Exhibit 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
CENTENNIAL CELLULAR OPERATING CO. LLC
This Limited Liability Company Agreement of Centennial Cellular
Operating Co. LLC (the "Company"), is made as of November 30, 1998, by
Centennial Finance Corp., a Delaware corporation ("Parent"), and the Persons who
become members of the Company in accordance with the provisions hereof and whose
names are set forth as Members on Schedule A hereto.
WHEREAS, Parent desires to form a limited liability company pursuant to
the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101, et seq.,
as amended from time to time (the "Delaware Act"), by filing a Certificate of
Formation of the Company with the office of the Secretary of State of the State
of Delaware and entering into this Agreement.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally bound,
the Members hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise requires, the
terms defined in this Article I shall, for the purposes of this Agreement, have
the meanings herein specified.
"Additional Members" has the meaning set forth in Section 13.1 hereof.
"Affiliate" means with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person. As used in this definition, the term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agreement" means this Limited Liability Company Agreement of the
Company, as amended, modified, supplemented or restated from time to time.
"Capital Account" means, with respect to any Member, the account
maintained for such Member in accordance with the provisions of Section 4.4
hereof.
"Capital Contribution" means, with respect to any Member, the aggregate
amount of money and the fair market value of any property (other than money)
contributed to the Company pursuant to Section 4.1 hereof with respect to such
Member's Interest.
"Certificate" means the Certificate of Formation of the Company and any
and all amendments thereto and restatements thereof filed on behalf of the
Company with the office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding federal tax statute enacted after the date of this
Agreement. A reference to a specific section of the Code refers not only to such
specific section but also to any corresponding provision of any federal tax
statute enacted after the date of this Agreement, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Agreement containing such reference.
"Company" means Centennial Cellular Operating Co. LLC, the limited
liability company formed and continued under and pursuant to the Delaware Act
and this Agreement.
"Covered Person" means a Member, any Affiliate of a Member, any
officers, directors, shareholders, partners, employees, representatives or
agents of a Member, or their respective Affiliates, or any employee or agent of
the Company or its Affiliates.
"Delaware Act" means the Delaware Limited Liability Company Act, 6
Del.C. Sections 18-101, et seq., as amended from time to time.
"Fiscal Year" means (i) the period commencing upon the formation of the
Company and ending on December 31, 1998, (ii) any subsequent twelve (12) month
period commencing on January 1 and ending on December 31, or (iii) any portion
of the period described in clause (ii) of this sentence for which the Company is
required to allocate Profits, Losses and other items of Company income, gain,
loss or deduction pursuant to Article VIII hereof.
"Interest" means a Member's limited liability company interest in the
Company which represents such Member's share of the profits and losses of the
Company and a Member's right to receive distributions of the Company's assets in
accordance with the provisions of this Agreement and the Delaware Act.
"Member" means Parent and includes any Person admitted as an Additional
Member pursuant to the provisions of this Agreement, in such Person's capacity
as a member of the Company; and "Members" means two (2) or more of such Persons
when acting in their capacities
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as members of the Company. For purposes of the Delaware Act, the Members shall
constitute one (1) class or group of members.
"Net Cash Flow" means, for each Fiscal Year or other period of the
Company, the gross cash receipts of the Company from all sources, but excluding
any amounts, such as gross receipts taxes, that are held by the Company as a
collection agent or in trust for others or that are otherwise not
unconditionally available to the Company, less all amounts paid by or for the
account of the Company during the same Fiscal Year or other period (including,
without limitation, payments of principal and interest on any Company
indebtedness and expenses reimbursed to the Members under Section 5.2 hereof),
and less any amounts determined by the Members to be necessary to provide a
reasonable reserve for working-capital needs or any other contingencies of the
Company. Net Cash Flow shall be determined in accordance with the cash receipts
and disbursements method of accounting and otherwise in accordance with
generally accepted accounting principles consistently applied. Net Cash Flow
shall not be reduced by depreciation, amortization, cost recovery deductions,
depletion, similar allowances or other non-cash items, but shall be increased by
any reduction of reserves previously established.
"Percentage Interest" means the Interest of a Member, expressed as a
portion of one hundred percent, as shown on Schedule A hereto.
"Person" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"Profits" and "Losses" means, for each Fiscal Year, an amount equal to
the Company's taxable income or loss for such Fiscal Year, determined in
accordance with Section 703(a) of the Code.
"Tax Matters Partner" has the meaning set forth in Section 11.1 hereof.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
Section 1.2 Headings. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE II
FORMATION AND TERM
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Section 2.1 Formation.
2.1.1 The Members hereby form the Company as a limited
liability company under and pursuant to the provisions of the Delaware
Act and agree that the rights, duties and liabilities of the Members
shall be as provided in the Delaware Act, except as otherwise provided
herein.
2.1.2 Upon the execution of this Agreement or a counterpart of
this Agreement, Parent shall be admitted as the sole member of the
Company.
2.1.3 The name and mailing address of each Member and the
amount contributed to the capital of the Company shall be listed on
Schedule A attached hereto. The Members shall be required to update
Schedule A from time to time as necessary to accurately reflect the
information therein. Any amendment or revision to Schedule A made in
accordance with this Agreement shall not be deemed an amendment to this
Agreement. Any reference in this Agreement to Schedule A shall be
deemed to be a reference to Schedule A as amended and in effect from
time to time.
2.1.4 Parent, as an authorized person within the meaning of
the Delaware Act, shall execute, deliver and file the Certificate.
Section 2.2 Name. The name of the Company formed hereby is Centennial
Cellular Operating Co. LLC. The business of the Company may be conducted upon
compliance with all applicable laws under any other name designated by the
Members.
Section 2.3 Term. The term of the Company shall commence on the date
the Certificate is filed in the office of the Secretary of State of the State of
Delaware and shall continue until December 31, 2030, unless the Company is
dissolved before such date in accordance with the provisions of this Agreement.
The existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate in the manner required by the Delaware Act.
Section 2.4 Registered Agent and Office. The Company's registered agent
and office in the State of Delaware shall be CSC - Corporation Service Company,
0000 Xxxxxx Xxxx, Xxxxxxxxxx (Xxxxxx xx Xxx Xxxxxx), Xxxxxxxx 00000. At any
time, the Members may designate another registered agent and/or registered
office.
Section 2.5 Principal Place of Business. The principal place of
business of the Company shall be c/o Welsh, Carson, Xxxxxxxx & Xxxxx, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000. At any time, the Members may change the
location of the Company's principal place of business.
Section 2.6 Qualification in Other Jurisdictions. The Members shall, if
required by law or if deemed advisable by the Members, cause the Company to be
qualified, formed or registered
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under assumed or fictitious name statutes or similar laws in any jurisdiction in
which the Company transacts business. Parent, as an authorized person within the
meaning of the Delaware Act, shall execute, deliver and file any certificates
(and any amendments and/or restatements thereof) necessary for the Company to
qualify to do business in a jurisdiction in which the Company may wish to
conduct business.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose. The Company is formed for the object and purpose
of, and the nature of the business to be conducted and promoted by the Company
is, engaging in any lawful act or activity for which limited liability companies
may be formed under the Delaware Act and engaging in any and all activities
necessary, convenient, desirable or incidental to the foregoing, including,
without limitation, acquiring, holding, managing, operating and disposing of
securities of corporations, partnerships, limited liability companies and
trusts.
Section 3.2 Powers of the Company.
3.2.1 The Company shall have the power and authority to take
any and all actions necessary, appropriate, proper, advisable,
incidental or convenient to or for the furtherance of the purpose set
forth in Section 3.1, including, but not limited to, the power:
3.2.1.1 to conduct its business, carry on its operations and
have and exercise the powers granted to a limited liability
company by the Delaware Act in any state, territory, district
or possession of the United States, or in any foreign country
that may be necessary, convenient or incidental to the
accomplishment of the purpose of the Company;
3.2.1.2 to acquire by purchase, contribution of property or
otherwise, own, hold, operate, maintain, finance, sell,
convey, transfer, or dispose of any securities or other
personal property that may be necessary, convenient or
incidental to the accomplishment of the purpose of the
Company;
3.2.1.3 to enter into, perform and carry out contracts of any
kind, including, without limitation, contracts with any
Member, any Affiliate thereof, or any agent of the Company
necessary to, in connection with, convenient to, or incidental
to the accomplishment of the purpose of the Company;
3.2.1.4 to purchase, take, receive, subscribe for or otherwise
acquire, own, hold, vote, use, employ, sell, mortgage, lend,
pledge, or otherwise dispose of, and
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otherwise use and deal in and with, shares or other interests
in or obligations of domestic or foreign corporations,
associations, general or limited partnerships (including,
without limitation, the power to be admitted as a partner
thereof and to exercise the rights and perform the duties
created thereby), trusts, limited liability companies
(including, without limitation, the power to be admitted as a
member or appointed as a manager thereof and to exercise the
rights and perform the duties created thereof), or individuals
or direct or indirect obligations of the United States or of
any government, state, territory, governmental district or
municipality or of any instrumentality of any of them;
3.2.1.5 to lend money for its proper purpose, to invest and
reinvest its funds, to take and hold real and personal
property for the payment of funds so loaned or invested;
3.2.1.6 to xxx and be sued, complain and defend, and
participate in administrative or other proceedings, in its
name;
3.2.1.7 to appoint employees and agents of the Company, and
define their duties and fix their compensation;
3.2.1.8 to indemnify any Person in accordance with the
Delaware Act and to obtain any and all types of insurance;
3.2.1.9 to cease its activities and cancel its Certificate;
3.2.1.10 to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, execute, acknowledge or take
any other action with respect to any lease, contract or
security agreement in respect of any assets of the Company;
3.2.1.11 to borrow money and issue evidences of indebtedness,
and to secure the same by a mortgage, pledge or other lien on
the assets of the Company;
3.2.1.12 to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any and all other claims or demands
of or against the Company or to hold such proceeds against the
payment of contingent liabilities; and
3.2.1.13 to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental
to the accomplishment of the purpose of the Company.
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3.2.2 The Company may merge with, or consolidate into, another
Delaware limited liability company or other business entity (as defined
in Section 18-209(a) of the Delaware Act) upon the approval of all of
the Members.
ARTICLE IV
CAPITAL CONTRIBUTIONS, INTERESTS,
CAPITAL ACCOUNTS AND ADVANCES
Section 4.1 Capital Contributions.
4.1.1 Each Member has contributed or is deemed to have
contributed to the capital of the Company the amount set forth opposite
the Member's name on Schedule A attached hereto. The agreed value of
the Capital Contributions made or deemed to have been made by each
Member shall be set forth on Schedule A.
4.1.2 No Member shall be required to make any additional
capital contribution to the Company. However, a Member may make
additional capital contributions to the Company with the written
consent of all of the Members.
Section 4.2 Member's Interest. A Member's Interest shall for all
purposes be personal property. A Member has no interest in specific Company
property.
Section 4.3 Status of Capital Contributions.
4.3.1 Except as otherwise provided in this Agreement, the
amount of a Member's Capital Contributions may be returned to it, in
whole or in part, at any time, but only with the consent of all of the
Members. Any such returns of Capital Contributions shall be made to all
Members in proportion to the Percentage Interests. Notwithstanding the
foregoing, no return of a Member's Capital Contributions shall be made
hereunder if such distribution would violate applicable state law.
Under circumstances requiring a return of any Capital Contribution, no
Member shall have the right to demand or receive property other than
cash, except as may be specifically provided in this Agreement.
4.3.2 No Member shall receive any interest, salary or drawing
with respect to its Capital Contributions or its Capital Account or for
services rendered on behalf of the Company or otherwise in its capacity
as a Member, except as otherwise specifically provided in this
Agreement.
4.3.3 Except as otherwise provided herein and by applicable
state law, the Members shall be liable only to make their capital
contributions pursuant to Section 4.1 hereof, and no Member shall be
required to lend any funds to the Company or, after a
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Member's Capital Contributions have been fully paid pursuant to Section
4.1 hereof, to make any additional capital contributions to the
Company. No Member shall have any personal liability for the repayment
of any Capital Contribution of any other Member.
Section 4.4 Capital Accounts.
4.4.1 An individual Capital Account shall be established and
maintained for each Member.
4.4.2 The Capital Account of each Member shall be maintained
in accordance with the following provisions:
4.4.3 to such Member's Capital Account there shall be credited
such Member's Capital Contributions (consisting of cash or the
fair market value of any property net of any liabilities
secured by such contributed property that the Company is
considered to assume or take subject to under Section 752 of
the Code); such Member's distributive share of Profits; and
such Member's distributive share of other items of income,
gain or credits; and
4.4.4 from such Member's Capital Account there shall be
debited the amount of cash and the fair market value of
property distributed by the Company to such Member (net of
liabilities secured by such distributed property which the
Member is considered to assume or take subject to under
Section 752 of the Code); such Member's distributive share of
Losses; and such Member's distributive share of other items of
loss or deduction.
Section 4.5 Advances. If any Member shall advance any funds to the
Company in excess of its Capital Contributions, the amount of such advance shall
neither increase its Capital Account nor entitle it to any increase in its share
of the distributions of the Company. The amount of any such advance shall be a
debt obligation of the Company to such Member and shall be subject to such terms
and conditions acceptable to the Company and each Member. Any such advance shall
be payable and collectible only out of Company assets, and the other Members
shall not be personally obligated to repay any part thereof. No Person who makes
any nonrecourse loan to the Company shall have or acquire, as a result of making
such loan, any direct or indirect interest in the profits, capital or property
of the Company, other than as a creditor.
ARTICLE V
MEMBERS
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Section 5.1 Powers of Members. The Members shall have the power to
exercise any and all rights or powers granted to the Members pursuant to the
express terms of this Agreement and the Delaware Act.
Section 5.2 Reimbursements. The Company shall reimburse the Members for
all ordinary and necessary out-of-pocket expenses incurred by the Members on
behalf of the Company. Such reimbursement shall be treated as an expense of the
Company that shall be deducted in computing the Net Cash Flow and shall not be
deemed to constitute a distributive share of Profits or a distribution or return
of capital to any Member.
Section 5.3 Partition. Each Member waives any and all rights that it
may have to maintain an action for partition of the Company's property.
Section 5.4 Resignation. A Member may not resign from the Company
without the written consent of all of the other Members.
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Company.
6.1.1 In accordance with Section 18-402 of the Delaware Act,
management of the Company shall be vested in the Members. Except as
otherwise expressly provided herein, whenever this Agreement requires
or permits actions to be taken by the Members, the decision by Members
owning more than fifty percent (50%) of the Percentage Interests shall
control.
6.1.2 The Members shall have full, exclusive and complete
discretion to manage the business and affairs of the Company, to make
all decisions affecting the business and affairs of the Company and to
take such actions as they deem necessary or appropriate to accomplish
the purpose of the Company as set forth herein. There shall not be a
"manager" (within the meaning of the Delaware Act) of the Company.
6.1.3 With respect to third parties, each Member is an agent
of the Company's business, and each Member may bind the Company. If a
Member binds the Company, but did not have the authority to so act
under this Agreement (including by failing to obtain necessary consents
from other Members), in addition to any other remedy (at law or in
equity) that may be available against such Member, such Member shall be
liable for all damages caused by breaching this Agreement.
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Section 6.2 Reliance by Third Parties. Any Person dealing with the
Company or any Member may rely upon a certificate signed by any Member as to:
6.2.1 the identity of a Member of the Company;
6.2.2 the existence or non-existence of any fact or facts which
constitute a condition precedent to acts by the Members or in any other
manner germane to the affairs of the Company;
6.2.3 the Persons who are authorized to execute and deliver any
instrument or document of, or on behalf of, the Company; or
6.2.4 any act or failure to act by the Company or as to any
other matter whatsoever involving the Company or any Member.
ARTICLE VII
AMENDMENTS AND MEETINGS
Section 7.1 Amendments. Any amendment to this Agreement shall be
adopted and be effective as an amendment hereto if it receives the affirmative
vote of all of the Members; provided that such amendment be in writing and
executed by all of the Members.
Section 7.2 Meetings of the Members.
7.2.1 Meetings of the Members may be called at any time by any
Member. Notice of any meeting shall be given to all Members not less
than two (2) days nor more than thirty (30) days prior to the date of
such meeting. Each Member may authorize any Person to act for it by
proxy on all matters in which a Member is entitled to participate,
including waiving notice of any meeting, or voting or participating at
a meeting. Every proxy must be signed by the Member or its
attorney-in-fact.
7.2.2 The Members shall establish all other provisions
relating to meetings of Members, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Members, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
7.2.3 The Company may take any action contemplated by this
Agreement as approved by the unanimous written consent of the Members.
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ARTICLE VIII
ALLOCATIONS
Section 8.1 Profits and Losses.
8.1.1 Subject to the allocation rules of Section 8.2 hereof,
Profits for any Fiscal Year shall be allocated among the Members in
proportion to the Percentage Interests.
8.1.2 Subject to the allocation rules of Section 8.2 hereof,
Losses for any Fiscal Year shall be allocated among the Members in
proportion to the Percentage Interests.
Section 8.2 Allocation Rules.
8.2.1 For purposes of determining the Profits, Losses or any
other items allocable to any period, Profits, Losses and any such other
items shall be determined on a daily, monthly or other basis, as
determined by the Members using any method that is permissible under
Section 706 of the Code and the Treasury Regulations thereunder.
8.2.2 Except as otherwise provided in this Agreement, all
items of Company income, gain, loss, deduction and any other
allocations not otherwise provided for shall be divided among the
Members in the same proportions as they share Profits and Losses for
the Fiscal Year in question.
8.2.3 The Members are aware of the income tax consequences of
the allocations made by this Article VIII and hereby agree to be bound
by the provisions of this Article VIII in reporting their shares of
Company income and loss for income tax purposes.
8.2.4 The Members intend that the allocation provisions set
forth in this Agreement are intended to comply with Section 704(b) of
the Code and the Treasury Regulations issued thereunder and the
provisions are to be interpreted in a manner consistent with those
Treasury Regulations.
Section 8.3 Tax Allocations; Section 704(c) of the Code. In accordance
with Section 704(c) of the Code and the Treasury Regulations thereunder, income,
gain, loss and deduction with respect to any property contributed to the capital
of the Company shall, solely for income tax purposes, be allocated among the
Members so as to take account of any variation between the adjusted basis of
such property to the Company for federal income tax purposes and its initial
fair market value.
ARTICLE IX
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DISTRIBUTIONS
Section 9.1 Net Cash Flow. Except as otherwise provided in Article XV
hereof (relating to the dissolution of the Company), any distribution of the Net
Cash Flow during any Fiscal Year shall be made to the Members in proportion to
the Percentage Interests.
Section 9.2 Distribution Rules. All distributions pursuant to Section
9.1 hereof shall be at such times and in such amounts as shall be determined by
the Members.
Section 9.3 Limitations on Distribution. Notwithstanding any provision
to the contrary contained in this Agreement, the Company shall not make a
distribution to any Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Delaware Act or other
applicable law.
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Books, Records and Financial Statements.
10.1.1 At all times during the continuance of the Company, the
Company shall maintain, at its principal place of business, separate
books of account for the Company that shall show a true and accurate
record of all costs and expenses incurred, all charges made, all
credits made and received and all income derived in connection with the
operation of the Company business in accordance with generally accepted
accounting principles consistently applied, and, to the extent
inconsistent therewith, in accordance with this Agreement. Such books
of account, together with a copy of this Agreement and of the
Certificate, shall at all times be maintained at the principal place of
business of the Company and shall be open to inspection and examination
at reasonable times by each Member and its duly authorized
representative for any purpose reasonably related to such Member's
interest in the Company.
10.1.2 The Members shall prepare and maintain, or cause to be
prepared and maintained, the books of account of the Company. The
Members shall prepare and file, or cause to be prepared and filed, all
applicable federal and state tax returns.
Section 10.2 Accounting Method. For both financial and tax reporting
purposes and for purposes of determining Profits and Losses, the books and
records of the Company shall be kept on the accrual method of accounting applied
in a consistent manner and shall reflect all Company transactions and be
appropriate and adequate for the Company's business.
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Section 10.3 Annual Audit. At any time at a Member's sole discretion,
the financial statements of the Company may be audited by an independent
certified public accountant, selected by such Member, with such audit to be
accompanied by a report of such accountant containing its opinion. The cost of
such audits will be an expense of the Company. A copy of any such audited
financial statements and accountant's report will be made available for
inspection by the Members.
ARTICLE XI
TAX MATTERS
Section 11.1 Tax Matters Partner.
11.1.1 Parent is hereby designated as "Tax Matters Partner" of
the Company for purposes of Section 6231(a)(7) of the Code. Parent may
not choose a forum for the resolution of tax matters or extend any
statute of limitation without the written consent of all of the
Members.
11.1.2 The Tax Matters Partner shall, within ten (10) days of
the receipt of any notice from the Internal Revenue Service in any
administrative proceeding at the Company level relating to the
determination of any Company item of income, gain, loss, deduction or
credit, mail or otherwise deliver a copy of such notice to each Member.
Section 11.2 Taxation as Partnership. The Company shall be treated as
a partnership for U.S. federal income tax purposes.
ARTICLE XII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability. Except as otherwise provided by the Delaware
Act, the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Covered Person shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Covered Person.
Section 12.2 Exculpation.
12.2.1 No Covered Person shall be liable to the Company or any
other Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a
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manner reasonably believed to be within the scope of authority
conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim
incurred by reason of such Covered Person's gross negligence or willful
misconduct.
12.2.2 A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information,
opinions, reports or statements presented to the Company by any Person
as to matters the Covered Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, Profits,
Losses or Net Cash Flow or any other facts pertinent to the existence
and amount of assets from which distributions to Members might properly
be paid.
Section 12.3 Fiduciary Duty. To the extent that, at law or in equity, a
Covered Person has duties (including fiduciary duties) and liabilities relating
thereto to the Company or to any other Covered Person, a Covered Person acting
under this Agreement shall not be liable to the Company or to any Member for its
good faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Covered Person.
Section 12.4 Indemnification. To the fullest extent permitted by
applicable law, a Covered Person shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such Covered Person by reason
of any act or omission performed or omitted by such Covered Person in good faith
on behalf of the Company and in a manner reasonably believed to be within the
scope of authority conferred on such Covered Person by this Agreement, except
that no Covered Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Covered Person by reason of gross
negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 12.4 shall be provided
out of and to the extent of Company assets only, and no Covered Person shall
have any personal liability on account thereof.
Section 12.5 Expenses. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by a Covered Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Company prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Company of an undertaking by or
on behalf of the Covered Person to repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as authorized in
Section 12.4 hereof.
Section 12.6 Insurance. The Company may purchase and maintain
insurance, to the extent and in such amounts as the Members shall, in their sole
discretion, deem reasonable, on behalf of Covered Persons and such other Persons
as the Members shall determine, against any
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liability that may be asserted against or expenses that may be incurred by any
such Person in connection with the activities of the Company or such
indemnities, regardless of whether the Company would have the power to indemnify
such Person against such liability under the provisions of this Agreement. The
Members and the Company may enter into indemnity contracts with Covered Persons
and such other Persons as the Members shall determine and adopt written
procedures pursuant to which arrangements are made for the advancement of
expenses and the funding of obligations under Section 12.5 hereof and containing
such other procedures regarding indemnification as are appropriate.
Section 12.7 Outside Businesses. Any Member or Affiliate thereof may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Company, and the Company and the Members shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper. No Member
or Affiliate thereof shall be obligated to present any particular investment
opportunity to the Company even if such opportunity is of a character that, if
presented to the Company, could be taken by the Company, and any Member or
Affiliate thereof shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment opportunity.
ARTICLE XIII
ADDITIONAL MEMBERS
Section 13.1 Admission. By approval of all of the Members, the Company
is authorized to admit any Person as an additional member of the Company (each,
an "Additional Member" and collectively, the "Additional Members"). Each such
Person shall be admitted as an Additional Member at the time such Person (i)
executes this Agreement or a counterpart of this Agreement and (ii) is named as
a Member on Schedule A hereto. The legal fees and expenses associated with such
admission shall be borne by the Company.
Section 13.2 Allocations. Additional Members shall not be entitled to
any retroactive allocation of the Company's income, gains, losses, deductions,
credits or other items; provided that, subject to the restrictions of Section
706(d) of the Code, Additional Members shall be entitled to their respective
share of the Company's income, gains, losses, deductions, credits and other
items arising under contracts entered into before the effective date of the
admission of any Additional Members to the extent that such income, gains,
losses, deductions, credits and other items arise after such effective date. To
the extent consistent with Section 706(d) of the Code and Treasury Regulations
promulgated thereunder, the Company's books may be closed at the time Additional
Members are admitted (as though the Company's tax year had ended) or the Company
may credit to the Additional Members pro rata allocations of the Company's
income,
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gains, losses, deductions, credits and items for that portion of the
Company's Fiscal Year after the effective date of the admission of the
Additional Members.
ARTICLE XIV
ASSIGNABILITY AND SUBSTITUTE MEMBERS
Section 14.1 Assignability of Interests. No Member may assign the whole
or any part of its Interests.
Section 14.2 Recognition of Assignment by Company. No assignment or
pledge of any Interest, or any part thereof, that is in violation of this
Article XIV shall be valid or effective, and neither the Company nor the Members
shall recognize the same for the purpose of making distributions pursuant to
this Agreement. Neither the Company nor the Members shall incur any liability as
a result of refusing to make any such distributions to the assignee of any such
invalid assignment.
Section 14.3 Pledge. No Member may pledge or otherwise encumber the
whole or any part of its Interests.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution. The Company shall not be dissolved by the
admission of Additional Members in accordance with the terms of this Agreement.
Section 15.2 Events Causing Dissolution. The Company shall be dissolved
and its affairs shall be wound up upon the occurrence of any of the following
events:
15.2.1 the expiration of the term of the Company, as provided
in Section 2.3 hereof;
15.2.2 the written consent of all Members;
15.2.3 the death, retirement, resignation, expulsion,
bankruptcy or dissolution of a Member or the occurrence of any other
event under the Delaware Act that terminates the continued membership
of a Member in the Company unless, within ninety (90) days after the
occurrence of such an event, all of the remaining Members agree in
writing to continue the business of the Company; or
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15.2.4 the entry of a decree of judicial dissolution under
Section 18-802 of the Delaware Act.
Section 15.3 Liquidation. Upon dissolution of the Company, the Members
shall carry out the winding up of the Company and shall immediately commence to
wind up the Company's affairs; provided, however, that a reasonable time shall
be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of liabilities to creditors so as to enable the Members to minimize
the normal losses attendant upon a liquidation. The Members shall continue to
share Profits and Losses during liquidation in the same proportions, as
specified in Article VIII hereof, as before liquidation. The proceeds of
liquidation shall be distributed in the following order and priority:
15.3.1 to creditors of the Company, including Members who are
creditors, to the extent otherwise permitted by law, in satisfaction of
the liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof); and
15.3.2 to the Members in accordance with their Capital Account
balances, after giving effect to all contributions, distributions and
allocations for all periods.
Section 15.4 Termination. The Company shall terminate when all of the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article XV and the Certificate shall
have been canceled in the manner required by the Delaware Act.
Section 15.5 Claims of the Members. The Members and former Members
shall look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall have no recourse against the Company or any other Member.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Notices. All notices provided for in this Agreement shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, mailed via an overnight courier service, telecopied or mailed by
registered or certified mail, as follows:
16.1.1 If given to the Company, to the address set forth in
Section 2.5 hereof.
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16.1.2 If given to any Member, to the address set forth
opposite its name on Schedule A attached hereto, or at such other
address as such Member may hereafter designate by written notice to the
Company.
All such notices shall be deemed to have been given when received.
Section 16.2 Failure to Pursue Remedies. The failure of any party to
seek redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
Section 16.3 Cumulative Remedies. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
Section 16.4 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of all of the parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
Section 16.5 Interpretation. Throughout this Agreement, nouns, pronouns
and verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Articles," "Sections"
and "Paragraphs" shall refer to corresponding provisions of this Agreement.
Section 16.6 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision was omitted.
Section 16.7 Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if all parties hereto had signed the
same document. All counterparts shall be construed together and shall constitute
one instrument.
Section 16.8 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 16.9 Governing Law. This Agreement and the rights of the
parties hereunder shall be interpreted in accordance with the laws of the State
of Delaware, and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
MEMBERS:
CENTENNIAL FINANCE CORP.
By: /s/ Xxxxxxx X. Small
-------------------------
Name: Xxxxxxx X. Small
Title: Chief Executive Officer
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SCHEDULE A
MEMBERS
Mailing Capital Agreed Percentage
Name Address Contribution Value Interest
---- ------- ------------ ------- ----------
Centennial Finance Corp. 000 Xxxx Xxxxxx $100 $100 100%
Xxxxx 0000
Xxx Xxxx, XX 00000
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