1
EXHIBIT 10.5
OPERATING AGREEMENT
OF
XXXX XXXXXXX PRODUCTIONS, LLC
DATED AS OF
SEPTEMBER 18, 1995
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. "Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3. "Articles of Organization" . . . . . . . . . . . . . . . . . . . . . . . 2
1.4. "Bankruptcy" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5. "Capital Contribution" . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6. "Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7. "Majority-in-Interest of Members" . . . . . . . . . . . . . . . . . . . 2
1.8. "Membership Percentage Interest" . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
ORGANIZATION OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Formation; Qualification . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3. Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5. Principal Place of Business: Registered Office and Agent . . . . . . . . 3
2.6. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7. Organization Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
MEMBERS AND MEMBERS' INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1. Names, Percentage Interest and Capital Contribution of Members . . . . . 4
3.2. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV
MANAGEMENT OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V
CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
i
3
ARTICLE VII
TRANSFER OF MEMBER INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE VIII
DISSOLUTION OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9.1. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.3. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.4. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.5. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.6. Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.7. Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.8. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.9. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ii
4
OPERATING AGREEMENT
OF
XXXX XXXXXXX PRODUCTIONS, LLC
This Operating Agreement of Xxxx Xxxxxxx Productions, LLC, a
New York limited liability company (the "Company"), dated as of September 18,
1995, is made by and between All American Xxxxxxx, Inc., a Delaware corporation
("AAG") and All American Communications, Inc., a Delaware corporation ("AACI")
(individually, a "Member" and, collectively, together with any additional
members hereafter admitted to the Company in accordance with this Agreement,
the "Members").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to enter into this
Agreement to define and express all of their respective rights and obligations
with respect to the formation and operation of the Company as a limited
liability company;
WHEREAS, the parties hereto desire to be bound by the terms of
this Agreement.
NOW, THEREFORE, in consideration of the promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings specified (terms in the singular to have the correlative meaning in
the plural and vice versa):
1.1. "Act" means the New York Limited Liability Company Law,
as amended from time to time.
1.2. "Agreement" means this operating agreement (including
the Exhibits hereto), as originally executed and as amended from time to time,
and the terms "hereof", "hereto" and "hereunder", when used in reference to
this Agreement, refer to this Agreement as a whole, unless the context
otherwise requires.
1
5
1.3. "Articles of Organization" means the Articles of
Organization of the Company to be filed with the New York Department of State
in the form of Exhibit A hereto, as the same may be amended from time to time
in accordance with the Act.
1.4. "Bankruptcy", when used with reference to any Member,
shall be deemed to occur (a) when the Member (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent or has entered against him or her an order for
relief in any bankruptcy or insolvency proceeding, (iv) files a petition or
answer seeking for himself or herself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation, (v) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against him or
her in any proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief or (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of the Member or of all or any substantial part of his properties,
or (b) (i) 120 days after the commencement of any proceeding against the Member
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, the
proceeding has not been dismissed, or (ii) 90 days after the appointment
without his or her consent or acquiescence of a trustee, receiver or liquidator
of the Member or of all or any substantial part of his or her properties, the
appointment is not vacated or stayed, or within 90 days after the expiration of
any such stay, the appointment is not vacated.
1.5. "Capital Contribution" for each Member means the
aggregate of sums contributed by such Member pursuant to Section 3.1 and
Article V hereof.
1.6. "Code" means the Internal Revenue Code of 1986, as
amended.
1.7. "Majority-in-Interest of Members" means Members whose
aggregate Membership Percentage Interests exceed 50 percentage points. In the
case of determinations to be made by a Majority-in-Interest of Members upon
admission of a new Member, such percentage shall be calculated without giving
effect to the Membership Percentage Interest of the new Member.
1.8. "Membership Percentage Interest" means, as to any
Member, the percentage of the capital and profits interests in the Company.
See Exhibit B.
ARTICLE II
ORGANIZATION OF THE COMPANY
2.1. Formation; Qualification. The Company shall be formed
under the laws of the State of New York on the date of the filing of the
Articles of Organization with the
2
6
New York Department of State. The Members shall cause to be executed and filed
the Articles of Organization and such other documents and instruments with such
appropriate authorities as may be necessary or appropriate from time to time to
comply with all requirements for the formation and operation of a limited
liability company in New York. In addition, the Members shall execute and file
all requisite documents and instruments to enable the Company to qualify to do
business as a foreign limited liability company in each jurisdiction in which,
in the reasonable judgment of the Members, such qualification may be necessary
or appropriate for the conduct of the business of the Company.
2.2. Name. The business of the Company shall be conducted
under the name "Xxxx Xxxxxxx Productions, LLC."
2.3. Purposes. The purpose for which the Company is formed
is to engage in any lawful business, purpose or other activity subject to the
provisions of section 202 of the Act.
2.4. Powers. The Company shall possess and may exercise
all powers necessary or convenient to the conduct, promotion or attainment of
its business, purposes or activities, to the fullest extent provided in the
Act.
2.5. Principal Place of Business: Registered Office and Agent.
(a) The principal place of business of the Company shall
be located at such place as shall be determined by the Members.
(b) The Company's registered office shall be at the
office of its registered agent located at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 and
the registered agent at such address shall be CT Corporation. The registered
office and agent may be changed from time to time by the Members by amending
the Articles of Organization in accordance with the provisions of this
Agreement and the Act.
2.6. Term. The term of the Company shall be fifty (50)
years from the date of the filing of the Articles of Organization with the New
York Department of State, unless the Company is earlier dissolved in accordance
with the provisions of this Agreement or the Act.
2.7. Organization Expenses. The Company shall pay all
expenses incurred in connection with the formation and organization of the
Company. Such expenses shall include, without limitation, fees of legal
counsel, fees of a registered agent, registration fees and other like expenses.
Each Member, however, shall bear its own expenses in connection with its
consideration of an investment and its acquisition of a membership interest in
the Company, including, without limitation, the fees of any attorney, financial
advisor or other consultant.
3
7
ARTICLE III
MEMBERS AND MEMBERS' INTERESTS
3.1. Names, Percentage Interest and Capital Contribution of
Members. The names of the Members, their respective Membership Percentage
Interests in the Company and their initial Capital Contributions to the Company
are set forth on Exhibit B hereto.
3.2. Limitation on Liability. No Member shall be liable
under a judgment, decree or order of any court, or in any other manner, for a
debt, obligation or liability of the Company, except as provided by law or as
specifically provided otherwise herein.
ARTICLE IV
MANAGEMENT OF THE COMPANY
The Company shall be managed exclusively by the Members of the
Company in their membership capacity.
ARTICLE V
CAPITAL CONTRIBUTIONS
The Members shall make the Capital Contributions set forth on
Exhibit B.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
The profits and losses shall be allocated and distributions
shall be made between the Members in accordance with their Membership
Percentage Interests.
ARTICLE VII
TRANSFER OF MEMBER INTERESTS
No Member shall have the right to confer upon a non-member all
the attributes of the Member's interests in the Company without the consent of
the non-transferring Member. No Member may transfer its interest in the
Company or any interest therein, and any attempt to do so will be null and
void.
4
8
ARTICLE VIII
DISSOLUTION OF THE COMPANY
(a) The Company shall be dissolved, its assets disposed
of and its affairs wound up upon the first to occur of the following:
(i) the expiration of the Company's term as
stated in Section 2.6 hereof;
(ii) the death, insanity, retirement, resignation,
expulsion, incapacity, withdrawal, Bankruptcy or dissolution of a Member;
(iii) a determination by the unanimous written
consent of all the Members that the Company should be dissolved;
(iv) the sale of all or substantially all of the
assets of the Company;
(v) the entry of a decree of judicial dissolution
under section 702 of the Act; and
(vi) at such earlier time as may be required by
applicable law.
(b) Notwithstanding the foregoing, a Majority-in-Interest
of Members (determined on the basis solely of the remaining Members) may,
within 90 days of any event described in (a) hereof (i) continue the Company or
(ii) transfer the assets of the Company to a newly organized company and accept
an interest in the Company in exact proportion to their respective interests in
the Company at the time of dissolution.
ARTICLE IX
MISCELLANEOUS
9.1. Notices. All notices and other communications under
this Agreement shall be in writing and shall be deemed given when (a) delivered
by hand, (b) transmitted by telecopier (and confirmed by return facsimile), or
(c) delivered, if sent by Express Mail, Federal Express or other express
delivery service, or registered or certified mail, return receipt requested, to
the addressee at the following addresses or telecopier numbers (or to such
other addresses, telex number or telecopier number as a party may specify by
notice given to the other party pursuant to this provision):
5
9
If to Xxxx Xxxxxxx Productions, LLC:
0000 Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: All American Communications, Inc. (Operator)
Telecopier No.: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to All American Xxxxxxx, Inc.
0000 Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to All American Communications, Inc.
0000 Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
6
10
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
9.2. Amendments. Except as otherwise provided herein, this
Agreement may be amended, modified or revised, in whole or in part, by the
consent of a Majority-In-Interest of Members.
9.3. Binding Effect. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto, their
respective personal representatives, heirs, successors and permitted assigns;
provided, however, that nothing contained in this Section 9.3 shall be
construed to permit any attempted assignment or other transfer which would be
prohibited or void pursuant to any other provision of this Agreement.
9.4. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
9.5. Headings. All headings contained in this Agreement are
inserted as a matter of convenience and for ease of reference only and shall
not be considered in the construction or interpretation of any provision of
this Agreement.
9.6. Exhibits. All exhibits annexed hereto are expressly
made a part of this Agreement, as fully as though completely set forth herein,
and all references to this Agreement herein or in any of such exhibits shall be
deemed to refer to and include all such exhibits or schedules.
9.7. Terms. Common nouns and pronouns shall be deemed to
refer to masculine, feminine, neuter, singular or plural, as the identity of
the person or persons may require.
9.8. Severability. Each provision hereof is intended to be
severable. If any term or provision is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
9.9. Entire Agreement. This Agreement, including all
Exhibits hereto, constitutes the entire agreement of the parties hereto with
respect to the matters hereof and supersedes any prior oral and written
understandings or agreements.
7
11
9.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of law principles thereof.
IN WITNESS WHEREOF, this Operating Agreement has been executed
as of the date first above written.
ALL AMERICAN XXXXXXX, INC.
A Delaware corporation
/s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Executive Vice President
ALL AMERICAN COMMUNICATIONS, INC.
A Delaware corporation
/s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Executive Vice President
8
12
EXHIBIT A
ARTICLES OF ORGANIZATION
9
13
EXHIBIT B
MEMBERS
Initial Capital Membership
Name Contribution Percentage Interest
---- --------------- -------------------
All American Xxxxxxx, Inc., $25.00 25%
a Delaware corporation
All American Communications, Inc., $75.00 75%
a Delaware corporation
10