COMPANY AGREEMENT FOR CITI TEEVEE, LLC
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COMPANY AGREEMENT
FOR
CITI TEEVEE,Β LLC
Β Β Β Β Β Β Β Β This Company Agreement (the "Agreement") is made and entered into and effective JulyΒ Β Β Β Β Β Β , 1999 by and among the CITI TEEVEE,Β LLC (the "LLC") and ODYSSEY HOLDINGS,Β LLC., a DelawareΒ LLC ("ODYSSEY").
RΒ EΒ CΒ IΒ TΒ AΒ LΒ S
Β Β Β Β Β Β Β Β ODYSSEY does hereby formΒ a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act (the "Statute").
Β Β Β Β Β Β Β Β 1.1Β Β Β Β ADJUSTED CAPITAL ACCOUNT DEFICIT.Β Β Β Β "Adjusted Capital Account Deficit" means the deficit balance, if any, in the Member's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
Β Β Β Β Β Β Β Β 1.1.1Β Β increase such Capital Account by any amounts which the Member is obligated to contribute to theΒ LLC (pursuant to the terms of this Agreement or otherwise) or is deemed to be obligated to contribute to theΒ LLC pursuant to Regulations SectionsΒ 1.704-2(g)(1) and 1.704-2(i)(5); and
Β Β Β Β Β Β Β Β 1.1.2Β Β reduce such Capital Account by the amount of the items described in Regulations SectionsΒ 1.704-1(b)(2)(ii)(d)(4), (5)Β and (6).
Β Β Β Β Β Β Β Β 1.2Β Β Β Β AFFILIATE.Β Β Β Β "Affiliate" means, when used with reference to a specified Person, (a)Β the Principal of the Person, (b)Β any Person directly or indirectly controlling, controlled by or under common control with such Person, (c)Β any Person owning or controlling 10% or more of the outstanding voting interests of such Person, and (d)Β any relative or spouse of such Person.
Β Β Β Β Β Β Β Β 1.3Β Β Β Β AGREEMENT.Β Β Β Β "Agreement" means this Limited Liability Company Agreement, as originally executed and as amended from time to time, as the context requires. Words such as "herein," "hereinafter," "hereto," "hereby" and "hereunder," when used with reference to this Agreement, refer to this Agreement as a whole, unless the context otherwise requires.
Β Β Β Β Β Β Β Β 1.4Β Β Β Β ARTICLES OF ORGANIZATION.Β Β Β Β "Articles of Organization" means the Certificate of Formation of the Company filed with the Delaware Secretary of State for the purpose of forming theΒ LLC.
Β Β Β Β Β Β Β Β 1.5Β Β Β Β AVAILABLE CASH FLOW.Β Β Β Β "Available Cash Flow" means, with respect to any Fiscal Year or other period, the sum of all cash receipts of theΒ LLC from any and all sources, less all cash disbursements (including loan repayments, capital improvements and replacements) and a reasonable allowance for Reserves, contingencies and anticipated obligations as determined by the Managers.
Β Β Β Β Β Β Β Β 1.6Β Β Β Β BUSINESS OF THEΒ LLC.Β Β Β Β "Business of theΒ LLC" shall have the meaning set forth in SectionΒ 2.6 hereof.
Β Β Β Β Β Β Β Β 1.7Β Β Β Β CAPITAL ACCOUNT.Β Β Β Β "Capital Account" of the member shall have the meaning set forth in SectionΒ 3.5 hereof.
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Β Β Β Β Β Β Β Β 1.8Β Β Β Β CAPITAL CONTRIBUTION.Β Β Β Β "Capital Contribution" shall have the meaning set forth in ArticleΒ 3 hereof.
Β Β Β Β Β Β Β Β 1.9Β Β Β Β CODE.Β Β Β Β "Code" means the Internal Revenue Code of 1986, as amended (or any corresponding provision or provisions of any succeeding law),
Β Β Β Β Β Β Β Β 1.10Β Β Β Β DEPRECIATION.Β Β Β Β "Depreciation" means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery reduction allowable with respect to an asset for such Fiscal Year or other period.
Β Β Β Β Β Β Β Β 1.11Β Β Β Β DISSOLUTION.Β Β Β Β "Dissolution" means (i)Β when used with reference to theΒ LLC, the earlier of (a)Β the date upon which theΒ LLC is terminated under the Statute, or any similar provision enacted in lieu thereof, or (b)Β the date upon which theΒ LLC ceases to be a going concern, and (ii)Β when used with reference to the Member, the earlier of (a)Β the date upon which there is a Dissolution of theΒ LLC or (b)Β the date upon which the Member's entire interest in theΒ LLC is terminated by means of a distribution or series of distributions by theΒ LLC to the Member.
Β Β Β Β Β Β Β Β 1.12Β Β Β Β FISCAL YEAR.Β Β Β Β "Fiscal Year" means the period of JanuaryΒ 1 to and including DecemberΒ 31.
Β Β Β Β Β Β Β Β 1.13Β Β Β Β LLC.Β Β Β Β "LLC" means Citi Teevee,Β LLC.
Β Β Β Β Β Β Β Β 1.14Β Β Β Β LLC LOANS.Β Β Β Β "LLC Loans" shall refer to any loans or advances made by the Member to theΒ LLC at the Member's option, without obligation to so do, to the extent theΒ LLC does not have sufficient resources (assets, borrowings or otherwise) to meet itsΒ LLC obligations. SuchΒ LLC Loans shall bear interest at the rate agreed to between the Member and the Managers.
Β Β Β Β Β Β Β Β 1.15Β Β Β Β MANAGERS.Β Β Β Β "Manager" means the Person or Persons appointed to manage theΒ LLC pursuant to SectionΒ 6.1 of this Agreement. At any time that the Member shall have appointed more than one Manager, all such Persons so elected shall be referred to as the "Managers."
Β Β Β Β Β Β Β Β 1.16Β Β Β Β MEMBER.Β Β Β Β "Member" means ODYSSEY.
Β Β Β Β Β Β Β Β 1.17Β Β Β Β NET PROFITS AND NET LOSS.Β Β Β Β "Net Profits" and "Net Loss" mean, for each Fiscal Year or other period, an amount equal to theΒ LLC's taxable income or loss for such year or period, determined in accordance with Code SectionΒ 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code SectionΒ 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
Β Β Β Β Β Β Β Β 1.17.1Β Β Any income of theΒ LLC that is exempt from federal income tax and not otherwise taken into account in computing Net Profits or Net Loss shall be added to such taxable income or loss;
Β Β Β Β Β Β Β Β 1.17.2Β Β Any expenditures of theΒ LLC described in Code SectionΒ 705(b)(2)(B) or treated as Code SectionΒ 705(b)(2)(B) expenditures pursuant to Regulations SectionΒ 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Net Profits or Net Loss shall be subtracted from such taxable income or loss;
Β Β Β Β Β Β Β Β 1.17.3Β Β Gain or loss resulting from any disposition of Property with respect to which gain or loss is recognized for Federal income tax purposes shall be computed by reference to the fair marl-et value of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs from its fair market value;
Β Β Β Β Β Β Β Β 1.17.4Β Β In lieu of depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period, computed in accordance with the subsection hereof entitled "Depreciation"; and
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Β Β Β Β Β Β Β Β 1.17.5Β Β Notwithstanding any other provision of this subsection, any items of income, gain, loss or deduction which are specifically allocated shall not be taken into account in computing Net Profits or Net Loss.
Β Β Β Β Β Β Β Β 1.18Β Β Β Β PERSON.Β Β Β Β "Person" means an individual, partnership, limited partnership, corporation, trust, estate, association, limited liability company, or other entity, whether domestic or foreign.
Β Β Β Β Β Β Β Β 1.19Β Β Β Β PRINCIPAL.Β Β Β Β "Principal" means the natural Person who is in ultimate control of the Person.
Β Β Β Β Β Β Β Β 1.20Β Β Β Β PROPERTY.Β Β Β Β "Property" means all assets of theΒ LLC, both tangible and intangible, or any portion thereof.
Β Β Β Β Β Β Β Β 1.21Β Β Β Β REGULATIONS.Β Β Β Β "Regulations" means the federal income tax regulations promulgated by the Treasury Department under the Code, as such regulations may be amended from time to time. All references herein to a specific section of the Regulations shall be deemed also to refer to any corresponding provisions of succeeding Regulations.
Β Β Β Β Β Β Β Β 1.22Β Β Β Β RESERVES.Β Β Β Β "Reserves" means funds set aside from Capital Contributions or gross cash revenues as reserves. Such Reserves shall be maintained in amounts reasonably deemed sufficient by the Manager(s)for working capital and the payment of taxes, insurance, debt service, repairs, replacements, renewals, or other costs or expenses incident to the Business of theΒ LLC, or in the alternative, the Dissolution of theΒ LLC.
Β Β Β Β Β Β Β Β 1.23Β Β Β Β SECRETARY OF STATE.Β Β Β Β "Secretary of State" shall mean the Secretary of State of the State of Delaware.
Β Β Β Β Β Β Β Β 1.24Β Β Β Β STATUTE.Β Β Β Β "Statute" shall mean the Delaware Limited Liability Company Act as it may be amended from time to time.
Β Β Β Β Β Β Β Β 1.25Β Β Β Β TERM.Β Β Β Β "Term" shall have the meaning set forth in SectionΒ 2.5 hereof.
ARTICLEΒ 2
INTRODUCTORY MATTERS
Β Β Β Β Β Β Β Β 2.1Β Β Β Β FORMATION OFΒ LLC.Β Β Β Β The Member has formed theΒ LLC pursuant to the provisions of the Statute by filing Articles of Organization with the Secretary of State.
Β Β Β Β Β Β Β Β 2.2Β Β Β Β NAME.Β Β Β Β The name of theΒ LLC is Citi Teevee,Β LLC. The Member shall operate the Business of theΒ LLC under such name or use such other or additional names as the Member may deem necessary or desirable provided that: (i)Β no such name shall contain the words "bank," "insurance," "trust," "trustee," "incorporated," "inc.," "corporation." "corp.," or any similar name or variation thereof; (ii)Β the Manager(s) shall reasonably determine, before use of any such name, that theΒ LLC is entitled to use such name and will not by reason of such use infringe upon any rights of any other Person, or violate any applicable laws or governmental regulations; and (iii)Β the Member shall register such name under assumed or fictitious name statutes or similar laws of the states in which theΒ LLC operates.
Β Β Β Β Β Β Β Β 2.3Β Β Β Β PRINCIPAL OFFICE.Β Β Β Β TheΒ LLC shall maintain its principal place of business at the address set forth in SectionΒ 2.3 of ExhibitΒ A, or any other location designated by the Member.
Β Β Β Β Β Β Β Β 2.4Β Β Β Β AGENT FOR SERVICE OF PROCESS.Β Β Β Β The name and address of theΒ LLC's agent for service of process is as set forth in SectionΒ 2.4 of ExhibitΒ A.
Β Β Β Β Β Β Β Β 2.5Β Β Β Β TERM.Β Β Β Β The term of theΒ LLC ("Term") shall be thirty (30)Β years, commencing on the date of the filing of the Articles of Organization with the Delaware Secretary of State, unless theΒ LLC is terminated or dissolved sooner, in accordance with the provisions of this Agreement.
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Β Β Β Β Β Β Β Β 2.6Β Β Β Β BUSINESS AND PURPOSE OF THEΒ LLC.Β Β Β Β The purpose of theΒ LLC is to engage in any lawful activities for which anΒ LLC may be organized under the Statute, including, but not limited to those purposes set forth in SectionΒ 2.6 of ExhibitΒ A, provided that theΒ LLC shall not conduct any banking, insurance or trust company business.
ARTICLEΒ 3
MEMBERS AND CAPITAL CONTRIBUTIONS
Β Β Β Β Β Β Β Β 3.1Β Β Β Β NAMES AND ADDRESSES OF MEMBER.Β Β Β Β The name and address of the Member is as set forth in SectionΒ 1 of ExhibitΒ A.
Β Β Β Β Β Β Β Β 3.2Β Β Β Β CONTRIBUTIONS.Β Β Β Β The Member shall make those initial Capital Contributions as described in SectionΒ 1 of ExhibitΒ A.
Β Β Β Β Β Β Β Β 3.3Β Β Β Β ADDITIONAL CONTRIBUTIONS.Β Β Β Β Except as shall be expressly set forth herein, the Member shall not be required to (a)Β make any additional Capital Contributions, (b)Β make any loan, or (c)Β cause to be loaned any money or other assets to theΒ LLC.
Β Β Β Β Β Β Β Β 3.4Β Β Β Β RIGHTS WITH RESPECT TO CAPITAL.Β Β Β Β
Β Β Β Β Β Β Β Β 3.4.1Β Β LLC CAPITAL.Β Β Β Β The Member shall not have the right to withdraw or receive any return of, its Capital Contribution, and no Capita! Contribution may be returned in the form of property other than cash except as specifically provided herein.
Β Β Β Β Β Β Β Β 3.4.2Β Β NO INTEREST ON CAPITAL CONTRIBUTIONS.Β Β Β Β Except as expressly provided in this Agreement, no Capital Contribution of the Member shall bear any interest or otherwise entitle the contributing Member to any compensation for use of the contributed capital.
Β Β Β Β Β Β Β Β 3.4.3Β Β ESTABLISHMENT OF CAPITAL ACCOUNTS.Β Β Β Β A capital account ("Capital Account") shall be maintained for the Member. For book purposes, the Member's Capital Account will be separated into a contribution account and an income (loss) account and will be maintained according to generally accepted accounting principles. SectionΒ 3.6 below describes the appropriate accounting treatment for tax purposes of the Capital Account.
Β Β Β Β Β Β Β Β 3.5Β Β Β Β GENERAL RULES FOR ADJUSTMENT OF CAPITAL ACCOUNTS.Β Β Β Β
Β Β Β Β Β Β Β Β The Capital Account of the Member shall be:
Β Β Β Β Β Β Β Β 3.5.1Β Β INCREASES.Β Β Β Β Increased by:
Β Β Β Β Β Β Β Β Β Β (i)Β Β The Member's cash contributions;
Β Β Β Β Β Β Β Β Β (ii)Β Β The agreed fair market value of property contributed by the Member (net of liabilities secured by such contributed property that theΒ LLC is considered to assume or take subject to under Code SectionΒ 752);
Β Β Β Β Β Β Β Β (iii)Β Β All items ofΒ LLC income and gain (including income and gain exempt from tax) allocated to the Member pursuant to ArticleΒ 4 or other provisions of this Agreement; and
Β Β Β Β Β Β Β Β 3.5.2Β Β DECREASES.Β Β Β Β Decreased by:
Β Β Β Β Β Β Β Β Β Β (i)Β Β The amount of cash distributed to the Member;
Β Β Β Β Β Β Β Β Β (ii)Β Β The agreed fair market value of all actual and deemed distributions of property made to the Member pursuant to this Agreement (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to under Code SectionΒ 752);
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Β Β Β Β Β Β Β Β (iii)Β Β All items ofΒ LLC deduction and loss allocated to the Member pursuant to ArticleΒ 4 or other provisions of this Agreement.
Β Β Β Β Β Β Β Β 3.6Β Β Β Β SPECIAL RULES WITH RESPECT TO CAPITAL ACCOUNTS.Β Β Β Β
Β Β Β Β Β Β Β Β 3.6.1Β Β TIME OF ADJUSTMENT FOR CAPITAL CONTRIBUTIONS.Β Β Β Β For purposes of computing the balance in the member's Capital Account, no credit shall be given for any Capital Contribution which the Member is to make until such contribution is actually made. "Capital Contribution" refers to the total amount of cash and the agreed fair market value (net of liabilities) contributed to theΒ LLC by the Member and any subsequent contributions of cash and the agreed fair market value (net of liabilities) of any other property subsequently contributed to theΒ LLC by the Member.
Β Β Β Β Β Β Β Β 3.6.2Β Β INTENT TO COMPLY WITH TREASURY REGULATIONS.Β Β Β Β The foregoing provisions of SectionsΒ 3.6 and the other provisions of this Agreement relating to the maintenance of Capital Accounts, are intended to comply with Regulations SectionΒ 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations Section. To the extent such provisions are inconsistent with such Regulations Section or are incomplete with respect thereto, Capital Accounts shall be maintained in accordance with such Regulations Section.
ARTICLEΒ 4
ALLOCATION OF PROFITS AND LOSSES
Β Β Β Β Β Β Β Β 4.1Β Β Β Β FEES TO MEMBER OR AFFILIATES.Β Β Β Β Notwithstanding the provisions of SectionΒ 4.1, in the event that any fees, interest, or other amounts paid to the Member or any Affiliate thereof pursuant to this Agreement or any other agreement between theΒ LLC and the Member or Affiliate thereof providing for the payment of such amount, and deducted by theΒ LLC in reliance on SectionΒ 707(a) and/or 707(c) of the Code, are disallowed as deductions to theΒ LLC on its federal income tax return and are treated asΒ LLC distributions, then
Β Β Β Β Β Β Β Β 4.1.1Β Β Β Β the Net Profits or Net Loss, as the case may be, for the Fiscal Year in which such fees, interest, or other amounts were paid shall be increased or decreased, as the case may be, by the amount of such fees, interest, or other amounts that are treated asΒ LLC distributions; and
Β Β Β Β Β Β Β Β 4.1.2Β Β Β Β there shall he allocated to the Member to which (or to whose Affiliate) such fees, interest, or other amounts were paid, prior to the allocations pursuant to SectionΒ 4.1. an amount of gross income for the Fiscal Year equal to the amount of such fees, interest, or other amounts that are treated asΒ LLC distributions.
Β Β Β Β Β Β Β Β 4.2Β Β Β Β SECTIONΒ 704(c) ALLOCATION.Β Β Β Β Any item of income, gain, loss, and deduction with respect to any property (other than cash) that has been contributed by the Member to the capital of theΒ LLC and which is required or permitted to be allocated to the Member for income tax purposes under SectionΒ 704(c) of the Code so as to take into account the variation between the tax basis of such property and its fair market value at the time of its contribution shall be allocated to the Member solely for income tax purposes in the manner so required or permitted.
Β Β Β Β Β Β Β Β 5.1Β Β Β Β AVAILABLE CASH FLOW.Β Β Β Β Available Cash Flow of the shall be distributed to the Member in accordance with the following priority and agreements:
Β Β Β Β Β Β Β Β 5.1.1Β Β FIRST.Β Β Β Β To the Member, in the ratio of the principal loan balances outstanding, until all of the accrued but unpaid interest on allΒ LLC Loans, if any, has been paid, and then the principal amounts thereof.
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Β Β Β Β Β Β Β Β 5.1.2Β Β SECOND.Β Β Β Β To the Member as a distribution.
ARTICLEΒ 6
RIGHTS, DUTIES, OBLIGATIONS AND COMPENSATION
F MANAGERS AND OFFICERS
Β Β Β Β Β Β Β Β 6.1Β Β Β Β MANAGER.Β Β Β Β TheΒ LLC shall he managed by the Manager(s) designated in SectionΒ 6.1 of ExhibitΒ A. The Managers shall have such rights, duties and powers as are specified in this Agreement, or conferred upon the Managers by the Member.
Β Β Β Β Β Β Β Β 6.1.1Β Β DUTIES OF THE MANAGER.Β Β Β Β The Managers are the general managers and chief executive officers of theΒ LLC and have, subject to the control of the Members, general supervision, direction, and control of the business of theΒ LLC. The Managers shall have the general powers and duties of management typically vested in officers of a corporation, and such other powers and duties as may be prescribed by the Member.
Β Β Β Β Β Β Β Β 6.1.2Β Β APPOINTMENT.Β Β Β Β The Managers of theΒ LLC shall be chosen annually by the Member. Each Manager shall hold office until the Manager resigns or shall be removed or otherwise disqualified to serve, or the Manager's successor is appointed and qualified.
Β Β Β Β Β Β Β Β 6.1.3Β Β REMOVAL AND RESIGNATION.Β Β Β Β Any Manager or other officer of theΒ LLC may be removed, with or without cause, by the Member. Any Manager or other officer of theΒ LLC may resign at any time without prejudice to any rights of theΒ LLC under any contract to which the Manager(s)or other officer of theΒ LLC is a party, by giving written notice to the Member, or to the Manager, as applicable. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Β Β Β Β Β Β Β Β 6.1.4Β Β VACANCIES.Β Β Β Β A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled by appointment by the Member through the appointment of a successor officer who shall hold the office for the unexpired term.
Β Β Β Β Β Β Β Β 6.2Β Β Β Β MEETINGS OF THE MANAGERS.Β Β Β Β
Β Β Β Β Β Β Β Β 6.2.1Β Β Β Β The Managers shall share in the duties described in SectionΒ 6.1.1.
Β Β Β Β Β Β Β Β 6.2.2Β Β Β Β Meetings of the Managers shall be held at the principal office of theΒ LLC, unless some other place is designated in the notice of the meeting. Any Manager may participate in a meeting through use of a conference telephone or similar communication equipment so long as all Managers participating in such a meeting can hear one another. Accurate minutes of any meeting of the Managers shall be maintained by the officer designated by the Managers for that purpose.
Β Β Β Β Β Β Β Β 6.2.3Β Β Β Β Regular meetings of the Managers shall be held immediately following the adjournment of the annual meeting with the Member at which the Managers are elected. No notice need be given of such regular meetings.
Β Β Β Β Β Β Β Β 6.2.4Β Β Β Β Special meetings of the Managers for any purpose may be called at any time by any Manager At least forty-eight (48)Β hours notice of the time and place of a special meeting of the Managers shall be delivered personally to the Managers or personally communicated to them by an officer of theΒ LLC by telephone, telegraph or facsimile. If the notice is sent to a Manager(s)by letter, it shall be addressed to him at his last known business address as it is shown on the records of theΒ LLC. In case such notice is mailed, it shall be deposited in the United States mail, first-class postage, prepaid, in the place in which the principal office of theΒ LLC is located at least four (4)Β days prior to the time of the holding of the meeting. Such mailing, telegraphing, telephoning or delivery as above provided shall be considered due, legal and personal notice to such Manager.
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Β Β Β Β Β Β Β Β 6.2.5Β Β Β Β With respect to a special meeting which has not been duly called or noticed pursuant to the provisions of SectionΒ 6.2.4, all transactions carried out at the meeting are as valid as if a meeting had been regularly called and noticed if: (i)Β all Managers are present at the meeting, and sign a written consent to the holding of such meeting, or (ii)Β if a Manager is present and if the other Manager signs a waiver of notice of such meeting or a consent to holding the meeting or an approval of the minutes thereof, whether prior to or after the holding of such meeting, which waiver, consent or approval shall be filed with the other records of theΒ LLC, or (iii)Β if a Manager(s) attends a meeting without notice and does not protest prior to the meeting or at its commencement that notice was not given to him or her.
Β Β Β Β Β Β Β Β 6.2.6Β Β Β Β Any action required or permitted to be taken by the Managers may be taken without a meeting and will have the same force and effect as if taken by a vote of Managers at a meeting properly called and noticed, if authorized by a writing signed individually or collectively by all the Managers. Such consent shall be filed with the records of theΒ LLC.
Β Β Β Β Β Β Β Β 6.2.7Β Β A majority of the total number of incumbent Managers shall be necessary to constitute a quorum for the transaction of business at any meeting of the Managers, and except as otherwise provided in this Agreement or by the Statute, the action of a majority of the Managers present at any meeting at which there is a quorum, when duly assembled, is valid. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of Managers, if any action taken is approved by a majority of the required quorum for such meeting.
Β Β Β Β Β Β Β Β 6.3Β Β Β Β LIMITATIONS ON RIGHTS AND POWERS.Β Β Β Β Except by agreement of the Member which is evidenced in a writing, neither the Manager nor any other officer of theΒ LLC shall have authority to:
Β Β Β Β Β Β Β Β 6.3.1Β Β Enter into or commit to any agreement, contract, commitment or obligation on behalf of theΒ LLC obligating the Member or Principal to find additional capital, to make or guarantee a loan or to increase its personal liability either to theΒ LLC or to third parties;
Β Β Β Β Β Β Β Β 6.3.2Β Β Receive or permit the Member or Principal to receive any fee or rebate, or to participate in any reciprocal business arrangements that would have the effect of circumventing any of the provisions hereof;
Β Β Β Β Β Β Β Β 6.3.3Β Β Materially alter the Business of theΒ LLC or deviate from any approved business plan of theΒ LLC as set forth in this Agreement;
Β Β Β Β Β Β Β Β 6.3.4Β Β Permit or cause theΒ LLC to place title to any Property in the name of a nominee;
Β Β Β Β Β Β Β Β 6.3.5Β Β Permit theΒ LLC's funds to be commingled with the funds of any other Person;
Β Β Β Β Β Β Β Β 6.3.6Β Β Do any act in contravention of this Agreement;
Β Β Β Β Β Β Β Β 6.3.7Β Β Do any act which would make it impossible to carry on the Business of theΒ LLC;
Β Β Β Β Β Β Β Β 6.3.8Β Β Confess a judgment against theΒ LLC;
Β Β Β Β Β Β Β Β 6.3.9Β Β Possess Property, or assign rights in specific Property, for other than anΒ LLC purpose;
Β Β Β Β Β Β Β Β 6.3.10Β Β Admit any person as a Member, except as otherwise provided in this Agreement;
Β Β Β Β Β Β Β Β 6.3.11Β Β Sell, lease, pledge, hypothecate, or grant a security interest in any Property, except in the ordinary course of business;
Β Β Β Β Β Β Β Β 6.3.12Β Β Attempt to dissolve or withdraw from theΒ LLC; and
Β Β Β Β Β Β Β Β 6.3.13Β Β Invest or reinvest any proceeds from the operation of theΒ LLC, or the sale, refinancing or other disposition of any Property.
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Β Β Β Β Β Β Β Β 6.4Β Β Β Β COMPENSATION OF MANAGER.Β Β Β Β TheΒ LLC shall pay each Manager such salary and other benefits as shall be approved from time to time by the Member. TheΒ LLC shall reimburse the Managers for any reasonable expense paid by a Manager that properly is to be borne by theΒ LLC.
Β Β Β Β Β Β Β Β 6.5Β Β Β Β COMPENSATION OF MEMBER.Β Β Β Β Except as expressly permitted by this Agreement or any other written agreement. theΒ LLC shall pay no compensation to the Member or any Principal of the Member for their services to theΒ LLC.
Β Β Β Β Β Β Β Β 6.6Β Β Β Β EXPENSE REIMBURSEMENT.Β Β Β Β TheΒ LLC shall reimburse the Member for any expense paid by them that properly is to be borne by theΒ LLC, as approved from time to time by the Manager.
Β Β Β Β Β Β Β Β 7.1Β Β Β Β MEETINGS.Β Β Β Β The Managers shall meet with regard to the operation of the business and the management of the Company and shall establish meeting times, dates and places and requisite notice requirements and adopt rules or procedures as they deem necessary. The Member may call a special meeting of the Managers for any purpose by giving the Managers at least ten business days' notice thereof, except in the case of an emergency, in which case, such notice as is practicable shall be sufficient. The Managers may meet by means of conference telephone call, and any Manager may participate in any such meeting by conference telephone call.
Β Β Β Β Β Β Β Β 7.2Β Β Β Β NOTICE OF MEETINGS.Β Β Β Β Except as provided for in SectionΒ 7.1 for special meetings, notice of meetings shall be given to the Member in writing not less than ten (10)Β nor more than sixty (60)Β days before the date of the meeting by the Manager. Notices for regular and special meetings shall be given personally, by mail, or by facsimile, and shall be sent to each Member's last known business address appearing on the books of theΒ LLC. Such notice shill be deemed given at the time it is delivered personally, or deposited in the mail, or sent by facsimile. Notice of any meeting shall specify the place, the day and the hour of the meeting, and (i)Β in case of a special meeting, the general nature of the business to be transacted, or (ii)Β in the case of an annual meeting, those matters which the Manager, at the date of mailing, intends to present for action by the Member.
Β Β Β Β Β Β Β Β 7.3Β Β Β Β ACTIONS WITHOUT A MEETING.Β Β Β Β Any action which may be taken at any annual or special meeting may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the Member.
ARTICLEΒ 8
RESTRICTIONS ON TRANSFER OR CONVERSION
OFΒ LLC INTERESTS, ADDITIONAL CAPITAL CONTRIBUTIONS;
ADMISSION OF NEW MEMBERS
Β Β Β Β Β Β Β Β 8.1Β Β Β Β TRANSFER OR ASSIGNMENT OF MEMBER'S INTEREST.Β Β Β Β Only the Member may agree to transfer its membership interest.
Β Β Β Β Β Β Β Β 8.2Β Β Β Β ADDITIONAL CAPITAL.Β Β Β Β During the Term, the Member may make additional Capital Contributions to theΒ LLC.
Β Β Β Β Β Β Β Β 8.3Β Β Β Β ADMISSION OF NEW MEMBERS.Β Β Β Β New Members may not be admitted into theΒ LLC.
ARTICLEΒ 9
BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
Β Β Β Β Β Β Β Β 9.1Β Β Β Β MAINTENANCE OF BOOKS AND RECORDS.Β Β Β Β TheΒ LLC shall cause books and records of theΒ LLC to be maintained in accordance with generally accepted accounting principles. There shall be
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kept at the principal office of theΒ LLC, or such other office as the Managers may, from time to time designate, the followingΒ LLC documents:
Β Β Β Β Β Β Β Β 9.1.1Β Β A current list of the full name and business or residence address of each Manager;
Β Β Β Β Β Β Β Β 9.1.2Β Β A copy of the Articles of Organization and any amendments thereto, together with any powers of attorney pursuant to which the Articles of Organization and any amendments thereto were executed;
Β Β Β Β Β Β Β Β 9.1.3Β Β Copies of theΒ LLC's federal, state, foreign, and local income tax or information returns and reports, if any, for the six most recent Fiscal Years;
Β Β Β Β Β Β Β Β 9.1.4Β Β A copy of this Agreement and any amendments thereto, together with any powers of attorney pursuant to which this Agreement and any amendments thereto were executed;
Β Β Β Β Β Β Β Β 9.1.5Β Β Copies of the financial statements of theΒ LLC, if any, for the six most recent Fiscal Years:
Β Β Β Β Β Β Β Β 9.1.6Β Β Copies of the general ledger and subsidiary ledgers of theΒ LLC, if any for the six most recent Fiscal Years;
Β Β Β Β Β Β Β Β 9.1.7Β Β TheΒ LLC's books and records as they relate to the internal affairs of theΒ LLC for at least the current and past four Fiscal Years;
Β Β Β Β Β Β Β Β 9.1.8Β Β Originals or copies of all minutes, actions by written consent, consents to action and waivers of notice to the Member, actions and consents; and
Β Β Β Β Β Β Β Β 9.1.9Β Β Any other information required to be maintained by theΒ LLC pursuant to the Statute.
Β Β Β Β Β Β Β Β 9.2Β Β Β Β ANNUAL ACCOUNTING.Β Β Β Β Within 120Β days after the close of each Fiscal Year of theΒ LLC, theΒ LLC shall (1)Β cause to be prepared and submitted to each Member a balance sheet and income statement for the preceding Fiscal Year of theΒ LLC (or portion thereof) in conformity with generally accepted accounting principles and (ii)Β provide to the Member all information necessary for them to complete federal and state tax returns. TheΒ LLC shall also provide the Member with (i)Β quarterly financial reports within 30Β days after the end of each calendar quarter, and (ii)Β an annual report, within seventy-five (75)Β days after the end of each of the Company's Fiscal Years, which describes the Company's activities during the Company's most recent Fiscal Year and which includes audited financial statements of the Company for such period, prepared in accordance with generally accepted accounting principles (such statements to include a balance sheet, income statement and statement of cash flows).
Β Β Β Β Β Β Β Β 9.3Β Β Β Β INSPECTION AND AUDIT RIGHTS.Β Β Β Β The Member has the right to inspect and copy during normal business hours any of theΒ XXX xxxxx and records required to be maintained in accordance with SectionΒ 9.1. Such right may be exercised by the Person or by that Person's agent or attorney. The Member may require a review and/or audit of the books, records and reports of theΒ LLC.
Β Β Β Β Β Β Β Β 9.4Β Β Β Β RIGHTS OF MEMBER.Β Β Β Β Upon the request of the Member, the Manager shall promptly deliver to the Member a copy of this Agreement and a copy of the information listed in SectionΒ 9.1 of this Agreement.
Β Β Β Β Β Β Β Β 9.5Β Β Β Β BANK ACCOUNTS.Β Β Β Β The bank accounts of theΒ LLC shall be maintained in such banking institutions as the Manager shall determine, provided such institutions have a net worth in excess of One Hundred Million Dollars ($100,000,000).
Β Β Β Β Β Β Β Β 9.6Β Β Β Β TAX MATTERS HANDLED BY MANAGERS.Β Β Β Β The Member shall designate a "Tax Matters Partner" (as defined in Code sectionΒ 6231), to represent theΒ LLC (at theΒ LLC's expense) in connection with all examinations of theΒ LLC's affairs by tax authorities, including resulting judicial and administrative proceedings, and to expendΒ LLC funds for professional services and costs associated
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therewith. In its capacity as "Tax Matters Partner," the designated Person shall oversee theΒ LLC tax affairs in the overall best interests of theΒ LLC. Unless the Member designate another to be "Tax Matters Partner," the Manager shall be the "Tax Matters Partner," provided that Person is a Member or an officer of a corporate Member.
Β Β Β Β Β Β Β Β 9.7Β Β Β Β FEDERAL INCOME TAX ELECTIONS MADE BY MANAGERS.Β Β Β Β The Manager on behalf of theΒ LLC may make all elections for federal income tax purposes, including but not limited to, the following:
Β Β Β Β Β Β Β Β 9.7.1Β Β USE OF ACCELERATED DEPRECIATION METHODS.Β Β Β Β To the extent permitted by applicable law and regulations, theΒ LLC may elect to use an accelerated depreciation method on any depreciable unit of the assets of theΒ LLC; and
Β Β Β Β Β Β Β Β 9.7.2Β Β ADJUSTMENT OF BASIS OF ASSETS.Β Β Β Β In case of a transfer of all or part of the Interest of the Member, theΒ LLC may elect, pursuant to code SectionsΒ 734, 743, and 754 of the Code to adjust the basis of the assets of theΒ LLC.
Β Β Β Β Β Β Β Β 9.7.3Β Β ACCOUNTING METHOD.Β Β Β Β For financial reporting purposes, the books and records of theΒ LLC shall be kept on the accrual method of accounting applied in a consistent manner and shall reflect all transactions of theΒ LLC and be appropriate and adequate for the purposes of theΒ LLC.
Β Β Β Β Β Β Β Β 9.8Β Β Β Β OBLIGATIONS OF MEMBERS TO REPORT ALLOCATIONS.Β Β Β Β The Member is aware of the income tax consequences of the allocations made by this Agreement and hereby agrees to be bound by the provisions of this SectionΒ 9.8 in reporting its shares of theΒ LLC income and loss for income tax purposes.
ARTICLEΒ 10
TERMINATION AND DISSOLUTION
Β Β Β Β Β Β Β Β 10.1Β Β Β Β DISSOLUTION.Β Β Β Β TheΒ LLC shall be dissolved upon the occurrence of any of the following events:
Β Β Β Β Β Β Β Β 10.1.1Β Β When the Term of theΒ LLC expires;
Β Β Β Β Β Β Β Β 10.1.2Β Β The written approval of the Member to dissolve theΒ LLC;
Β Β Β Β Β Β Β Β 10.1.3Β Β The bankruptcy or dissolution of the Member or the occurrence of any other event which terminates the Member's continued membership in theΒ LLC.
Β Β Β Β Β Β Β Β 10.2Β Β Β Β STATEMENT OF INTENT TO DISSOLVE.Β Β Β Β As soon as possible after the occurrence of any of the events specified in SectionΒ 10.1 above, theΒ LLC shall execute a Statement of Intent to Dissolve in such form as prescribed by the Secretary of State.
Β Β Β Β Β Β Β Β 10.3Β Β Β Β CONDUCT OF BUSINESS.Β Β Β Β Upon the filing of the Statement of Intent to Dissolve with the Secretary of State, theΒ LLC shall cease to carry on its business, except insofar as may be necessary for the winding up of its business, but theΒ LLC's separate existence shall continue until the Articles of Dissolution have been filed with the Secretary of State or until a decree dissolving theΒ LLC has been entered by a court of competent jurisdiction.
Β Β Β Β Β Β Β Β 10.4Β Β Β Β DISTRIBUTION OF NET PROCEEDS.Β Β Β Β The Member shall continue to divide Net Profits and Losses and Available Cash Flow during the winding-up period in the same manner and the same priorities as provided for in ArticlesΒ 4 and 5 hereof. The proceeds from the liquidation of Property shall be applied in the following order:
Β Β Β Β Β Β Β Β 10.4.1Β Β To the payment of creditors, in the order of priority as provided by law, except to the Member on account of its contributions;
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Β Β Β Β Β Β Β Β 10.4.2Β Β To the payment of loans or advances that may have been made by the Member or its Principals for working capital or other requirements of theΒ LLC;
Β Β Β Β Β Β Β Β 10.4.3Β Β To the Member in accordance with the positive balances in its Capital Accounts after adjustments for all allocations of Net Profits and Net Loss.
Β Β Β Β Β Β Β Β Where the distribution pursuant to this SectionΒ 10.4 consists both of cash (or cash equivalents) and non-cash assets, the cash (or cash equivalents) shall first be distributed, in a descending order, to fully satisfy each category starting with the most preferred category above. In the case of noncash assets, the distribution values are to be based on the fair market value thereof as determined in good faith by the liquidator, and the shortest maturity portion of such non-cash assets (e.g.,Β notes or other indebtedness) shall, to the extent such non-cash assets are readily divisible, be distributed, in a descending order, to fully satisfy each category above, starting with the most preferred category.
ARTICLEΒ 11
INDEMNIFICATION OF THE MEMBERS, MANAGERS,
AND THEIR AFFILIATES
Β Β Β Β Β Β Β Β 11.1Β Β Β Β INDEMNIFICATION OF THE MEMBERS AND THEIR PRINCIPALS.Β Β Β Β TheΒ LLC shall indemnify and hold harmless the Member, the Managers, their Affiliates and their respective officers, directors, employees, agents and Principals (individually, an "Indemnitee") from and against any and all losses, claims, demands, costs, damages, liabilities, joint and several, expenses of any nature (including reasonable attorneys' fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which the Indemnitee was involved or may be involved, or threatened to be involved, as a party or otherwise, arising out of or incidental to the Business of theΒ LLC, excluding liabilities to the Member, regardless of whether the Indemnitee continues to be a Member, an Affiliate, or an officer, director, employee, agent or Principal of the Member at the time any such liability or expense is paid or incurred, to the fullest extent permitted by the Statute and all other applicable laws.
Β Β Β Β Β Β Β Β 11.2Β Β Β Β EXPENSES.Β Β Β Β Expenses incurred by an Indemnitee in defending any claim, demand, action, suit or proceeding subject to SectionΒ 11.1 shall, from time to time, be advanced by theΒ LLC prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by theΒ LLC of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Person is not entitled to be indemnified as authorized in SectionΒ 11.1.
Β Β Β Β Β Β Β Β 11.3Β Β Β Β INDEMNIFICATION RIGHTS NON-EXCLUSIVE.Β Β Β Β The indemnification provided by SectionΒ 11.1 shall be in addition to any other rights to which those indemnified may be entitled under any agreement, determination of the Member, as a matter of law or equity or otherwise, both as to action in the Indemnitee's capacity as the Member, as an Affiliate or as an officer, director, employee, agent or Principal of the Member and as to any action in another capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
Β Β Β Β Β Β Β Β 11.4Β Β Β Β ERRORS AND OMISSIONS INSURANCE.Β Β Β Β TheΒ LLC may purchase and maintain insurance, at the LL C's expense, on behalf of the Member and such other Persons as the Member shall determine, against any liability that may be asserted against, or any expense that may be incurred by, such Person in connection with the activities of theΒ LLC and/or the Member's acts or omissions as the Member of theΒ LLC regardless of whether theΒ LLC would have the power to indemnify such Person against such liability under the provisions of this Agreement.
Β Β Β Β Β Β Β Β 11.5Β Β Β Β ASSETS OF THEΒ LLC.Β Β Β Β Any indemnification under SectionΒ 11.1 shall be satisfied solely out of the assets of theΒ LLC. The Member shall not be subject to personal liability or required to fund or to cause to be funded any obligation by reason of these indemnification provisions.
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ARTICLEΒ 12
ISSUANCE OFΒ LLC CERTIFICATES
Β Β Β Β Β Β Β Β 12.1Β Β Β Β ISSUANCE OFΒ LLC CERTIFICATES.Β Β Β Β The interest of the Member in theΒ LLC shall be represented by anΒ LLC Certificate. Upon the execution of this Agreement and the payment of the Capital Contributions by the Member, the Manager shall cause theΒ LLC to issue one or moreΒ LLC Certificates in the name of each Member certifying that the Person named therein is the record holder of theΒ LLC Units set forth therein. For purposes of this Agreement, the term "record holder" shall mean the Person whose name appears in SectionΒ 1.20 as the Member owning theΒ LLC Interest at issue.
Β Β Β Β Β Β Β Β 12.2Β Β Β Β TRANSFER OFΒ LLC CERTIFICATES.Β Β Β Β AnΒ LLC Interest which is transferred in accordance with the terms of SectionΒ 8.1 of this Agreement shall be transferable on the books of theΒ LLC by the record holder thereof in person or by such record holder's duly authorized attorney, but, except as provided in SectionΒ 12.3 hereof with respect to lost, stolen or destroyed certificates, no transfer of anΒ LLC Interest shall be entered until the previously issuedΒ LLC Certificate representing suchΒ LLC Interest shall have been surrendered to theΒ LLC and canceled and a replacementΒ LLC Certificate issued to the assignee of suchΒ LLC Interest in accordance with such procedures as the Manager may establish. The Manager shall issue to the transferring Member a newΒ LLC Certificate representing theΒ LLC Units not being transferred by the Member, in the event the Member only transferred some, but not all, of theΒ LLC Units represented by the originalΒ LLC Certificate. Except as otherwise required by law, theΒ LLC shall be entitled to treat the record holder of anΒ LLC Certificate on its books as the owner thereof for all purposes regardless of any notice or knowledge to the contrary.
Β Β Β Β Β Β Β Β 12.3Β Β Β Β LOST, STOLEN OR DESTROYED CERTIFICATES.Β Β Β Β TheΒ LLC shall issue a newΒ LLC Certificate in place of anyΒ LLC Certificate previously issued if the record holder of theΒ LLC Certificate:
Β Β Β Β Β Β Β Β 12.3.1Β Β makes proof by affidavit, in form and substance satisfactory to the Manager(s), that a previously issuedΒ LLC Certificate has been lost, destroyed or stolen;
Β Β Β Β Β Β Β Β 12.3.2Β Β requests the issuance of a newΒ LLC Certificate before theΒ LLC has notice that theΒ LLC Certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim;
Β Β Β Β Β Β Β Β 12.3.3Β Β if requested by the Manager(s), delivers to theΒ LLC a bond, in form and substance reasonably satisfactory to the Manager(s), with such surety or sureties and with fixed or open penalty as the Manager(s) may direct, in their reasonable discretion, to indemnify theΒ LLC against any claim that may be made on account of the alleged loss, destruction or theft of the LIE Certificate; and
Β Β Β Β Β Β Β Β 12.3.4Β Β satisfies any other reasonable requirements imposed by the Manager(s).
Β Β Β Β Β Β Β Β If the Member fails to notify theΒ LLC within a reasonable time after it has notice of the loss, destruction or theft of anΒ LLC Certificate, and a transfer of theΒ LLC Interest represented by theΒ LLC Certificate is registered before receiving such notification, theΒ LLC shall have no liability with respect to any claim against theΒ LLC for such transfer or for a newΒ LLC Certificate.
Β Β Β Β Β Β Β Β 13.1Β Β Β Β AMENDMENT, ETC. OF COMPANY AGREEMENT.Β Β Β Β This Agreement may be adopted, altered, amended, or repealed and a new Company Agreement may be adopted by the Member.
Β Β Β Β Β Β Β Β 13.2Β Β Β Β AMENDMENT, ETC. OF ARTICLES OF ORGANIZATION.Β Β Β Β Notwithstanding any provision to the contrary in the Articles of Organization or this Agreement, in no event shall the Articles of Organization be amended without the consent of the Member.
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ARTICLEΒ 14
MISCELLANEOUS PROVISIONS
Β Β Β Β Β Β Β Β 14.1Β Β Β Β COUNTERPARTS.Β Β Β Β This Agreement may be executed in several counterparts, and all counterparts so executed shall constitute one Agreement, binding on all of the parties hereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart.
Β Β Β Β Β Β Β Β 14.2Β Β Β Β SURVIVAL OF RIGHTS.Β Β Β Β This Agreement shall be binding upon, and, as to permitted or accepted successors, transferees and assigns, inure to the benefit of the Member and theΒ LLC and their respective heirs, legatees, legal representatives, successors, transferees and assigns, in all cases whether by the laws of descent and distribution, merger, reverse merger, consolidation, sale of assets, other sale, operation of law or otherwise.
Β Β Β Β Β Β Β Β 14.3Β Β Β Β SEVERABILITY.Β Β Β Β In the event any Section, or any sentence within any Section. is declared by a court of competent jurisdiction to be void or unenforceable, such sentence or Section shall be deemed severed from the remainder of this Agreement and the balance of this Agreement shall remain in full force and effect.
Β Β Β Β Β Β Β Β 14.4Β Β Β Β NOTICES.Β Β Β Β Except for notices to be given under ArticlesΒ 6 and 7 for purposes of meetings of Managers and meetings of Member, any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if personally delivered, transmitted by facsimile (with mechanical confirmation of transmission), or deposited in the United States mail, registered or certified, postage prepaid, addressed to the parties' addresses set forth below. Notices given in the manner provided for in this SectionΒ 14.4 shall be deemed effective on the third day following deposit in the mail or on the day of transmission or delivery if given by facsimile or by hand. Notices must be addressed to the parties hereto at the following addresses, unless the same shall have been changed by notice in accordance herewith.
Β Β Β Β Β Β Β Β 14.5Β Β Β Β CONSTRUCTION.Β Β Β Β The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against the Member.
Β Β Β Β Β Β Β Β 14.6Β Β Β Β SECTION HEADINGS.Β Β Β Β The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of this Agreement and shall not be used in construing or interpreting this Agreement.
Β Β Β Β Β Β Β Β 14.7Β Β Β Β GOVERNING LAW.Β Β Β Β This Agreement shall be construed according to the laws of the State of Delaware.
Β Β Β Β Β Β Β Β 14.8Β Β Β Β PRONOUNS AND PLURALS.Β Β Β Β Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Β Β Β Β Β Β Β Β 14.9Β Β Β Β TIME OF THE ESSENCE.Β Β Β Β Except as otherwise provided herein, time is of the essence in connection with each and every provision of this Agreement.
Β Β Β Β Β Β Β Β 14.10Β Β Β Β FURTHER ACTIONS.Β Β Β Β The Member agrees to execute, acknowledge and deliver such additional documents, and take such further actions, as may reasonably be required from time to time to carry out each of the provisions, and the intent, of this Agreement, and every agreement or document relating hereto, or entered into in connection herewith.
Β Β Β Β Β Β Β Β 14.11Β Β Β Β THIRD PARTY BENEFICIARIES.Β Β Β Β There are no third party beneficiaries of this Agreement except (i)Β Affiliates and Principals of the Member and (ii)Β any other Persons as may be entitled to the benefits of ArticleΒ 11.1 hereof.
Β Β Β Β Β Β Β Β 14.12Β Β Β Β TAX ELECTIONS.Β Β Β Β The Tax Matters Partner, in his sole discretion, shall cause theΒ LLC to make or not make all elections required or permitted to be made for income tax purposes.
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Β Β Β Β Β Β Β Β 14.13Β Β Β Β ENTIRE AGREEMENT.Β Β Β Β This Agreement and the Articles of Organization constitute the entire agreement with the Member with respect to, and supersedes all prior written and oral agreements, understandings and negotiations with respect to, the subject matter hereof.
Β Β Β Β Β Β Β Β 14.14Β Β Β Β WAIVER.Β Β Β Β No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.
Β Β Β Β Β Β Β Β 14.15Β Β Β Β ATTORNEYS' FEES.Β Β Β Β In the event of any litigation, arbitration or other dispute arising as a result of or by reason of this Agreement, the prevailing party in any such litigation, arbitration or other dispute shall be entitled to, in addition to any other damages assessed, its reasonable attorneys' fees, and all other costs and expenses incurred in connection with settling or resolving such dispute. The attorneys' fees which the prevailing party is entitled to recover shall include fees for prosecuting or defending any appeal and shall be awarded for any supplemental proceedings until the final judgment is satisfied in full. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit or arbitration procedure on this Agreement shall be entitled to its reasonable attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This attorneys' fees provision is separate and several and shall survive the merger of this Agreement into any judgment.
Β Β Β Β Β Β Β Β IN 'WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
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COMPANY AGREEMENT FOR CITI TEEVEE, LLC
ARTICLE 1 DEFINITIONS
ARTICLE 2 INTRODUCTORY MATTERS
ARTICLE 3 MEMBERS AND CAPITAL CONTRIBUTIONS
ARTICLE 4 ALLOCATION OF PROFITS AND LOSSES
ARTICLE 5 DISTRIBUTIONS
ARTICLE 6 RIGHTS, DUTIES, OBLIGATIONS AND COMPENSATION F MANAGERS AND OFFICERS
ARTICLE 7 MEETINGS
ARTICLE 8 RESTRICTIONS ON TRANSFER OR CONVERSION OF LLC INTERESTS, ADDITIONAL CAPITAL CONTRIBUTIONS; ADMISSION OF NEW MEMBERS
ARTICLE 9 BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
ARTICLE 10 TERMINATION AND DISSOLUTION
ARTICLE 11 INDEMNIFICATION OF THE MEMBERS, MANAGERS, AND THEIR AFFILIATES
ARTICLE 12 ISSUANCE OF LLC CERTIFICATES
ARTICLE 13 AMENDMENTS
ARTICLE 14 MISCELLANEOUS PROVISIONS