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Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 4.62M
Business-Combination Transaction
2: EX-2.1 Agreement and Plan of Merger HTML 438K
3: EX-3.1 Certificate of Incorporation of Kar Holdings, HTML 71K
Inc., as Amended
12: EX-3.10 Operating Agreement for A.D.E. of Knoxville, LLC, HTML 127K
as Amended
102: EX-3.100 Code of Regulations for Auto Disposal Systems, HTML 78K
Inc.
103: EX-3.101 Articles of Organization of Ads Ashland, LLC HTML 69K
104: EX-3.102 Operating Agreement for Ads Ashland, LLC HTML 117K
105: EX-3.103 Articles of Organization of Ads Priority Transport HTML 60K
Ltd.
106: EX-3.104 Operating Agreement for Ads Priority Transport HTML 118K
Ltd.
107: EX-3.105 Articles of Organization of Dent Demon, LLC HTML 71K
108: EX-3.106 Operating Agreement for Dent Demon, LLC HTML 115K
109: EX-3.107 Certificate of Incorporation of Sioux Falls Auto HTML 76K
Auction, Inc.
110: EX-3.108 By-Laws of Sioux Falls Auto Auction, Inc. HTML 107K
111: EX-3.109 Articles of Incorporation of Zabel & Associates, HTML 64K
Inc.
13: EX-3.11 Articles of Organization of Adesa Ark-La-Tex, LLC HTML 64K
112: EX-3.110 By-Laws of Zabel & Associates, Inc. HTML 107K
14: EX-3.12 Amended and Restated Operating Agreement for Adesa HTML 123K
Ark-La-Tex, LLC, as Amended
15: EX-3.13 Certificate of Formation of Adesa Arkansas, LLC HTML 99K
16: EX-3.14 Operating Agreement for Adesa Arkansas, LLC, as HTML 128K
Amended
17: EX-3.15 Certificate of Formation of Adesa Atlanta, LLC HTML 64K
18: EX-3.16 Amended and Restated Operating Agreement for Adesa HTML 122K
Atlanta, LLC, as Amended
19: EX-3.17 Articles of Organization of Adesa Birmingham, LLC HTML 82K
20: EX-3.18 Operating Agreement for Adesa Birmingham, LLC, as HTML 129K
Amended
21: EX-3.19 Articles of Organization-Conversion of Adesa HTML 69K
California, LLC
4: EX-3.2 By-Laws of Kar Holdings, Inc. HTML 160K
22: EX-3.20 Operating Agreement for Adesa California, LLC, as HTML 116K
Amended
23: EX-3.21 Articles of Organization of Adesa Charlotte, LLC HTML 72K
24: EX-3.22 Operating Agreement for Adesa Charlotte, LLC, as HTML 133K
Amended
25: EX-3.23 Articles of Organization of Adesa Colorado, LLC HTML 95K
26: EX-3.24 Operating Agreement for Adesa Colorado, LLC, as HTML 131K
Amended
27: EX-3.25 Articles of Organization of Adesa Dealer Services, HTML 72K
LLC
28: EX-3.26 Operating Agreement for Adesa Dealer Services, LLC HTML 117K
29: EX-3.27 Articles of Organization of Adesa Des Moines, LLC HTML 85K
30: EX-3.28 Operating Agreement for Adesa Des Moines, LLC, as HTML 132K
Amended
31: EX-3.29 Articles of Organization of Adesa Florida, LLC HTML 75K
5: EX-3.3 Amended and Restated Certificate of Incorporation HTML 69K
of Adesa, Inc.
32: EX-3.30 Operating Agreement for Adesa Florida, LLC, as HTML 129K
Amended
33: EX-3.31 Certificate of Formation of Adesa Impact Texas, HTML 83K
LLC
34: EX-3.32 Operating Agreement for Adesa Impact Texas, LLC, HTML 124K
as Amended
35: EX-3.33 Articles of Organization of Adesa Indianapolis, HTML 72K
LLC
36: EX-3.34 Operating Agreement for Adesa Indianapolis, LLC, HTML 131K
as Amended
37: EX-3.35 Articles of Organization of Adesa Lansing, LLC HTML 110K
38: EX-3.36 Operating Agreement for Adesa Lansing, LLC, as HTML 128K
Amended
39: EX-3.37 Articles of Organization of Adesa Lexington, LLC HTML 78K
40: EX-3.38 Operating Agreement for Adesa Lexington, LLC, as HTML 134K
Amended
41: EX-3.39 Articles of Organization of Adesa Mexico, LLC HTML 71K
6: EX-3.4 Amended and Restated By-Laws of Adesa, Inc. HTML 107K
42: EX-3.40 Operating Agreement for Adesa Mexico, LLC HTML 111K
43: EX-3.41 Certificate of Organization of Adesa Missouri, LLC HTML 91K
44: EX-3.42 Operating Agreement for Adesa Missouri, LLC, as HTML 120K
Amended
45: EX-3.43 Certificate of Formation of Adesa New Jersey, LLC HTML 68K
46: EX-3.44 Operating Agreement for Adesa New Jersey, LLC, as HTML 120K
Amended
47: EX-3.45 Articles of Organization of Adesa New York, LLC HTML 70K
48: EX-3.46 Operating Agreement for Adesa New York, LLC, as HTML 131K
Amended
49: EX-3.47 Articles of Organization of Adesa Ohio, LLC HTML 86K
50: EX-3.48 Operating Agreement for Adesa Ohio, LLC, as HTML 130K
Amended
51: EX-3.49 Articles of Organization of Adesa Oklahoma, LLC HTML 88K
7: EX-3.5 Articles of Organization of Adesa Corporation, LLC HTML 71K
52: EX-3.50 Operating Agreement for Adesa Oklahoma, LLC, as HTML 130K
Amended
53: EX-3.51 Certificate of Organization of Adesa Pennsylvania, HTML 132K
Inc.
54: EX-3.52 Operating Agreement for Adesa Pennsylvania, LLC HTML 115K
55: EX-3.53 Articles of Incorporation of Tri-State Auction HTML 89K
Co., Inc.
56: EX-3.54 By-Laws of Tri-State Auction Co., Inc. HTML 106K
57: EX-3.55 Certificate of Formation of Adesa Phoenix, LLC HTML 63K
58: EX-3.56 Amended and Restated Operating Agreement for Adesa HTML 122K
Phoenix, LLC, as Amended
59: EX-3.57 Certificate of Incorporation of Axle Holdings, HTML 68K
Inc., as Amended
60: EX-3.58 By-Laws of Axle Holdings, Inc. HTML 159K
61: EX-3.59 Articles of Organization of Adesa San Diego, LLC HTML 76K
8: EX-3.6 Operating Agreement for Adesa Corporation, LLC, as HTML 120K
Amended
62: EX-3.60 Amended and Restated Operating Agreement for Adesa HTML 119K
San Diego, LLC, as Amended
63: EX-3.61 Articles of Organization of Adesa-South Florida, HTML 62K
LLC
64: EX-3.62 Amended and Restated Operating Agreement for HTML 115K
Adesa-South Florida, LLC
65: EX-3.63 Articles of Organization of Adesa Southern HTML 72K
Indiana, LLC
66: EX-3.64 Operating Agreement for Adesa Southern Indiana, HTML 132K
LLC, as Amended
67: EX-3.65 Articles of Incorporation of Adesa Texas, Inc. HTML 82K
68: EX-3.66 Amended and Restated Code of By-Laws of Adesa HTML 109K
Texas, Inc.
69: EX-3.67 Articles of Organization of Adesa Virginia, LLC HTML 71K
70: EX-3.68 Operating Agreement for Adesa Virginia, LLC, as HTML 122K
Amended
71: EX-3.69 Certificate of Formation of Adesa Washington, LLC HTML 92K
9: EX-3.7 Articles of Incorporation of A.D.E. of Ark-La-Tex, HTML 74K
Inc.
72: EX-3.70 Operating Agreement for Adesa Washington, LLC, as HTML 130K
Amended
73: EX-3.71 Articles of Organization of Adesa Wisconsin, LLC HTML 103K
74: EX-3.72 Operating Agreement for Adesa Wisconsin, LLC, as HTML 129K
Amended
75: EX-3.73 Articles of Organization of Afc Cal, LLC HTML 69K
76: EX-3.74 Amended and Restated Operating Agreement for Afc HTML 93K
Cal, LLC
77: EX-3.75 Restated Certificate of Limited Partnership of HTML 141K
Asset Holdings Iii, L.P.
78: EX-3.76 Amended and Restated Partnership Agreement for HTML 231K
Asset Holdings Iii, L.P.
79: EX-3.77 Certificate of Organization of Auto Dealers HTML 100K
Exchange of Concord, LLC
80: EX-3.78 Operating Agreement for Auto Dealers Exchange of HTML 132K
Concord, LLC, as Amended
81: EX-3.79 Articles of Organization of Auto Dealers Exchange HTML 99K
of Memphis, LLC
10: EX-3.8 Amended and Restated Code of By-Laws of A.D.E. of HTML 109K
Ark-La-Tex, Inc.
82: EX-3.80 Operating Agreement for Auto Dealers Exchange of HTML 133K
Memphis, LLC, as Amended
83: EX-3.81 Articles of Organization of Automotive Finance HTML 72K
Consumer Division, LLC
84: EX-3.82 Operating Agreement for Automotive Finance HTML 115K
Consumer Division, LLC
85: EX-3.83 Articles of Amend. and Restate. of Articles of HTML 106K
Inc. of Automotive Finance Corp.
86: EX-3.84 Amended and Restated Code of By-Laws of Automotive HTML 80K
Finance Corporation
87: EX-3.85 Articles of Incorporation of Automotive Recovery HTML 90K
Services, Inc.
88: EX-3.86 Amended and Restated Code of By-Laws of Automotive HTML 108K
Recovery Services, Inc.
89: EX-3.87 Articles of Incorporation of Autovin, Inc. HTML 70K
90: EX-3.88 Amended and Restated Code of By-Laws of Autovin, HTML 108K
Inc.
91: EX-3.89 Articles of Incorporation of Par, Inc. HTML 96K
11: EX-3.9 Articles of Organization of A.D.E. of Knoxville, HTML 80K
LLC
92: EX-3.90 Amended and Restated Code of By-Laws of Par, Inc. HTML 109K
93: EX-3.91 Articles of Incorporation of Insurance Auto HTML 251K
Auctions, Inc.
94: EX-3.92 By-Laws of Insurance Auto Auctions, Inc. HTML 151K
95: EX-3.93 Articles of Incorporation of Insurance Auto HTML 107K
Auctions Corp.
96: EX-3.94 By-Laws of Insurance Auto Auctions Corp. HTML 98K
97: EX-3.95 Certificate of Incorporation of Iaa Acquisition HTML 65K
Corp.
98: EX-3.96 By-Laws of Iaa Acquisition Corp. HTML 107K
99: EX-3.97 Articles of Incorporation of Iaa Services, Inc. HTML 94K
100: EX-3.98 By-Laws of Iaa Services, Inc. HTML 101K
101: EX-3.99 Articles of Incorporation of Auto Disposal HTML 83K
Systems, Inc., as Amended
113: EX-4.1 Indenture (Floating Rate Senior Notes) HTML 701K
122: EX-4.10 Second Supplemental Indenture (Fixed Rate Senior HTML 75K
Notes)
123: EX-4.11 Second Supplemental Indenture (Senior Subordinated HTML 76K
Notes)
114: EX-4.2 Indenture (Fixed Rate Senior Notes) HTML 690K
115: EX-4.3 Indenture (Senior Subordinated Notes) HTML 757K
116: EX-4.4 Supplemental Indenture (Floating Rate Senior HTML 81K
Notes)
117: EX-4.5 Supplemental Indenture (Fixed Rate Senior Notes) HTML 81K
118: EX-4.6 Supplemental Indenture (Senior Subordinated Notes) HTML 81K
119: EX-4.7 Exchange and Registration Rights Agreement HTML 252K
120: EX-4.8 Registration Rights Agreement HTML 178K
121: EX-4.9 Second Supplemental Indenture (Floating Rate HTML 75K
Senior Notes)
124: EX-5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom HTML 99K
LLP
125: EX-10.1 Guarantee and Collateral Agreement HTML 287K
132: EX-10.10 Form of Conversion Stock Option Agreement HTML 93K
133: EX-10.11 Form of Amendment to Conversion Stock Option HTML 66K
Agreement
134: EX-10.12 Form of Rollover Stock Option Agreement HTML 101K
135: EX-10.13 Form of Conversion Agreement HTML 90K
136: EX-10.14 Stock Incentive Plan of Kar Holdings, Inc. HTML 109K
137: EX-10.15 Form of Nonqualified Stock Option Agreement HTML 97K
138: EX-10.16 Employment Agreement (John Nordin) HTML 105K
139: EX-10.17 Amendment to Employment Agreement (John Nordin) HTML 62K
140: EX-10.18 Financial Advisory Agreement (Goldman, Sachs & HTML 68K
Co.)
141: EX-10.19 Financial Advisory Agreement (Valueact Capital HTML 69K
Master Fund, L.P.)
126: EX-10.2 Credit Agreement HTML 611K
142: EX-10.20 Financial Advisory Agreement (Pcap, L.P.) HTML 69K
143: EX-10.21 2007 Incentive Plan Executive Management of HTML 69K
Insurance Auto Auctions, Inc.
144: EX-10.22 Amended and Restated Employment Agreement (Thomas HTML 104K
C. O'Brien)
145: EX-10.23 Limited Liability Company Agreement of Kar HTML 78K
Holdings Ii, LLC
146: EX-10.24 Amended and Restated Limited Liability Company HTML 338K
Agm'T of Axle Holdings Ii, LLC
147: EX-10.25 Amendment to Amend & Rest. Limited Liability Co. HTML 65K
Agm'T of Axle Holdings Ii, LLC
148: EX-10.26 First Amend. to Amend & Rest. Ltd. Liability Co. HTML 69K
Agm'T of Axle Holdings Ii, LLC
149: EX-10.27 2007 Annual Incentive Program for Kar Holdings HTML 71K
150: EX-10.28 Tax Sharing Agreement HTML 168K
151: EX-10.29 Trust Indenture HTML 311K
127: EX-10.3 Assumption Agreement HTML 108K
152: EX-10.30 Bond Purchase Agreement HTML 152K
153: EX-10.31 Lease Agreement HTML 272K
154: EX-10.32 Amended and Restated Purchase and Sale Agreement HTML 239K
155: EX-10.33 Amendment No. 1 to Amended and Restated Purchase HTML 75K
and Sale Agreement
156: EX-10.34 Amendment No. 2 to Amended and Restated Purchase HTML 70K
and Sale Agreement
157: EX-10.35 Amendment No. 3 to Amended and Restated Purchase HTML 72K
and Sale Agreement
158: EX-10.36 Third Amended and Restated Receivables Purchase HTML 865K
Agreement
128: EX-10.4 Intellectual Property Security Agreement HTML 127K
129: EX-10.5 Shareholders Agreement HTML 193K
130: EX-10.8 Financial Advisory Agreement (Kelso & Company, HTML 70K
L.P.)
131: EX-10.9 Conversion Option Plan of Kar Holdings, Inc. HTML 105K
159: EX-12.1 Statement of Computation of Ratio of Earnings to HTML 103K
Fixed Charges
160: EX-21.1 Subsidiaries of Kar Holdings, Inc. HTML 81K
161: EX-23.1 Consent of Kpmg LLP HTML 60K
162: EX-23.2 Consent of Pricewaterhousecoopers LLP HTML 58K
163: EX-25.1 Form T-1 (Floating Rate Senior Notes) HTML 132K
164: EX-25.2 Form T-1 (Fixed Rate Senior Notes) HTML 130K
165: EX-25.3 Form T-1 (Senior Subordinated Notes) HTML 130K
166: EX-99.1 Form of Letter to Clients HTML 71K
167: EX-99.2 Form of Letter to Brokers, Dealers HTML 66K
| Amended and Restated Operating Agreement for ADESA Atlanta, LLC, as amended |
Exhibit 3.16
AMENDED AND RESTATED
OPERATING AGREEMENT
FOR
ADESA ATLANTA, LLC
Effective as of
| Page | ||||
| ARTICLE I. PURPOSES |
1 | |||
| ARTICLE II. ORGANIZATIONAL MATTERS |
1 | |||
| Section 2.1 |
Formation |
1 | ||
| Section 2.2 |
Principal Office |
1 | ||
| Section 2.3 |
Registered Office and Registered Agent |
1 | ||
| Section 2.4 |
Duration |
1 | ||
| ARTICLE III. MEMBERS AND CAPITAL STRUCTURE |
2 | |||
| Section 3.1 |
Name and Address of Member |
2 | ||
| Section 3.2 |
Capital Contributions |
2 | ||
| Section 3.3 |
Additional Capital |
2 | ||
| Section 3.4 |
Capital Accounts |
2 | ||
| Section 3.5 |
Member Loans or Services |
2 | ||
| Section 3.6 |
Admission of Additional Members |
2 | ||
| ARTICLE IV. GOVERNANCE OF THE COMPANY |
3 | |||
| Section 4.1 |
Management by the Member |
3 | ||
| Section 4.2 |
Action by the Company |
3 | ||
| Section 4.3 |
Delegation of Certain Management Authority |
3 | ||
| ARTICLE V. ACCOUNTING AND RECORDS |
3 | |||
| Section 5.1 |
Records and Accounting |
3 | ||
| Section 5.2 |
Access to Records |
3 | ||
| Section 5.3 |
Annual Tax Information |
3 | ||
| Section 5.4 |
Accounting Decisions |
3 | ||
| Section 5.5 |
Federal Income Tax Elections |
4 | ||
| ARTICLE VI. ALLOCATIONS AND DISTRIBUTIONS |
4 | |||
| Section 6.1 |
Allocation of Net Income, Net Loss or Capital Gains |
4 | ||
| Section 6.2 |
Distributions |
4 | ||
| ARTICLE VII. TRANSFERS OF INTERESTS |
4 | |||
| Section 7.1 |
Transferability |
4 | ||
| ARTICLE VIII. DISSOCIATION OF A MEMBER |
4 | |||
| Section 8.1 |
Dissociation |
4 | ||
| ARTICLE IX. DISSOLUTION AND WINDING UP |
4 | |||
| Section 9.1 |
Dissolution |
4 | ||
- i -
| Section 9.2 |
Winding Up |
5 | ||
| Section 9.3 |
Distribution of Assets |
5 | ||
| ARTICLE X. AMENDMENTS |
5 | |||
| Section 10.1 |
Amendments |
5 | ||
| ARTICLE XI. MISCELLANEOUS |
5 | |||
| Section 11.1 |
Complete Agreement |
5 | ||
| Section 11.2 |
Governing Law |
6 | ||
| Section 11.3 |
Binding Effect; Conflicts |
6 | ||
| Section 11.4 |
Headings; Interpretation |
6 | ||
| Section 11.5 |
Severability |
6 | ||
| Section 11.6 |
Additional Documents and Acts |
6 | ||
| Section 11.7 |
No Third Party Beneficiary |
6 | ||
| Section 11.8 |
Notices |
6 | ||
| Section 11.9 |
Title to Company Property |
7 | ||
| Section 11.10 |
No Remedies Exclusive |
7 | ||
| Section 11.11 |
Incorporated Schedule and Exhibits |
7 | ||
- ii -
OPERATING AGREEMENT FOR
ADESA ATLANTA, LLC
THIS OPERATING AGREEMENT (this “Agreement”) is made and entered into as of this 1st day of January, 2004 (the “Effective Date”), by and between ADESA Atlanta, LLC, a New Jersey limited liability company (the “Company”), and ADESA New Jersey, Inc., a New Jersey corporation (the “Member”), as the sole initial member of the Company. The Company was organized as a limited liability company under the New Jersey Limited Liability Company Act (the “Act”). Certain defined terms used in this Agreement are set forth in Schedule I (Schedule of Definitions) attached hereto and made a part hereof. In consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, and intending to be legally bound hereby, the undersigned parties hereby agree as follows:
ARTICLE I.
PURPOSES
As set forth in the Articles of Organization, the purposes of the Company are to engage in and do any act in furtherance of any and all lawful businesses and activities for which limited liability companies may be formed under the Act.
ARTICLE II.
ORGANIZATIONAL MATTERS
Section 2.1. Formation. The Company was formed pursuant to the Act upon the filing of a Certificate of Formation with the New Jersey Department of the Treasury on August 10, 2000. The rights and obligations of the Member and the Company shall be as provided under the Act, the Certificate and this Agreement. The Member agrees to each of the provisions of the Certificate.
Section 2.2. Principal Office. The principal office of the Company shall be at 310 E. 96th Street, Ste. 400, Indianapolis, IN 46240. After March 15, 2004, the principal office of the Company shall be at 13085 Hamilton Crossing Boulevard, Carmel, IN 46032 or such other place or places as may be determined by the Member from time to time.
Section 2.3. Registered Office and Registered Agent. The Company’s registered office shall be 820 Bear Tavern Road, West Trenton, NJ 08628 and the name of its initial registered agent shall be the Corporation Trust Company. The Company may designate another registered office or agent at any time by following the procedures set forth in the Act.
Section 2.4. Duration. The existence of the Company shall continue in perpetuity, unless the Company is dissolved in accordance with Article IX or the Act.
ARTICLE III.
MEMBERS AND CAPITAL STRUCTURE
Section 3.1. Name and Address of Member. The name of the Member and its last known business, residence or mailing address is listed on the attached Exhibit A. The Member shall update Exhibit A from time to time as necessary to accurately reflect the information therein.
Section 3.2. Capital Contributions. The initial Capital Contribution to the Company of the Member is set forth on Exhibit A.
Section 3.3. Additional Capital. The Member shall not be obligated to make any Capital Contributions other than the initial Capital Contributions specified in Section 3.2.
Section 3.4. Capital Accounts.
(a) An individual capital account (the “Capital Account”) shall be established and maintained on behalf of the Member. The Capital Account of the Member shall consist of (i) the amount of cash the Member has contributed to the Company, plus (ii) the fair market value of any property the Member has contributed to the Company, net of any liabilities assumed by the Company or to which such property is subject, plus (iii) the amount of profits or income (including tax-exempt income) allocated to the Member, less (iv) the amount of losses and deductions allocated to the Member, less (v) the amount of all cash distributed to the Member, less (vi) the fair market value of any property distributed to the Member, net of any liability assumed by such Member or to which such property is subject, less (vii) the Member’s share of any other expenditures which are not deductible by the Company for federal income tax purposes or which are not allowable as additions to the basis of Company property, and (viii) subject to such other adjustments as may be required under the Code.
(b) The Member shall not have any liability or obligation to restore a negative or deficit balance in its Capital Account.
Section 3.5. Member Loans or Services. Loans or services by the Member to the Company shall not be considered Capital Contributions unless otherwise designated by the Member.
Section 3.6. Admission of Additional Members. The Member may admit Additional Members to the Company, who will be entitled to participate in the rights of Members as described herein, with admission thereof on such terms as are determined by the Member. Any such Additional Members shall be allocated net income, gains, losses, deductions and credits by such method as may be provided in this Agreement or any successor agreement hereto.
- 2 -
ARTICLE IV.
GOVERNANCE OF THE COMPANY
Section 4.1. Management by the Manager. The management of the business and affairs of the Company is vested in the manager(s). The manager(s) shall be least one but not more than eleven in number unless changed by amendment.
Section 4.2. Action by the Company. The Company shall act only by or under the authority of its member or the manager(s).
Section 4.3. Delegation of Certain Management Authority. The manager(s) may delegate to one or more officers of the Company or one or more employees of the Company any management responsibility or authority. The manager(s) may create such offices, appoint such officers and delegate thereto such responsibility or authority as it determines to be appropriate.
ARTICLE V.
ACCOUNTING AND RECORDS
Section 5.1. Records and Accounting. The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with the accounting methods elected to be followed by the Company for federal income tax purposes. The books and records of the Company shall reflect all Company transactions and shall be appropriate and adequate for the Company’s business. The fiscal year of the Company for financial reporting and for federal income tax purposes shall be the calendar year.
Section 5.2. Access to Records. The books and records of the Company, to the extent required by the Act, shall be maintained at the Company’s Principal Office, and the Member and its duly authorized representatives shall have access to where they are located and have the right to inspect and copy them during ordinary business hours.
Section 5.3. Annual Tax Information. The Company shall use its best efforts to deliver to the Member within 90 days after the end of each fiscal year all information necessary for the preparation of the Member’s federal and state income tax returns. The Company shall also use its best efforts to prepare, within 90 days after the end of each fiscal year, a financial report of the Company for such fiscal year containing a balance sheet as of the last day of the year then ended, an income statement for the year then ended, a statement of sources and applications of funds, and a statement of reconciliation of the Capital Account of the Member.
Section 5.4. Accounting Decisions. All decisions as to accounting matters, except as otherwise specifically set forth in this Agreement, shall be made by the Member. The Member may rely upon the advice of its accountants as to whether such decisions are in accordance with accounting methods followed for federal income tax purposes.
- 3 -
Section 5.5. Federal Income Tax Elections. The Member shall make all elections for federal income tax purposes.
ARTICLE VI.
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1. Allocation of Net Income, Net Loss or Capital Gains. The net income, net loss, or capital gains of the Company for each fiscal year of the Company shall be allocated 100% to the Member.
Section 6.2. Distributions. Cash or other property shall be distributed to the Member at such time as the Member shall determine.
ARTICLE VII.
TRANSFERS OF INTERESTS
Section 7.1. Transferability. The Member may Transfer all or any portion of its Interest to another Person at any time. If the Member Transfers its entire Interest to another Person and such Person is admitted as an Additional Member of the Company in accordance with Section 3.6, the Member shall cease to be a Member and shall not have any power to exercise any rights of a Member.
ARTICLE VIII.
DISSOCIATION OF A MEMBER
Section 8.1. Dissociation. The Member ceases to be a Member upon the occurrence of either of the following events (each an “Event of Dissociation”):
(a) the Member voluntarily withdraws from the Company; or
(b) the Member Transfers its entire Interest to another Person and such Person is admitted as an Additional Member of the Company in accordance with the terms of Section 3.6.
ARTICLE IX.
DISSOLUTION AND WINDING UP
Section 9.1. Dissolution. The Company shall be dissolved and its affairs wound up on the first of the following to occur:
(a) A determination by the Member that the Company shall be dissolved; or
(b) At such earlier time as may be provided by applicable law.
- 4 -
Notwithstanding any other provision of this Agreement or the Act, the Member hereby agrees that the business of the Company shall be continued upon the occurrence of an Event of Dissociation and that the Company shall not be dissolved upon the occurrence of an Event of Dissociation other than pursuant to the terms of Section 9.1(a).
Section 9.2. Winding Up. Upon dissolution, the Member shall proceed to wind up and liquidate the business and affairs of the Company, and the Company may only carry on business that is appropriate to wind up and liquidate the business and affairs of the Company, including the following: (a) collecting the Company’s assets; (b) disposing of properties that will not be distributed in kind to the Member; (c) discharging or making provision for discharging liabilities; (d) distributing the remaining property to the Member; and (e) doing every other act necessary to wind up and liquidate the business and affairs of the Company. The Member shall follow the procedure for disposing of known claims set forth by the Act.
Section 9.3. Distribution of Assets. Upon the winding up of the Company, the assets shall be distributed as follows:
(a) To creditors, including the Member if it is a creditor of the Company to the extent permitted by law, in the order of priority as provided by law to satisfy the liabilities of the Company whether by payment or by the establishment of adequate reserves, excluding liabilities for distributions to the Member pursuant to Article VI;
(b) To the Member to repay any loans to the Company or to satisfy any liabilities for distributions pursuant to Article VI which remain unpaid; and
(c) To the Member in respect of its Capital Account after giving effect to all contributions, distributions and allocations for all periods.
ARTICLE X.
AMENDMENTS
Section 10.1. Amendments. The Member and the Company may amend this Agreement from time to time by written instrument reflecting such amendment.
ARTICLE XI.
MISCELLANEOUS
Section 11.1. Complete Agreement. This Agreement and the Articles constitute the complete and exclusive statement of agreement between the Member and the Company with respect to its subject matter. This Agreement and the Articles replace and supersede all prior agreements by and among the Member and the Company. This Agreement and the Articles supersede all prior written and oral statements and no representation, statement, or condition or warranty not contained in this Agreement or the Articles will be binding on the parties or have any force or effect whatsoever.
- 5 -
Section 11.2. Governing Law. This Agreement and the rights of the parties under this Agreement will be governed by, interpreted, and enforced in accordance with the laws of the State of Louisiana.
Section 11.3. Binding Effect; Conflicts. This Agreement will be binding upon and inure to the benefit of the parties, and their respective distributees, successors and assigns. This Agreement is subject to, and governed by, the Act and the Articles. In the event of a direct conflict between the provisions of this Agreement and the mandatory provisions of the Act or the provisions of the Articles, the provisions of the Act or the Articles, as the case may be, will be controlling.
Section 11.4. Headings; Interpretation. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. The singular shall include the plural, and the masculine gender shall include the feminine and neuter, and vice versa, as the context requires.
Section 11.5. Severability. If any provision of this Agreement is held to be illegal, invalid, unreasonable, or unenforceable under the present or future laws effective during the term of this Agreement, such provision will be fully severable; this Agreement will be construed and enforced as if such illegal, invalid, unreasonable, or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, unreasonable, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid, unreasonable, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, unreasonable, or unenforceable provision as may be possible and be legal, valid, reasonable, and enforceable.
Section 11.6. Additional Documents and Acts. Each party agrees to promptly execute and deliver such additional documents, statements of interest and holdings, designations, powers of attorney, and other instruments, and to perform such additional acts, as the other party may determine to be necessary, useful or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement, and to comply with all applicable laws, rules and regulations.
Section 11.7. No Third Party Beneficiary. This Agreement is made solely and specifically among and for the benefit of the parties and their respective successors and assigns. This Agreement is expressly not intended for the benefit of any creditor of the Company or any other third party. No creditor or other third party will have any rights, interest, or claims under the Agreement or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.
Section 11.8. Notices. Any notice to be given or to be served upon the Company or the Member in connection with this Agreement must be in writing and will be deemed to have been given and received when delivered to the address specified by the party to receive the notice. Such notices will be given to the Member at the address specified on Exhibit A. Any party may, at any time by giving five days’ prior written notice to the other party, designate any other address in substitution of the foregoing address to which such notice will be given.
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Section 11.9. Title to Company Property. Legal title to all property of the Company will be held and conveyed in the name of the Company.
Section 11.10. No Remedies Exclusive. To the extent any remedies are provided herein for a breach of this Agreement, the Articles or the Act, such remedies shall not be exclusive of any other remedies the aggrieved party may have, at law or in equity.
Section 11.11. Incorporated Schedule and Exhibits. The following Schedule and Exhibit are attached to and/or have been identified as Schedules and Exhibits to this Agreement and are incorporated in this Agreement by reference as if fully set forth herein:
Schedule I to Operating Agreement. Schedule of Definitions.
Exhibit A to Operating Agreement. Name and Address of Member and Capital Contribution.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth opposite their signatures, to be effective on the Effective Date.
| COMPANY | ||||||||
| ADESA Atlanta, LLC | ||||||||
| Date: January 5, 2004 | By: | /s/ Michelle Mallon | ||||||
| Michelle Mallon, Assistant Secretary | ||||||||
| MEMBER | ||||||||
| ADESA New Jersey, Inc. | ||||||||
| Date: January 5, 2004 | By: | /s/ Michelle Mallon | ||||||
| Michelle Mallon, Assistant Secretary | ||||||||
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Schedule I
to
Operating Agreement
Schedule of Definitions
The terms used in this Agreement with their initial letters capitalized shall have, unless the context otherwise requires or unless otherwise expressly provided in this Agreement, the meanings specified in this Schedule I. Any term used but not defined in this Agreement shall have the meanings set forth in the Act. The singular shall include the plural, and the masculine gender shall include the feminine and neuter, and vice versa, as the context requires. When used in this Agreement, the following terms shall have the meanings set forth below:
“Act” means the Louisiana Business Corporation Law, as the same may be amended from time to time.
“Additional Member” means any individual or Entity admitted as a Member pursuant to Section 3.6.
“Agreement” means this Operating Agreement of the Company, as originally executed and as amended from time to time.
“Capital Contribution” means the total value of cash and agreed fair market value of property contributed and agreed to be contributed to the Company by the Member, as shown on Exhibit A, as the same may be amended from time to time.
“Code” means the Internal Revenue Code of 1986, as amended. All references in this Agreement to sections of the Code shall include any corresponding provision or provisions of any succeeding law.
“Company” means shall have the meaning set forth in the preamble to this Agreement.
“Entity” means any association, corporation, general partnership, limited partnership, limited liability partnership, limited liability company, joint stock association, joint venture, firm, trust, business trust, cooperative, or foreign associations of like structure.
“Event of Dissociation” means any of the events listed in Section 8.1 upon which the Member ceases to be a Member.
“Interest” means the entire ownership interest of the Member in the Company at any particular time, including the right of the Member to any and all benefits to which the Member may be entitled as provided in this Agreement and under the Act, together with the obligations of the Member to comply with all of the terms and provisions of this Agreement.
“Member” or “Members” refers to A.D.E. of Ark-La-Tex, Inc. as the sole Member of the Company and any Additional Members admitted to the Company.
Schedule I -1
“Operating Agreement” means this Agreement.
“Person” means an individual or an Entity.
“Principal Office” means the address established pursuant to Section 2.2.
“Transfer” means any assignment and includes any gift, sale, exchange, assignment, conveyance, alienation or other transfer, whether voluntary or involuntary, and includes any Transfer to a receiver, bankruptcy trustee, judgment creditor, lienholder, holder of a security interest, pledge or other encumbrance, and Transfer upon judicial order or other legal process.
Schedule I - 2
Exhibit A
To Operating Agreement
Name and Address of Member and Capital Contribution
(As of January 1, 2004)
| Member |
Capital Contribution | Percentage Interest | ||
| ADESA New Jersey, Inc., 310 E. 96th
Street, |
Real and Personal Property valued at $36,175,350 |
100% |
Name and Address of Member and Capital Contribution
(As of March 15, 2004)
| Member |
Capital Contribution | Percentage Interest | ||
| ADESA New Jersey, Inc.13085 Hamilton |
Real and Personal Property valued at $36,175,350 |
100% |
Exhibit A
AMENDMENT TO
OPERATING AGREEMENT OF
ADESA ATLANTA, LLC
The Member and the Company amends Article III of the Agreement as follows:
| 1. | Article III of the Agreement shall be amended by adding Section 3.7. and Section 3.8. |
| 2. | Section 3.7. shall read as follows: |
“Section 3.7. Certificate of Membership Interest
(a) Recognition of Member. The Company is entitled to recognize a person registered on its books as the owner of the specified percentage of membership interest of the Company as having the exclusive right to receive distributions and to vote notwithstanding any other person’s equitable or other claim to, or interest in, such membership interest.
(b) Transfer of Membership Interests. Membership interests are transferable only on the books of the Company, subject to any transfer restrictions imposed by the Articles of Organization, this Agreement, or an agreement among Members and the Company. Membership interests may be so transferred upon presentation of the certificate representing the membership interests, endorsed by the appropriate person or persons, and accompanied by (i) reasonable assurance that those endorsements are genuine and effective, and (ii) a request to register the transfer.
(c) Certificates. Each Member is entitled to a certificate signed (manually or in facsimile) by the Managers setting forth (i) the name of the Company and that it was organized under New Jersey law, (ii) the name of the person to whom issued, and (iii) the percentage of membership interest represented. The Managers shall prescribe the form of the certificate.
(d) Lost or Destroyed Certificates. A new certificate may be issued to replace a lost or destroyed certificate. Unless waived by the Managers, the Member in whose name the certificate was issued shall make an affidavit or affirmation of the fact that his or its certificate is lost or destroyed, shall advertise the loss or destruction in such manner as the Managers may require, and shall give the Company a bond of indemnity in the amount and form which the Managers may prescribe.”
| 3. | Section 3.8. shall read as follows: |
“Section 3.8. Membership Interests Shall Be Securities. The Company hereby irrevocably elects that all membership interests in the Company shall be securities governed by Article 8 of the Uniform Commercial Code as in effect in the state of its jurisdiction of formation. Each certificate evidencing the membership interests of the Company shall bear the following legend: “This certificate evidences an interest in [insert name of entity] and shall be a security for purposes of Article 8 of the Uniform Commercial Code as in effect in the state of its jurisdiction of formation.” This provision shall not be amended, and any purported amendment to this provision, shall not take effect until all outstanding certificates have been surrendered for cancellation.”
| 4. | Except as hereby amended, the Agreement is hereby ratified and confirmed in all other respects and shall remain in full force and effect. |
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the 12 day of June, 2007.
| “MEMBER” | “COMPANY” | |||||||
| ADESA NEW JERSEY, LLC | ADESA ATLANTA, LLC | |||||||
| By: | /s/ James P. Hallett | By: | /s/ Paul J. Lips | |||||
| James P. Hallett | Paul J. Lips | |||||||
| President & CEO | Manager | |||||||
| This ‘S-4’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed as of: | 1/25/08 | |||
| Filed on: | 1/24/08 | |||
| 3/15/04 | ||||
| 1/5/04 | ||||
| 1/1/04 | 3 | |||
| 8/10/00 | ||||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/21/24 OPENLANE, Inc. 10-K 12/31/23 112:14M 11/02/23 OPENLANE, Inc. 10-Q 9/30/23 68:7.4M 8/03/23 OPENLANE, Inc. 10-Q 6/30/23 66:7.3M 5/03/23 OPENLANE, Inc. 10-Q 3/31/23 60:6.8M 3/22/23 OPENLANE, Inc. 10-Q/A 9/30/22 62:7.2M 3/22/23 OPENLANE, Inc. 10-Q/A 6/30/22 61:7M 3/22/23 OPENLANE, Inc. 10-Q/A 3/31/22 61:6.1M 3/09/23 OPENLANE, Inc. 10-K 12/31/22 111:15M 11/02/22 OPENLANE, Inc. 10-Q 9/30/22 62:9.3M 8/03/22 OPENLANE, Inc. 10-Q 6/30/22 58:7.4M 5/04/22 OPENLANE, Inc. 10-Q 3/31/22 59:6.4M 2/23/22 OPENLANE, Inc. 10-K 12/31/21 110:15M 11/03/21 OPENLANE, Inc. 10-Q 9/30/21 57:6.9M 8/04/21 OPENLANE, Inc. 10-Q 6/30/21 55:6.8M 5/05/21 OPENLANE, Inc. 10-Q 3/31/21 57:5.6M 2/18/21 OPENLANE, Inc. 10-K 12/31/20 105:14M 11/04/20 OPENLANE, Inc. 10-Q 9/30/20 68:9.7M 8/05/20 OPENLANE, Inc. 10-Q 6/30/20 67:8.8M |