PLURAL AND VICE-VERSA.
ALL REFERENCES TO ARTICLES AND
SECTIONS REFER TO ARTICLES AND SECTIONS OF THIS AGREEMENT, AND ALL REFERENCES TO
SCHEDULES ARE TO SCHEDULES ATTACHED TO THIS AGREEMENT, EACH OF WHICH IS MADE A
PART OF THIS AGREEMENT FOR ALL PURPOSES.
THE TERM "INCLUDING" MEANS "INCLUDING,
WITHOUT LIMITATION."
ANY ACCOUNTING TERM NOT OTHERWISE DEFINED HAS THE MEANING
ASSIGNED TO IT IN ACCORDANCE WITH GAAP.
FOR THE PURPOSE OF THIS AGREEMENT, ANY
DEFINITION INCORPORATING, BY REFERENCE TO THE CODE OR THE REGULATIONS, THE TERM
"PARTNER" OR "PARTNERSHIP" SHALL MEAN "MEMBER" OR "COMPANY", RESPECTIVELY.
WORDS SUCH AS "HEREIN," "HEREINAFTER," "HEREOF," AND "HEREUNDER" REFER TO THIS
AGREEMENT AS A WHOLE, UNLESS THE CONTEXT OTHERWISE REQUIRES.
1.3
FINANCIAL DEFINITIONS.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, ALL FINANCIAL DEFINITIONS (INCLUDING, WITHOUT
LIMITATION, THE DEFINITIONS OF "EBITDA," "AVAILABLE CASH FLOW," "CAPITAL
EXPENDITURES," "CURRENT ASSETS," "CURRENT LIABILITIES," "INTEREST EXPENSE," "NET
INCOME" AND "WORKING CAPITAL") SHALL BE DETERMINED SOLELY WITH RESPECT TO THE
COMPANY IN ACCORDANCE WITH GAAP, BUT SHALL NOT BE DETERMINED ON A CONSOLIDATED
BASIS.
ARTICLE II
THE COMPANY
2.1
ORGANIZATION.
THE INITIAL MEMBERS HEREBY
AGREE TO FORM A LIMITED LIABILITY COMPANY PURSUANT TO THE PROVISIONS OF THE ACT
AND UPON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
EACH OF THE
INITIAL MEMBERS SHALL BE DEEMED ADMITTED AS A MEMBER OF THE COMPANY
8
UPON SUCH MEMBER'S EXECUTION OF THIS AGREEMENT.
2.2
COMPANY NAME.
THE NAME OF THE LIMITED
LIABILITY COMPANY FORMED HEREBY SHALL INITIALLY BE "NASDI, LLC".
ALL BUSINESS
OF THE COMPANY SHALL BE CONDUCTED IN SUCH NAME OR SUCH OTHER NAME AS THE BOARD
OF MANAGERS MAY, FROM TIME TO TIME, DETERMINE.
THE COMPANY SHALL HOLD ALL OF
ITS PROPERTY IN THE NAME OF THE COMPANY AND NOT IN THE NAME OF ANY MANAGER,
OFFICER OR MEMBER.
2.3
PURPOSE.
THE PURPOSE AND BUSINESS OF THE
COMPANY SHALL BE TO CONDUCT AND TRANSACT ANY AND ALL LAWFUL BUSINESS FOR WHICH
LIMITED LIABILITY COMPANIES MAY BE ORGANIZED UNDER THE ACT.
2.4
POWERS.
THE COMPANY SHALL POSSESS AND MAY
EXERCISE ALL THE POWERS AND PRIVILEGES GRANTED BY THE ACT, ALL OTHER APPLICABLE
LAW OR BY THIS AGREEMENT, TOGETHER WITH ANY POWERS INCIDENTAL THERETO, SO FAR AS
SUCH POWERS AND PRIVILEGES ARE NECESSARY OR CONVENIENT TO THE CONDUCT, PROMOTION
AND ATTAINMENT OF THE BUSINESS, PURPOSES OR ACTIVITIES OF THE COMPANY.
2.5
PRINCIPAL PLACE OF BUSINESS.
THE PRINCIPAL
PLACE OF BUSINESS OF THE COMPANY SHALL BE 2122 YORK ROAD, OAK BROOK, IL 60523,
OR SUCH OTHER LOCATION AS MAY BE AGREED BY THE BOARD OF MANAGERS FROM TIME TO
TIME.
2.6
TERM.
THE TERM OF THE COMPANY SHALL BE
PERPETUAL UNLESS AND UNTIL THE COMPANY IS DISSOLVED PURSUANT TO THE ACT OR AS
SET FORTH HEREIN.
THE EXISTENCE OF THE COMPANY AS A SEPARATE LEGAL ENTITY SHALL
CONTINUE UNTIL CANCELLATION OF THE CERTIFICATE IN THE MANNER REQUIRED BY THE
ACT.
2.7
FILINGS; AGENT FOR SERVICE OF PROCESS.
(A)
THE CERTIFICATE HAS BEEN FILED IN THE OFFICE OF THE SECRETARY OF
STATE OF THE STATE OF