purposes for which the
Company was organized. Without limiting the generality of the foregoing, but
subject to any express provisions to the contrary in this Agreement, the Member
shall have the right, power and authority, in the name of, and on behalf of, the
Company to:
(1) protect and preserve the title and interest of the Company
in the property and assets owned by the Company;
(2) pay, before delinquency and prior to the addition thereto of
interest or penalties, all taxes, assessments, rent and other
impositions applicable to the property and assets owned by the
Company and undertake any action or proceedings seeking to reduce
such taxes, assessments, rents or other impositions;
(3) retain or employ and coordinate the services of all
employees, supervisors, architects, engineers, accountants,
attorneys and other persons necessary or appropriate to carry out
the business of the Company;
(4) maintain casualty and liability insurance and such other
insurance as is customarily maintained by owners of property
utilized in a similar manner in the geographic area in which any
property owned by the Company is located, and pay all insurance
premiums, debts and other obligations of the Company;
(5) maintain all funds of the Company in an account or accounts
and in a bank or banks as may be selected by the Member pursuant
to Article V hereof;
(6) after receipt of notice of any violations of any law, rules
or order of any governmental authority having jurisdiction over
any Company property or assets, promptly correct or cure same;
and
(7) comply with the terms of all contracts required to be
complied with by the Company.
Except as otherwise provided herein, to the extent the duties of the Member
require expenditures of funds to be paid to third parties, the Member shall not
have any obligations hereunder except to the extent that Company funds are
reasonably available to it for the performance of such duties, and nothing
herein contained shall be deemed to authorize or require the Member, in its
capacity as such, to expend its individual funds for payment to third parties or
to undertake any individual liability or obligation on behalf of the Company.
Section 1.7 Character of Business. The business of the Company shall
be:
(1) To transact other business. To transact any and all
businesses for which limited liability companies may be formed
under Delaware law.
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(2) To act on own account or for others. To accomplish any of
the foregoing purposes for its own account or as nominee, agent
or trustee for others.
Section 1.8 Principal Place of Business. The location of the
principal place of business of the Company shall be at 2025 First Avenue, Suite
900, Seattle, Washington 98121, or at such other place as the Member from time
to time may select.
Section 1.9 Intent of Parties. It is the specific intent of the
parties to this Agreement that the Company will be treated as a disregarded
entity for Federal income tax purposes.
ARTICLE II
PROFITS, LOSSES AND DISTRIBUTIONS
Section 2.1 Profits and Losses. The Member shall treat all profits
and losses of the Company as its own profits and losses for Federal income tax
purposes.
Section 2.2 Distributions. Subject to the Act and other applicable
law, the Member shall cause the Company to distribute funds to the Member at the
Member's discretion.
ARTICLE III
INDEMNIFICATION
Section 3.1 Right to Indemnification.
(a) The Company shall, to the fullest extent permitted by law,
indemnify each Manager, the Member, any owner or principal of the Member, any
person that is a director, officer, employee, agent or representative of the
Member, and any other persons as the Member may reasonably designate from time
to time (each, an "Indemnitee") from and against any and all losses, claims,
damages, liabilities, costs and expenses (including attorneys' fees and costs),
judgments, fines, settlements, and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative, that relate to the operations of the Company in which any
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, unless it is established that an act or omission of the Indemnitee
was material to the matter giving rise to the claim, demand, action, suit or
proceeding and (i) was committed in bad faith, (ii) was the result of active and
deliberate dishonesty, or (iii) constituted gross negligence or willful
misconduct or a willful breach of this Agreement or any other agreement to which
such Indemnitee is a party. Any indemnification pursuant to this Section 3.1
shall be made only out of the assets of the Company, and the Member shall not be
required to contribute or advance funds to the Company to enable the Company to
satisfy its obligations under this Section 3.1.
(b) Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding shall be paid or reimbursed by the Company in advance of the final
disposition of the proceeding upon receipt by the Company of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that it is
entitled to indemnification by the Company pursuant to this Section 3.1 with
respect to such expenses and proceeding, and (ii) a written undertaking by or on
behalf of the Indemnitee, to and in favor of the Company, wherein the Indemnitee
agrees to
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repay the amount if it shall ultimately be adjudged not to have been entitled to
indemnification under this Section 3.1.
(c) The provisions of this Section 3.1 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons.
Section 3.2 Right of Claimant to Bring Suit. If a claim under Section
3.1 of this Article is not paid in full by the Company within thirty days after
a written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall also be
entitled to be paid also the expense of prosecuting such claim. In any such
action, the Company shall have the burden of proving that the Indemnitee was not
entitled to the requested indemnification or payment of expenses under
applicable law. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Company) that the claimant has failed to meet
a standard of conduct which makes it permissible under Delaware law for the
Company to indemnify the claimant for the amount claimed. Neither the failure of
the Company to have made a determination prior to the commencement of such
action that indemnification of the claimant is permissible in the circumstances
because he or she has met such standard of conduct, nor an actual determination
by the Company that the claimant has not met such standard of conduct, shall be
a defense to the action or create a presumption that the claimant has failed to
meet such standard of conduct.
Section 3.3 Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
agreement, vote of the Member or otherwise.
Section 3.4 Insurance. The Company may maintain insurance, at its
expense, to protect itself, each Manager, the Member, any owner or principal of
the Member, any person that is a director, officer, employee, agent or
representative of the Member, and any other persons as the Member may reasonably
designate from time to time, against any such expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under Delaware law.
Section 3.5 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article III shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
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ARTICLE IV
RIGHTS AND OBLIGATIONS OF MEMBER
Section 4.1 Authority and Appointment of Managers: Authority of
Member.
(a) Notwithstanding anything else in this Agreement, including
without limitation Section 1.6, but subject to the limitations imposed by the
Act and the Company's Certificate of Formation authority to manage and control
the business affairs of the Company and to make decisions regarding the ordinary
course of the business of the Company may be vested in one or more managers
(each, a "Manager") who shall be appointed by the Member. Pursuant to the
foregoing, each Manager shall have all the rights and powers of a Manager as
provided in the Act and except as otherwise provided by law, any action taken by
a Manager in the ordinary course of the Company's business shall constitute the
act of and serve to bind the Company. A Manager also may have, and may utilize,
the title of President, Director, Managing Director, Chairman, Chief Executive
Officer or any other title designated by the Member.
(b) Notwithstanding subsection (a), the powers to act on the
following matters are reserved to the Member and may be exercised only upon, and
shall be effective only subject to, the written consent of the Member:
(i) to adopt, alter, amend or repeal the Certificate of
Formation of the Company or any subsidiary thereof (each, a "Subsidiary") or any
of the provisions of this Agreement or any limited liability company agreement
or operating agreement of any Subsidiary, including without limitation the
provisions herein specifying the appointment of Managers;
(ii) to make any material change in the nature of the business
of the Company, including, without limitation, the investment of the Company's
funds in other businesses, the undertaking by the Company of any new projects
which are materially different from the then current business of the Company;
(iii) to take any steps to merge, consolidate or dissolve the
Company or otherwise to terminate its existence;
(iv) to make any sale, lease, exchange or other disposition of
any Subsidiary, the business of the Company or all or substantially all of the
property or assets of the Company;
(v) to take any action to create a Subsidiary or other
business entity of the Company, or to participate in any joint venture,
association, partnership, limited liability company, or corporation;
(vi) to issue or redeem any membership interests in the
Company;
(vii) to consent to, authorize or take any action of or with
respect to any Subsidiary (whether on behalf of or in the name of such
Subsidiary or otherwise) for which the approval of such Subsidiary's member(s)
is required under such Subsidiary's articles of
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organization, certificate of formation, limited liability company agreement,
operating agreement, any similar document or agreement, or the laws of the
jurisdiction under which such Subsidiary is organized;
(viii) to require additional capital contributions or loans from
the Member;
(ix) to approve any transaction with any Manager or with any
person which directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such person; and
(x) to declare bankruptcy or insolvency under any applicable
law or to appoint a receiver, liquidator, sequestrator, trustee or custodian
with power over all or a substantial part of its assets.
(c) The Member shall have the sole authority to remove any Manager
with or without cause by written notice to such Manager. A Manager shall be
deemed to be removed upon any death or disability of such person. Disability for
purposes hereof shall mean that such person is unable to perform such person's
duties hereunder due to mental or physical incapacity for a period of three (3)
months or more.
Section 4.2 Limited Liability. Except as required under the Act or as
expressly set forth in this Agreement, no Member shall be personally liable for
any debt, obligation or liability of the Company, whether that debt, liability
or obligation arises in contract, tort or otherwise.
Section 4.3 Amendments. Amendments to this Agreement may be made only
by an instrument in writing signed by the Member.
ARTICLE V
ACCOUNTS
All funds of the Company shall be deposited in the name of the Company
in such account or accounts as shall be designated by the Member or a Manager.
All withdrawals from such account or accounts are to be made upon written bank
instruments which must be signed by the Member or a Manager.
ARTICLE VI
BOOKS
The Member or a Manager shall cause to be kept, at the principal place
of business of the Company, full and proper ledgers and other books of account
in which shall be entered all matters relating to the Company, including all
income, expenditures, assets and liabilities thereof. Such books shall be kept
on a calendar-year basis in accordance with generally accepted accounting
principles consistently applied, and shall be closed and balanced at the end of
each tax year.
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ARTICLE VII
TERMINATION
If the Company is dissolved the Member shall proceed with reasonable
promptness to liquidate the Company. The assets of the Company shall be
distributed first to satisfy or provide for the satisfaction of all liabilities
of the Company to creditors, including liquidating expenses and obligations; and
thereafter to the Member.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Governing Law. This Agreement, and any question, dispute,
or other matter related to or arising from this Agreement, will be governed by
the laws of the State of Delaware without reference to conflict of laws
principles.
Section 8.2 Binding Effect. This Agreement binds the Member and its
respective distributees, successors, and assigns and any other person claiming a
right or benefit under or covered by this Agreement.
Section 8.3 Severability. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable,
(a) that provision will be fully severable and this Agreement
will be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been part of this Agreement;
(b) the remaining provisions of this Agreement will remain in
full force and will not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement;
and
(c) in the place of the illegal, invalid, or unenforceable
provision, there will be added automatically to this Agreement a
legal, valid, and enforceable provision that is as similar to the
illegal, invalid, or unenforceable provision as possible.
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