(10.70) Operating Agreement of Peakwood, L.L.C. between Aero Services
International, Inc. and Peakwood Capital Corporation dated
January 11, 1996.
OPERATING AGREEMENT
OF
PEAKWOOD, L.L.C.
THIS OPERATING AGREEMENT, made as of the 11th day of
January, 1996, by and between PEAKWOOD CAPITAL CORPORATION, a
Virginia corporation, and AERO SERVICES INTERNATIONAL, INC., a
Louisiana corporation.
W I T N E S S E T H :
In consideration of the mutual covenants herein contained,
the parties agree as follows:
1. FORMATION
AND TERM.
A.Formation.
The parties have formed a limited liability company pursuant to the Virginia
Limited Liability Company Act by filing articles of organization
with the Virginia State Corporation Commission.
B.Term.
The Company shall continue until December 31, 2026, unless sooner terminated
in accordance with this Agreement and the Virginia Limited
Liability Company Act.
2. DEFINITIONS.
The following terms used in this Agreement shall (unless otherwise
expressly provided herein or unless the context otherwise
requires) have the following respective meanings:
A.Act.
The Virginia Limited Liability Company Act, as set forth in the Code of
Virginia, as it may be amended or superseded from time to time.
B.Agreement.
This Operating Agreement, as originally executed and as amended from time to
time, as the context requires.
C.Bankruptcy.
(1) The filing
of an application by a Member for, or its consent to, the
appointment of a trustee, receiver, or custodian of its assets;
(2) The entry
of an order for relief with respect to a Member in proceedings
under the United States Bankruptcy Code, as amended or
superseded from time to time;
(3) The making
by a Member of a general assignment for the benefit of
creditors;
(4) The entry
of an order, judgment or decree by any court of competent
jurisdiction appointing a trustee, receiver or custodian of the
assets of a Member unless the proceedings and the person
appointed are dismissed within ninety (90) days;
(5) The failure
by a Member generally to pay its debts as the debts become due
within the meaning of Section 303(h)(1) of the United States
Bankruptcy Code, as determined by the Bankruptcy Court, or the
admission in writing of its inability to pay its debts as they
become due; or
(6) Suffering
or permitting a Member's Interest to become subject to the
enforcement of any rights of a creditor of a Member, whether
arising out of an attempted charge upon that Member's Interest
by judicial process or otherwise, if that Member fails to
effectuate the release of those enforcement rights, whether by
legal process, bonding, or otherwise, within ninety (90) days
after actual notice of that creditor's action.
▇.▇▇▇▇▇▇▇ Account.
As of any date the capital account maintained for each Member under Section 5E.
▇.▇▇▇▇▇▇▇ Contribution.
The total amount of money and the agreed upon fair market value of
property contributed to the Company by a Member on the date of
contribution, net of liabilities secured by that contributed
property that the Company is considered to assume or to be
subject to under Section 752 of the Code.
F.Code.
The 1986 Internal Revenue Code, as amended from time to time.
▇.▇▇▇▇▇▇▇.
Peakwood,
L.L.C.
H.Disposition.
The sale, assignment, transfer, exchange or other disposition of an
Interest, in any manner, whether voluntary or involuntary, or by
operation of law or otherwise.
I.Gain or Loss from Sale.
Any gain or loss for federal income tax purposes resulting from the sale or
other disposition of the capital assets of the Company not in
the ordinary course of the Company's business.
J.Interest.
The ownership interest, expressed as a percentage, of a Member in the Company
at any particular time, initially as set forth in Section 5A,
including the right of the Member to any and all benefits to
which the Member is entitled and the obligations to which the
Member is subject under the Agreement.
K.Manager.
A person chosen pursuant to Section 7A.
L.Members.
Peakwood Capital Corporation, a Virginia corporation, and Aero Services
International, Inc., a Louisiana corporation, and any person or
entity admitted as an additional Member or a successor Member
under this Agreement.
▇.▇▇▇ Income or Net Loss.
The income or loss, as the case may be, of the Company for a period as
determined in accordance with Section 703(a)(1) of the Code,
including each item of income, gain, loss or deduction required
to be separately stat
ed.
N.Regulations.
The regulations issued under the Code, as amended from time to time.
O.Successor in Interest.
The person who succeeds to an Interest upon the death, incompetency,
dissolution or Bankruptcy of a Member.
3. NAME, OFFICE OF THE COMPANY AND REGISTERED AGENT.
▇.▇▇▇▇.
The name of the Company is Peakwood, L.L.C. The business of the Company may
be conducted under such trade or fictitious names as the Members
may determine.
▇.▇▇▇▇▇▇ of the
Company.
The principal place of business of the Company shall be ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
specified office of the Company at which shall be kept the
records required to be maintained by the Company under the Act
shall be P. O. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
place or places as the Members shall deem advisable.
C.Registered
Agent.
The Company's agent for service of process shall be G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P. O. Box 2887, Roanoke, Virginia 24001-
2887, or such other person as the Members may designate.
4. BUSINESS OF THE COMPANY.
The business of the Company shall be to acquire, manage, hold, lease,
sell, exchange or otherwise dispose of certain Dun & Bradstreet
Receivable Management Services franchises and other franchises.
5. MEMBERS,
INTERESTS
AND CAPITAL.
A.Members and Interests.
The names and Interests of the Members are as follows:
Name Interests
Peakwood Capital Corporation 60%
Aero Services International, Inc. 40%
B.Initial
Capital Contribution.
The Members
shall contribute to the Company the property set forth opposite
the name of each as specified below:
Name
Contribution
Peakwood Capital Corporation
The right to purchase franchises for Dun & Bradstreet Receivable Management
Services for Western Virginia, Kentucky and West Virginia (the "Franchises ")
Aero Services International, Inc.$150,000
The Capital Contribution of Aero Services International, Inc., shall be
payable to the Company in three installments to be made on or
before the following dates in the amounts specified and shall be
repaid to Aero Services International, Inc., in accordance with
Section 6 of the Agreement:
January 10, 1996$100,000
February 10, 1996$ 25,000
March 10, 1996$ 25,000
C.
Failure to Make Capital Contribution in Accordance with this
Agreement.
In the event
that Aero Services International, Inc., fails to contribute any
installment of its Capital Contribution to the Company on or
before the dates specified in subparagraph B of this Section 5,
Peakwood Capital Corporation may, at its option exercisable by
notice to Aero Services International, Inc., within thirty (30)
days after the due date of such installment, purchase the
Interest of Aero Services International, Inc., at a purchase
price of fifty percent (50%) of capital actually contributed;
provided, however, that Aero Services International, Inc., shall
have a period of fifteen (15) days from the date of said notice
to cure any such failure to contribute an installment.
D.Guaranty of
Company Indebtedness. The Members
shall not be obligated to guarantee the Company indebtedness
unless they mutually agree to do so.
▇.▇▇▇▇▇▇▇
Accounts.
(1)A Capital
Account shall be established and maintained for each Member. A
Member shall have a single Capital Account, regardless of class
and regardless of the time or manner in which any portion of
that Interest was acquired. If an Interest is transferred in
accordance with this Agreement, the transferee shall succeed to
the Capital Account of the transferor to the extent it relates
to the transferred Interest.
(2)As of any
date, a Member's Capital Account shall consist of: (i) the sum
of (A) the amount of money contributed by it to the Company, (B)
the agreed upon fair market value of property contributed by it
to the Company, (C) allocations to it of Net Income and Gain
from Sale (or items thereof), and (D) the amount of any Company
liabilities assumed by that Member or that are secured by any
Company assets distributed to that Member; minus (ii) the sum of
(A) the amount of money distributed to it by the Company, (B)
the fair market value of property distributed to it by the
Company, (C) allocations to it of Net Loss and Loss from Sale
(or items thereof), and (D) the amount of any liabilities of
that Member assumed by the Company or secured by any property
contributed by that Member to the Company other than those taken
into account in calculating Capital Contributions.
(3)The principles
governing the adjustments of Capital Accounts are intended to
satisfy the capital account maintenance requirements of
Regulation Section 1.704-1(b)(2)(iv) and shall be construed
consistently therewith.
F. Additional Provisions on Capital and Obligations of Members.
(1)No Member
gives up any of its rights to be repaid his or its Capital
Contributions in favor of any other Member.
(2)No Member
shall be paid interest on its Capital Account.
(3)No Member
shall have the right to demand and receive property other than
cash in return of its Capital Contributions.
(4)No Member
shall have the right to demand and receive property of the
Company in return of its Capital Contributions until the
termination of the Company.
(5)The liability
of any Member for the losses, debts, liabilities and obligations
of the Company shall be limited to paying its capital
contributions when due under the Agreement, its share of any
undistributed assets of the Company, and (only to the extent
required by the Act) any amounts previously distributed to it
from the Company.
6. ALLOCATIONS AND DISTRIBUTIONS.
▇.▇▇▇ Income.
Net Income
shall be allocated among the Members in proportion to their
respective Interests.
▇.▇▇▇ Loss and
Credits.
Net Loss and tax credits shall be allocated among the Members in proportion
to their respective Interests.
C.Funds
Available for Distribution.
Fifty percent (50%) of the taxable income of the Company shall be paid to Aero
Services International, Inc., on a quarterly basis beginning on
June 30, 1996 (if such funds are available), until such time as
Aero Services International, Inc. has received priority
distributions in the amount of $150,000. Notwithstanding the
foregoing, funds available for distribution as a result of the
sale or other disposition of the capital assets of the Company
other than in the ordinary course of business shall be paid to
Aero Services International, Inc., until such time as total
priority distributions to it total $150,000.
All other funds available for distribution shall be allocated and
distributed among the Members in proportion to their respective
Interests at such time as the Members shall determine.
D.Gain from
Sale.
Gain from Sale
shall be allocated among the Members in proportion to their
respective Interests.
E.Loss from
Sale.
Loss from Sale
shall be allocated among the Members in proportion to their
respective interests.
7. MANAGEMENT.
A.Manager.
The Company's business shall be managed by a Manager selected by a vote of
Members with a majority of interests in the Company. The
initial Manager shall be Peakwood Capital Corporation.
▇.▇▇▇▇▇▇▇▇▇▇ of
the Company.
The Manager
shall have full charge of the management, conduct and operation
of the Company business in all respects and all matters and may
delegate certain aspects of its duties to one or more agents or
Members.
C.Compensation
and Reimbursement of Manager.
(1) Peakwood Capital Corporation shall receive $5,000 per month in
compensation for services rendered to the Company as the Manager
and for use by the Company of Peakwood Capital Corporation's
office space and existing furniture and equipment.
(2) The Manager
shall be entitled to charge to the Company, or to be reimbursed
by the Company for, all expenses incurred by it in connection
with Company business.
8. TELEMARKETING SERVICES.
Aero Services International, Inc., shall be given priority
consideration by the Manager to provide telemarketing services
for the Company on an as needed basis. The Manager shall, on a
case by case basis and in its sole discretion, determine whether
the telemarketing services of Aero Services International, Inc.,
will be efficient, professional and in the best interests of the
Company.
9. AUTHORITY OF
THE MEMBERS
AND MANAGER
TO ENGAGE IN
OTHER
BUSINESSES.
Any of the Members and the Manager may engage in and/or possess an
interest in other business ventures of any nature and
description, independently or with others, whether or not in
competition with the Company, including but not being limited
to, the ownership, financing, leasing, operation, management,
brokerage and/or development of franchises, including but not
limited to Dun & Bradstreet Receivable Management Services
franchises; and neither the Company nor any of the Members shall
have any right by virtue of this Agreement in or to any
independent venture or to any income or profits derived
therefrom. Neither the Manager nor any Member shall be
obligated to present any particular investment opportunity to
the Company even if such opportunity is of a character which, if
presented to the Company, could be taken by the Company, and the
Manager and each Member shall have the right to take for its own
account (individually or as a trustee) or to recommend to others
any such particular investment opportunity.
10. ACCOUNTS, BOOKS, RECORDS, ACCOUNTING, REPORTS AND TAX MATTERS.
▇.▇▇▇▇ Accounts.
The funds of the Company shall be deposited in the name of the Company in
such bank or savings and loan accounts as may be designated by
the Manager, and the Manager shall arrange for the appropriate
conduct of such accounts, including the signatures to be
required.
B.Books and
Records.
The Manager shall keep or cause to be kept complete and accurate books of
account, in which shall be entered fully and accurately each and
every transaction of the Company, and the records required to be
maintained by the Company pursuant to the Act. The Company's
books and records shall be maintained at the principal office of
the Company or at such other place as the Manager may from time
to time designate, and each Member shall at all reasonable times
have access thereto and the right to inspect and copy for
purposes related to the Company's business.
▇.▇▇▇ Information.
The Manager shall use its best efforts to cause the Company to deliver to
each Member within seventy-five (75) days after the end of each
taxable year the information relating to the Company necessary
for the preparation of the Member's federal income tax return.
▇.▇▇▇ Elections.
The Manager may make all elections for federal income tax purposes.
▇.▇▇▇ Matters Partner.
Peakwood Capital Corporation is designated as the "tax matters partner"
for purposes of the Code. The Members may name a substitute or
successor at any time.
11. INDEMNIFICATION AND EXCULPATION OF MEMBERS AND MANAGERS.
A.
Indemnification.
The Members and the Manager shall be indemnified and held harmless by the
Company from any liability resulting from any act performed by
or omission made by them on behalf of the Company, except for
acts or omission of gross negligence or willful misconduct, to
the fullest extent that a director or officer of a stock
corporation may be indemnified and held harmless under Chapter
9 of Title 13.1 of the Virginia Code, 1950, as amended.
B.Exculpation.
The Members and Manager shall not be liable to the Company or to any Member
for or as a result of any act, omission or error in judgement
that was taken, omitted or made by the Members or Manager in
accordance with the standards established by Section 12.1-1024.1
of the Act. In any proceeding brought or in the right of the
Company or brought by or on behalf of Members of the Company, a
Member or Manager shall have no liability for damages other than
for willful misconduct or a knowing violation of the criminal
law.
12. ASSIGNABILITY OF COMPANY INTERESTS.
A.Limitations.
No Member may withdraw or resign from the Company, nor may any member make a
Disposition of all or any part of her Interest without the prior
written consent of the Members owning a majority of the
Interests, including the Member proposing to withdraw, resign or
make a Disposition.
B.Pledge or
Encumbrance of Interests.
No Member maypledge or encumber all or any part of its Interest, in any
manner, whether voluntarily or involuntarily, by operation of
law or otherwise, without the consent of the Members owning a
majority of the Interests.
13. DEATH,INCOMPETENCY, DISSOLUTION OR BANKRUPTCY OF A MEMBER.
A.
Events.
Upon the death, incompetency, dissolution or Bankruptcy of a Member, the
other Member shall have the option, exercisable by notice to the
Successor in Interest within thirty (30) days after the event,
to purchase the Member's entire interest.
B.Purchase
Price.
If a Member
having the option elects to purchase the interest of the
deceased, incompetent, dissolved or Bankrupt Member, the
purchase price shall be an amount equal to the Member's
proportionate share of the amount by which the fair market value
of all property owned by the Company, less a deemed 7% sales
commission in the case of all assets customarily sold by an
agent or broker, exceeds Company liabilities, with no value
assigned to goodwill of the Company and with no discount for
lack of marketability or minority interest.
14. TERMINATION.
A.
Events Causing Dissolution and Winding Up.
Any of the following events shall cause the dissolution and winding up of
the Company:
(1) Consent in
writing by a majority in interest of the Members.
(2) The sale
or other disposition of the Company.
(3) Expiration
of the term set forth in Section 1B.
(4) Any other
event causing dissolution under the Act unless a majority of the
remaining Members agree to continue the business of the Company
pursuant to Section 14B.
B.Election to
Continue Company.
An event set
forth in Section 14A shall not result in the dissolution,
winding up and termination of the Company if, within ninety (90)
days after the occurrence of that event, a majority in interest
of the Members votes to continue the Company.
C.Winding Up
Company Affairs.
(1) Upon the occurrence of any of the events specified in Section 14A(1) -
(3) or the events specified in Section 14A(4) and the failure of
the Members to continue the business under Section 14B, the
Manager shall wind up the affairs of the Company. After the
payment of, or provisions for, all debts of the Company, the
proceeds of the sale of the Company assets or the Company assets
shall be distributed to the Members in accordance with their
Capital Accounts. If any assets are distributed in kind, they
shall be distributed on the basis of the fair market value
thereof. Unless the Members otherwise agree, there shall be
distributed to the Members as tenants-in-common, an undivided
interest in the assets equal to the distributions to which they
are entitled.
(2) If the Company is "liquidated" within the meaning of Regulation Section
1.704-1(b)(2)(ii)(g), then the liquidating distributions shall
be made by the later of (i) the end of the Company taxable year
in which the liquidation occurs, or (ii) ninety (90) days after
the date of liquidation.
(3) The Company shall terminate when all assets of the Company have been sold
and/or distributed and all affairs of the Company have been
wound up.
15. AMENDMENTS.
This Agreement may be amended by the Members in any manner with the
approval of Members holding a majority of the Interests.
16. MISCELLANEOUS PROVISIONS.
A.Governing Law.
This Agreement and the rights and liabilities of the parties shall be
determined in accordance with the laws of the Commonwealth of
Virginia.
B.Severability.
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of the terms or provisions within this
Agreement.
C.Successors.
Subject to the limits on transferability contained herein, each and all of the
covenants, terms provisions and agreements herein contained
shall be binding upon and inure to the benefit of the
successors, heirs, and assigns of the respective parties.
D.Entire
Agreement.
This Operating
Agreement embodies the entire agreement and understanding
between the Members with respect to the subject matter hereof,
and supersedes all prior agreements and understandings between
such Members relating to the subject matter hereof. No
amendment, modification, termination or waiver of any provision
of this Agreement shall be affected unless the same shall be set
forth in writing signed by Members holding a majority of the
Interests.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year first above written.
MEMBERS:
PEAKWOOD
CAPITAL CORPORATION,
a Virginia corporation
By:
▇▇▇▇ ▇. Head,
President
AERO SERVICES INTERNATIONAL, INC., a Louisiana corporation
By:
R. ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Chairman
