Exhibit 3.5
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Willscot Equipment, LLC
LIMITED LIABILITY COMPANY AGREEMENT
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND USAGE............................................1
ARTICLE II
FORMATION; NAME; TERM............................................4
2.1 Formation..............................................4
2.2 Company Name...........................................4
2.3 Effective Date.........................................4
2.4 Term...................................................4
2.5 Registered Agent and Office............................5
2.6 Principal Place of Business............................5
2.7 Filings................................................5
2.8 Purpose................................................5
2.9 Powers of the Company..................................5
2.10 Authorized Person......................................5
2.11 Certificate of Interest................................5
ARTICLE III CAPITAL CONTRIBUTION...................................6
ARTICLE IV DISTRIBUTIONS..........................................6
4.1 General................................................6
4.2 Limits on Distributions................................6
4.3 Withholding............................................6
ARTICLE V ACCOUNTING; FINANCIAL AND TAX MATTERS..................6
5.1 Accounting Method......................................6
5.2 Accounting Records.....................................6
5.3 Fiscal Year............................................6
5.4 Reports................................................7
5.5 Bank and Investment Accounts...........................7
5.6 Tax Elections and Accounting Decisions.................7
5.7 Tax Classification.....................................7
ARTICLE VI MANAGEMENT BY THE MEMBER...............................7
6.1 Management by the Members..............................7
6.2 Admission of New Members...............................7
6.3 Power of Members.......................................8
6.4 Events of Bankruptcy...................................8
ARTICLE VI EXECUTIVE COMMITTEE....................................8
7.1 Executive Committee....................................8
7.2 Meetings of the Executive Committee....................9
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7.3 Quorum and Voting......................................9
7.4 Procedural Matters of the Executive Committee.........10
7.5 Actions of the Company................................10
7.6 Power of the Executive Committee......................11
ARTICLE VII LIABILITY; EXCULPATION; INDEMNIFICATION...............12
8.1 Liability of Members and Executive Committee..........12
8.2 Duties and Liabilities of Covered Persons.............12
8.3 Indemnification.......................................13
ARTICLE IX TRANSFERS.............................................13
9.1 General Restrictions..................................13
9.2 Violative Transfers...................................13
ARTICLE X TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
10.1 Termination of the Company............................14
10.2 Events of Dissolution.................................14
10.3 Liquidation and Winding-Up............................14
10.4 Survival of Rights, Duties and Obligations............15
ARTICLE XI GENERAL PROVISIONS....................................15
11.1 Notices...............................................15
11.2 Entire Agreement; Non-Waiver..........................15
11.3 Further Assurances....................................15
11.4 Applicable Law........................................15
11.5 Severability..........................................16
11.6 Table of Contents and Headings........................16
EXHIBITS
A Certificate of Formation
B Form of Certificate of Interest
C Assets Contributed to the Company by Xxxxxxxx Scotsman, Inc.
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LIMITED LIABILITY COMPANY AGREEMENT
OF
WILLSCOT EQUIPMENT, LLC
This Limited Liability Company Agreement (this "Agreement") of
Willscot Equipment, LLC, a Delaware limited liability company (the "Company"),
dated as of May 22, 1997, is adopted and entered into by Xxxxxxxx Scotsman,
Inc., a Maryland corporation ("Scotsman"), as sole Member ("Member"), (the
"Member" and collectively, with all other Persons who from time to time become
Members pursuant to this Agreement, the "Members"), pursuant to and in
accordance with the Delaware Limited Liability Company Act (6 Del. C. ss. 18-10,
et seq.), as amended from time to time (the "Act"), and the terms of this
Agreement.
WHEREAS, the Company was formed on May 12, 1997, pursuant to the
Act, and the Company's sole member, Scotsman, contributed certain Rental
Equipment (as defined below) and other related assets to the Company on May 22,
1997; and
WHEREAS, the Company was specifically formed to acquire, own, hold,
manage, market, maintain, lease, sell or dispose of Rental Equipment and other
related assets and to engage in any and all activities directly incidental to
the foregoing (including, without limitation, leasing such Rental Equipment to
Scotsman or any of its Subsidiaries (as defined below);
NOW, THEREFORE, the Member hereby agrees as follows:
ARTICLE I
DEFINITIONS AND USAGE
1.1 "Affiliate" shall mean, with respect to any Person, any other
Person, directly or indirectly, controlling, controlled by, or under direct or
indirect common control with, such Person. For the purposes of this definition
"control," when used with respect to any specified Person, shall mean the power
to direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through ownership of voting securities or
partnership or other ownership interests, by contract or otherwise; and the
terms "controlling" and "controlled" shall have correlative meanings.
1.2 "Xxxx of Sale" shall mean the Xxxx of Sale, dated as of May 22,
1997, between Scotsman and the Company.
1.3 "Certificate of Formation" shall mean the certificate of
formation of the Company substantially in the form attached hereto as Exhibit A.
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1.4 "Certificate of Interest" shall mean the certificate evidencing
the Member's interest in the Company, substantially in the form attached hereto
as Exhibit B.
1.5 "Collateral Agent" shall mean BT Commercial Corporation acting
in its capacity as collateral agent under the Pledge Agreement, Subsidiaries
Guaranty and Security Agreement, as the case may be.
1.6 "Credit Agreement" shall mean the Credit Agreement, dated as of
May 22, 1997, among Bankers Trust Company, as issuing bank, BT Commercial
Corporation, as agent, the financial institutions named therein, as lenders,
Scotsman Holdings, Inc., as guarantor, and Scotsman, as borrower.
1.7 "Credit Documents" shall have the meaning given such term in
Section 1.1 of the Credit Agreement.
1.8 "Executive Committee" shall mean the Executive Committee
established pursuant to Section 7.1.
1.9 "GAAP" shall mean generally accepted accounting principles as in
effect in the United States from time to time.
1.10 "Holdings" shall mean Scotsman Holdings, Inc. a Delaware
corporation.
1.11 "Indebtedness" shall mean the indebtedness and other
obligations incurred under the Credit Agreement.
1.12 "Indenture" shall mean the Amended and Restated Indenture,
dated as of May 22, 1997, between Scotsman and First Trust National Association,
as trustee.
1.13 "Master Lease Agreement" shall mean the Master Lease Agreement,
dated as of May 22, 1997, between the Company and Scotsman.
1.14 "Person" shall mean any individual, partnership, company,
corporation, limited liability company, trust, estate, unincorporated
association, syndicate, joint venture or organization, or any government or any
department, agency or political subdivision thereof, or any other entity.
1.15 "Pledge Agreement" shall mean that certain pledge agreement
dated as of May 22, 1997 made by Scotsman, Holdings, the Subsidiary Guarantors
and each other Subsidiary of Scotsman that is required to execute a counterpart
thereof pursuant to Section 23 therein, in each case, in favor of BT Commercial
Corporation, as Collateral Agent (including any successor collateral agent) for
the benefit of the Secured Creditors (as such term is defined therein), as same
may be amended, modified or supplemented from time to time.
1.16 "Rental Equipment" shall mean all existing and future mobile
office and storage container units or other equipment held for rental (or
presently being rented) or sale by Scotsman and its Subsidiaries in the ordinary
course of business.
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1.17 "Scotsman" shall mean Xxxxxxxx Scotsman, Inc., a Maryland
corporation.
1.18 "Security Agreement" shall mean that certain security agreement
dated as of May 22, 1997, between Scotsman, Holdings, the Subsidiary Guarantors
and BT Commercial Corporation, as Collateral Agent for the Secured Creditors (as
such term is defined therein), as same may be amended, modified or supplemented
from time to time.
1.19 "Special Executive" shall mean a Person designated by the
Member who is not, at the time of initial appointment to the Executive Committee
and, at any time during the one year period immediately preceding the time of
initial appointment, was not (a) an employee, officer, director, shareholder or
partner of Scotsman or any of its Affiliates; (b) a customer, supplier or other
Person who derives greater than 10% of its revenues from its activities with
Scotsman or any of its Affiliates; (c) a Person or other entity controlling or
under common control with any such employee, officer, director, shareholder,
partner, customer, supplier or other Person; or (d) a member of the immediate
family of any such employee, officer, director, shareholder, partner, customer,
supplier or other Person.
1.20 "Subsidiary" shall mean, in respect of any Person, any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of capital stock or other interests
(including partnership interests) entitled (without the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
1.21 "Subsidiary Security Agreement" shall mean the Subsidiary
Security Agreement made as of May 22, 1997 by the Company in favor of First
Trust National Association, in its capacity as collateral agent.
1.22 "Subsidiaries Guaranty" shall mean that certain subsidiaries
guaranty dated as of May 22, 1997, made by each Subsidiary Guarantor of
Scotsman, as same be amended, modified or supplemented from time to time.
1.23 "Subsidiary Guarantee" shall mean the Subsidiary Guarantee made
as of May 22, 1997 by the Company in favor of First National Association, in its
capacity as collateral agent and trustee.
1.24 "Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary (as such term is defined in the Credit Agreement) of Scotsman.
1.25 "Transfer" shall mean any transfer, sale, assignment, pledge,
lease, hypothecation, mortgage, gift or creation of security interest, lien or
trust (voting or otherwise) or other encumbrance or other disposition of any
interests. "Transferor" and "Transferee" have correlative meanings and, in
addition, shall mean any Person who, in the case of a Transferor, issues
securities and, in the case of a Transferee, acquires securities so issued.
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1.26 Cross References. Each of the following terms shall have the
meaning assigned thereto in the Section of this Agreement set forth below
opposite such term:
Agreement.......................................... Preamble
Company.............................................Preamble
Covered Person........................................8.2(a)
Dissolution Event.......................................10.2
Effective Date...........................................2.3
Members.............................................Preamble
1.27. Usage Generally. The definitions in Article I shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed to be references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. All Exhibits and Schedules attached hereto shall be deemed incorporated
herein as if set forth in full herein and, unless otherwise defined therein, all
terms used in any Exhibit or Schedule shall have the meaning ascribed to such
term in this Agreement. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". All accounting terms
not defined in this Agreement shall have the meanings determined by GAAP. The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Unless otherwise expressly provided
herein, any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified, replaced or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments incorporated
therein.
ARTICLE II
FORMATION; NAME; TERM
2.1 Formation. Scotsman formed the Company as a limited liability
company on May 12, 1997 under and pursuant to the provisions of the Act. The
Member hereby agrees that the Company shall be governed by the terms and
conditions of this Agreement.
2.2 Company Name. The name of the Company shall be Willscot
Equipment, LLC.
2.3 Effective Date. This Agreement shall become effective upon the
execution by the Member (the "Effective Date").
2.4 Term. The Company shall have perpetual existence unless sooner
dissolved or terminated as provided in the Act or this Agreement.
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2.5 Registered Agent and Office. The Company's registered agent and
office in Delaware shall be the National Corporate Research, Ltd., 0 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
2.6 Principal Place of Business. The principal place of business of
the Company shall be at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 or at
such other or additional place or places as the Member shall determine from time
to time. The Company may have other offices, either within or outside of the
State of Delaware, at such place or places as the Member may from time to time
designate or the business of the Company may require.
2.7 Filings. The Member promptly shall cause the execution and
delivery of such documents and performance of such acts consistent with the
terms of this Agreement as may be necessary to comply with the requirements of
law for the formation, qualification and operation of a limited liability
company under the laws of each jurisdiction in which the Company shall conduct
business.
2.8 Purpose. The purposes of the Company shall be to (i) acquire,
own, hold, manage, market, maintain, lease, sell or dispose of Rental Equipment
and other related assets; (ii) execute, deliver and perform its obligations
under the Subsidiary Guarantee, the Subsidiary Security Agreement and any other
documents that may be required from time to time under the Indenture, (iii)
execute, deliver and perform its obligations under the Credit Documents to which
it is, or may in the future be required to be or choose to be, a party,
including without limitation, the Pledge Agreement, Security Agreement and
Subsidiaries Guaranty, (iv) incur indebtedness permitted under the Indenture and
the Credit Agreement and (v) engage in any and all activities directly
incidental to the foregoing (including, without limitation, leasing such Rental
Equipment to Scotsman or any of its Subsidiaries). In no event shall the Company
acquire any real property or other material asset or engage in any business
activities other than those specified in the preceding sentence.
2.9 Powers of the Company. Except as otherwise limited in this
Agreement, the Company shall have the power and authority to take any and all
actions necessary, appropriate, proper, advisable, convenient or incidental to
or for the furtherance of the purposes set forth in Section 2.8.
2.10 Authorized Person. Xxxxxxxxxxx X. Xxxxxxx hereby is designated
as an authorized person, within the meaning of the Act, to execute, deliver and
file the Certificate of Formation.
2.11 Certificate of Interest. The Member's interest in the Company
shall be evidenced by a Certificate of Interest issued by the Company on the
Effective Date.
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ARTICLE III
CAPITAL CONTRIBUTION
On or prior to the Effective Date, Scotsman will contribute to the
capital of the Company the assets listed on Schedule A hereto.
ARTICLE IV
DISTRIBUTIONS
4.1 General. The Company shall make such distributions as shall be
determined by the Member. The Member shall be entitled to receive any
distribution from the Company except as provided in this Agreement.
4.2 Limits on Distributions. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution
to any Member with respect to such Member's interest if such distribution would
violate Section 18-607 of the Act or other applicable law.
4.3 Withholding. Any payments required to be made by the Company to
the Member hereunder shall be net of any and all amounts required to be deducted
and withheld from such payments under applicable law. The Member hereby consents
to the deduction and withholding of any such amounts, agrees to cooperate fully
with the Company in determining the amount of any required withholdings, and
agrees promptly to return to the Company upon request any amounts that the
Company erroneously fails to deduct and withhold from any payment hereunder.
ARTICLE V
ACCOUNTING; FINANCIAL AND TAX MATTERS
5.1 Accounting Method. The Company shall keep its accounting records
and shall report its profits or losses on the accrual method of accounting in
accordance with GAAP.
5.2 Accounting Records. The Company shall keep complete and accurate
business and accounting records reflecting all transactions of the Company. The
Company's records shall be maintained at the principal place of business of the
Company and shall be subject to inspection or examination by the Member at all
reasonable times.
5.3 Fiscal Year. The fiscal year of the Company initially shall end
on December 31 of each year.
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5.4 Reports.
(a) As soon as practicable but in any event within 90 days after the
close of each fiscal year of the Company, the Company shall prepare and deliver,
or cause to be prepared and delivered, to the Member the following financial
statements: (i) a balance sheet of the Company as at the end of such fiscal
year; (ii) a statement of net profit and net loss for such fiscal year; and
(iii) a statement of cash flows of the Company for such fiscal year.
(b) The Company shall prepare, or cause to be prepared, and shall
file all tax returns, be they information returns or otherwise, which are
required to be filed with the Internal Revenue Service, state and local tax
authorities and foreign tax jurisdictions, if any. A copy of such returns shall
be furnished to the Member.
(c) The Company shall furnish the Member with all Company
information required to be reported in the tax returns of the Member for tax
jurisdictions in which the Company is considered to be doing business, including
a report indicating the Member's share for income tax purposes of the Company's
income, gain, credits, losses and deductions within 180 days after the end of
the Company's fiscal year.
5.5 Bank and Investment Accounts. All funds of the Company shall be
deposited in its name, or in such name as may be designated by the Member, in
such checking, savings or other accounts, or held in its name in the form of
such other investments as shall be designated by the Member. The funds of the
Company shall not be commingled with the funds of any Person. All withdrawals of
such deposits or liquidations of such investments by the Company shall be made
exclusively upon the signature or signatures of a duly authorized officer of the
Member.
5.6 Tax Elections and Accounting Decisions. All determinations as to
tax elections and accounting principles shall be made by the Member.
5.7 Tax Classification. The Member intends that the Company be
disregarded as an entity separate from the Member for tax purposes effective as
of the date of this Agreement. The Member shall not file any election for the
Company to be taxable as an association for Federal tax purposes.
ARTICLE VI
MANAGEMENT BY THE MEMBER
6.1 Management by the Members. Except to the extent (i) provided in
Section 7.5(a) below or (ii) delegated to the Executive Committee by the Member
in writing, the Company shall be managed exclusively by the Member.
6.2 Admission of New Members. One or more additional members of the
Company may be admitted to the Company with the consent of the Member or in
accordance with the transfer provisions contained in Article IX. Prior to the
admission of any such additional member of the Company, the Member shall amend
this Agreement to make such
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changes as the Member shall determine to reflect the fact that the Company shall
have more than one Member.
6.3 Power of Members. The Member shall have the power to exercise
any and all rights or powers granted to the Member pursuant to the express terms
of this Agreement. The Member shall have the power to pledge (pursuant to the
Pledge Agreement or otherwise) or grant a security interest, lien or other
encumbrance in or against, any or all of the Member's interest and such pledge
or grant shall not cause the Member to cease to be a Member or to cease to have
the power to exercise any rights or powers of a Member. Except as otherwise
specifically provided by this Agreement or required by the Act, no Member shall
have the power to act for or on behalf of, or to bind, the Company.
6.4 Events of Bankruptcy. Scotsman shall continue to be a Member
notwithstanding the occurrence of any or all of the "bankruptcy events"
specified in Section 18-304 of the Act.
ARTICLE VII
EXECUTIVE COMMITTEE
7.1 Executive Committee.
(a) For so long as the Indebtedness remains outstanding under
the Credit Agreement, an Executive Committee shall be established and shall
consist of the Member, one Special Executive and such other persons who shall be
designated from time to time by the Member. Notwithstanding anything in the
foregoing to the contrary, the Member shall retain full and complete power,
authority and discretion to take such action as the Member deems necessary or
appropriate concerning any matter with respect to which the Member consults the
Executive Committee, except for those matters specified in Section 7.5(b).
(b) Each Executive Committee member designated by the Member
(including, the Special Executive) shall serve until his successor is duly
designated by the Member or, if earlier, until such officer's death, resignation
or removal by the Member. A vacancy in any office because of death, resignation,
removal or any other cause shall be filled upon the direction of, and as
designated by, the Member.
(c) Any Executive Committee member may resign at any time by
so notifying the Member in writing. Such resignation shall take effect upon
receipt of such notice or at such later time as is therein specified, and unless
otherwise specified, the acceptance of such resignation shall not be necessary
to make it effective. Any Executive Committee member may be removed with or
without cause by the Member. The designation of an individual as an Executive
Committee member shall not of itself create a right to continued employment with
the Company.
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(d) Salaries or other compensation of the Executive Committee
members of the Company shall be fixed from time to time by the Member. Such
compensation, if any, will be paid by the Company out of its own funds.
7.2 Meetings of the Executive Committee. The Executive Committee
shall hold regular meetings at least once during each fiscal year at such time
during normal business hours and place as shall be determined by the Member.
Special meetings of the Executive Committee may be called at any time by the
Member. Except as otherwise determined by the Member, all special and regular
meetings of the Executive Committee shall be held at the principal office of the
Company. No notice shall be required with respect to any regular meeting of the
Executive Committee. Unless waived by all of the Executive Committee members in
writing (before or after a meeting) or with respect to any Executive Committee
member at such meeting, prior notice of any special meeting shall be given to
each Executive Committee member at least three (3) business days before the date
of such meeting. Notice of any meeting need not be given to any Executive
Committee member who shall submit, either before or after such meeting, a signed
waiver of notice. Attendance of an Executive Committee member at a meeting shall
constitute a waiver of notice of such meeting, except when the Executive
Committee member attends the meeting for the express purpose of objecting at the
beginning thereof to the transaction of any business because the meeting is not
properly called or convened. Notice of any adjourned meeting, including the
place, date and time of the new meeting, shall be given by the Member to all
Executive Committee members not present at the time of the adjournment, as well
as to the Executive Committee members present at the time of the adjournment
unless the place, date and time of the new meeting is announced by the Member at
such time.
7.3 Quorum and Voting.
(a) No action may be taken by the Executive Committee unless a
quorum is present, and the affirmative vote of a majority of the Executive
Committee members present shall be required for any act or decision thereof.
Subject to Section 7.5, in the event that the Executive Committee shall be
unable to make a determination to accept or reject a matter presented to it for
decision or approval, such deadlock shall be decided by the Member who shall be
entitled to cast an additional vote in all such situations. No Executive
Committee member shall be disqualified from acting on any matter because such
member is interested in the matter to be acted upon by the Executive Committee.
A quorum for any meeting of the Executive Committee shall be comprised of the
Member and at least two (2) other Executive Committee members or, if the
Executive Committee is comprised of two (2) individuals, a quorum shall be
comprised of the Member and the other Executive Committee member. Each member of
the Executive Committee shall have one vote (other than the Member in the case
of a deadlock, as aforesaid).
(b) Notwithstanding anything in the foregoing to the contrary,
except as otherwise expressly provided for in Section 7.5 below or as delegated
in writing by the Member, the Executive Committee shall not be entitled to vote
on any matter relating to the affairs of the Company, including, without
limitation, any matter set forth in Exhibit D.
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7.4 Procedural Matters of the Executive Committee.
(a) Any action required or permitted to be taken by the
Executive Committee may be taken without a meeting, if all of the Executive
Committee members consent in writing to such action. Such consent shall have the
same effect as a unanimous vote of the Executive Committee.
(b) The Executive Committee shall cause to be kept a book of
minutes of all of its actions by written consent and in which there shall be
recorded with respect to each meeting of the Executive Committee the time and
place of such meeting, whether regular or special (and if special, how called),
the names of those present and the proceedings thereof.
(c) Executive Committee members may participate in a meeting
of the Executive Committee by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
one another, and such participation shall constitute presence in person at such
meeting.
7.5 Actions of the Company.
(a) For so long as the Indebtedness remains outstanding, the
Company and the Member, in its capacity as manager of the Company, shall not
take, approve or otherwise ratify any of the following actions except with the
consent of at least a majority of the members constituting the entire Executive
Committee; provided; that, such majority include the Special Executive:
(i) file a bankruptcy, insolvency or reorganization
petition or otherwise institute insolvency proceedings or otherwise seek
any relief under any laws relating to the relief from debts or the
protection of debtors generally;
(ii) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar
official for it or all or any portion of its properties;
(iii) make any general assignment for the benefit of its
creditors;
(iv) merge or consolidate with or into any Person or
convey or transfer all or substantially all of its properties and assets
to any Person, except as permitted by the Credit Agreement;
(v) engage in any transaction or joint activity of any
kind with an Affiliate or any other Person, except as permitted under the
Credit Agreement;
(vi) amend this Agreement, except as permitted under the
Credit Agreement;
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(vii) take title to any personal or real property other
than in the name of the Company; or
(viii) dissolve or wind up its affairs.
(b) The Company and the Member, in its capacity as manager of the
Company, shall:
(i) not commingle the Company's property with the
property of any Affiliate of the Company, except as permitted under the
Credit Agreement;
(ii) pay from the Company's assets all obligations of
any kind incurred by the Company and not pay from the Company's assets the
obligations of any other Person, except as permitted under the Credit
Agreement;
(iii) conduct business in the Company's name;
(iv) hold the Company out to Persons as an independent
entity separate from its Affiliates;
(v) not enter into or be a party to any transaction with
any Affiliate, except on terms which are no less favorable to the Company
than would be obtained in a comparable arm's length transaction with an
unrelated third party, or except as permitted under the Credit Agreement;
(vi) not make loans to any other Person or hold evidence
of indebtedness issued by any other Person, except as permitted under the
Credit Agreement;
(vii) maintain its bank accounts, books and records and
financial statements on a separate basis from those of any other Person
and maintain a principal executive and administrative office through which
its business is conducted separate from that of any Affiliate; provided,
however, that the Company and any of its Affiliates may have offices in
the same location if there is a fair and appropriate allocation of
overhead costs, if any, among the Company and any such Affiliates;
(viii) correct any known misunderstanding regarding the
Company's existence as an independent entity separate from its Affiliates;
(ix) not identify the Company as a division of any other
Person;
(x) not be the obligor or guarantor of, or otherwise be
responsible for, the payment of any obligations for borrowed money, except
as required or permitted under the Credit Agreement.
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7.6 Power of the Executive Committee. Each Executive Committee member
shall have the power to exercise any and all rights or powers granted to such
member pursuant to the express terms of this Agreement. Except as otherwise
specifically provided by this Agreement or required by the Act, no member of the
Executive Committee shall have the power to act for or on behalf of, or to bind,
the Company.
ARTICLE VIII
LIABILITY; EXCULPATION; INDEMNIFICATION
8.1 Liability of Members and Executive Committee; Reimbursement. The
Member and each Executive Committee member shall not have any liability for the
obligations or liabilities of the Company except to the extent provided in the
Act and other applicable law. The Member and each Executive Committee member
shall not be personally liable for any indebtedness, liability or obligation of
the Company, except that the Member shall remain personally liable for the
payment of any capital contributions required by Article III, and as otherwise
set forth in this Agreement, the Act and any other applicable law. The Member
and each Executive Committee member shall be entitled to reimbursement from the
Company for all reasonable out-of-pocket expenses that are incurred by the
Member and each Executive Committee member in its performance of the services
rendered as Member or Executive Committee member, as the case may be, of the
Company or that otherwise directly relate to the purpose of the Company as
provided in Section 2.8 hereof.
8.2 Duties and Liabilities of Covered Persons.
(a) To the extent that, at law or in equity, the Member, any
Executive Committee member, any Affiliate of the Member or Executive Committee
member or any shareholders, partners, members, employees, representatives or
agents of the Member or Executive Committee member or their respective
Affiliates, any officer or any employee or agent of the Company (each a "Covered
Person") has duties (including fiduciary duties) and liabilities related 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 other Covered Person
for its good faith reliance on the provisions of this Agreement.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Covered Persons or (ii) whenever
this Agreement or any other agreement contemplated herein provides that a
Covered Person shall act in a manner that is, or provides terms that are, fair
and reasonable to the Company or the Member, the Covered Person shall resolve
such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Covered Person, the resolution,
action or term so made, taken or provided by the Covered Person shall not
constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Covered Person at law or in equity or
otherwise.
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(c) Whenever in this Agreement a Covered Person is permitted
or required to make a decision (i) in its "discretion" or under a grant of
similar authority or latitude, the Covered Person shall be entitled to consider
only such interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any interest of or
factors affecting the Company or any other Person, or (ii) in its "good faith"
or under another express standard, the Covered Person shall act under such
express standard and shall not be subject to any other or different standard
imposed by this Agreement or other applicable law.
8.3 Indemnification.
(a) The Company shall indemnify any Covered Person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding brought by or against the Company or
otherwise, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Company to procure a
judgment in its favor, by reason of the fact that such Covered Person is or was
the Member, Executive Committee member, officer, employee or agent of the
Company, or that such Covered Person is or was serving at the request of the
Company as a partner, member, director, officer, trustee, employee or agent of
another Person, against all expenses, including attorneys' fees and
disbursements, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Covered Person in connection with such action, suit
or proceeding. Notwithstanding the foregoing, no indemnification shall be
provided to or on behalf of any Covered Person if a judgment or other final
adjudication adverse to such Covered Person establishes that his or her acts
constituted intentional misconduct or gross negligence.
(b) The indemnification provided by this Section 8.3 shall not
be deemed exclusive of any other rights to indemnification to which those
seeking indemnifi cation may be entitled under any agreement, determination of
the Member or otherwise. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8.3
shall continue as to a Covered Person who has ceased to be a Member, Executive
Committee member, officer, employee or agent (or other person indemnified
hereunder) and shall inure to the benefit of the executors, administrators,
legatees and distributees of such person.
ARTICLE IX
TRANSFERS
9.1 General Restrictions. The Member may not Transfer all or any
portion of its interest (including any beneficial interest therein), unless an
instrument of Transfer (the "Instrument of Transfer") executed by the Transferor
and the Transferee of the interest shall be delivered to the Company; provided
however that the completion by BT Commercial Corporation, as Collateral Agent,
of the stock powers accompanying the Member's interest and duly pledged to BT
Commercial Corporation, as Collateral Agent, pursuant to the Pledge Agreement
shall constitute the execution of an Instrument of Transfer sufficient to
Transfer all of the Member's interest to BT Commercial Corporation, as
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Collateral Agent. Such Transferee shall be admitted as a Member in accordance
with the terms and conditions provided for in the Instrument of Transfer. Any
Person that acquires an interest pursuant to this Article VIII shall not be
liable for the obligations of the transferring Member to make contributions of
property or services to the Company.
9.2 Violative Transfers. The Member may not make a Transfer of an
interest in the Company in violation of Section 9.1, and any such Transfer shall
be null, void and without effect.
ARTICLE X
TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
10.1 Termination of the Company. In the event of (i) the occurrence
of a Dissolution Event (as defined herein) or (ii) subject to Section 7.5, the
written consent to a dissolution by the Member, the Company shall be terminated
on the 90th day after the occurrence of such event; provided, however, in all
cases, the Special Executive shall have the right to continue the Company.
10.2 Events of Dissolution. The Company shall be dissolved upon the
bankruptcy, resignation, dissolution, withdrawal, death, retirement or expulsion
(each a "Dissolution Event") of the Member.
10.3 Liquidation and Winding-Up. If the Company is dissolved
pursuant to Section 10.1, the Company shall be liquidated and wound up in
accordance with the Act and the following provisions:
(a) The assets, properties and business of the Company shall
be liquidated by the Member as promptly as possible, but in an orderly and
businesslike manner so as not to involve undue sacrifice. Notwithstanding the
foregoing, if it is determined by the Member not to sell all or any portion of
the properties and assets of the Company, such properties and assets shall be
distributed in kind in the order of priority set forth in subsection (b);
provided, however, that the fair market value of such properties and assets
shall be used in determining the extent and amount of a distribution in kind of
such properties and assets in lieu of actual cash proceeds of any sale or other
disposition thereof.
(b) The proceeds of sale of all or substantially all of the
properties and assets of the Company and all other properties and assets of the
Company not sold, as provided in subsection (a) above, and valued at the fair
market value thereof as provided in such subsection (a), shall be applied and
distributed as follows, and in the following order or priority:
(i) First, to the payment of all debts and liabilities
of the Company and the expenses of liquidation not otherwise adequately
provided for;
(ii) Second, to the setting up of any reserves that are
reasonably necessary for any contingent unforeseen liabilities or
obligations of the
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Company or of the Member arising out of, or in connection with, the
Company; and
(iii) Third, to the Member.
(c) A Certificate of Cancellation shall be filed with the
Secretary of State of the State of Delaware by the Member.
10.4 Survival of Rights, Duties and Obligations. Termination,
dissolution, liquidation or winding up of the Company for any reason shall not
release any party from any liability which at the time of such termination,
dissolution, liquidation or winding up already had accrued to any other party or
which thereafter may accrue in respect to any act or omission prior to such
termination, dissolution, liquidation or winding up.
ARTICLE XI
GENERAL PROVISIONS
11.1 Notices. Wherever provision is made in this Agreement for the
giving of any notice, such notice shall be in writing and shall be deemed to
have been duly given if mailed by first class United States mail, postage
prepaid, addressed to the party entitled to receive the same or delivered
personally to such party, or telegraphed, telexed, sent by facsimile
transmission or sent by overnight courier, in each case to the addresses or
facsimile telephone numbers therefor set forth below:
If to Willscot Equipment, LLC:
Willscot Equipment, LLC
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxx, Secretary of Xxxxxxxx Scotsman, Inc.
or to such other address, in any such case, as the Member shall have last
designated by notice to the Company. Notice shall be deemed to have been given
on the day that it is so delivered personally, telegraphed, telexed or sent by
facsimile transmission and the appropriate answer back received or, if sent by
overnight courier, shall be deemed to have been given one day after delivery by
the courier company, or if mailed, three days following the date on which such
notice was so mailed.
11.2 Entire Agreement; Non-Waiver. This Agreement constitutes the
entire agreement of the Member. No delay on the part of the Member in exercising
any right hereunder shall operate as a waiver thereof, nor shall any waiver,
express or implied, by the Member of any right hereunder or of any failure to
perform or breach hereof by any other party constitute or be deemed a waiver of
any other right hereunder or of any other failure to perform or breach hereof by
the Member, whether of a similar or dissimilar nature thereof.
11.3 Further Assurances. The Member hereby agrees to execute and
deliver all such other and additional instruments and documents and to do such
other acts and
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things as may be reasonably necessary or appropriate to carry out the intent and
purposes of this Agreement.
11.4 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (other than its
rules of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby).
11.5 Severability. In the event that any provision of this Agreement
shall be declared to be invalid, illegal or unenforceable, such provision shall
survive to the extent it is not so declared, and the validity, legality and
enforceability of the other provisions hereof shall not in any way be affected
or impaired thereby, unless such action would substantially impair the benefits
to either party of the remaining provisions of this Agreement.
11.6 Table of Contents and Headings. The table of contents and
headings in this Agreement are solely for convenience of reference and shall not
affect the interpre tation or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the party hereto has caused this Agreement to be
executed, by its duly authorized officer, on the date first above written.
MEMBER
XXXXXXXX SCOTSMAN, INC.
By: /s/ Xxxx X. Xxxx
-----------------
Name: Xxxx X. Xxxx
Title: Secretary
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EXHIBIT A
CERTIFICATE OF FORMATION
18
EXHIBIT B
FORM OF CERTIFICATE
CERTIFICATE
FOR
COMMON MEMBERSHIP INTERESTS
IN
WILLSCOT EQUIPMENT, LLC
No. 001
WILLSCOT EQUIPMENT, LLC (the "Company"), a Delaware limited
liability company, hereby certifies that Xxxxxxxx Scotsman, Inc. is the
registered owner of a 100% interest in the Company (the "Membership Interest").
The rights, preferences, and limitations of the Membership Interest are set
forth in the Limited Liability Agreement of the Company, as the same may be
amended from time to time (the "Operating Agreement"), copies of which are on
file at the Company's principal office at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000. The Membership Interest represented hereby is subject to
restrictions on transfer as provided in the Operating Agreement.
This Certificate and the Membership Interest evidenced hereby are
transferable, subject to the terms of the Operating Agreement, only on the books
of the Company by the holder hereof in person or by duly authorized attorney
upon surrender of this certificate properly endorsed.
WITNESS, the signature of the duly authorized Member of the Company.
Dated: Xxxxxxxx Scotsman, Inc.
By:
----------------------------
Name:
Title:
BY ACCEPTANCE OF THIS CERTIFICATE, AND AS A CONDITION TO ENTITLEMENT TO ANY
RIGHTS IN OR BENEFITS WITH RESPECT TO THE MEMBERSHIP INTEREST EVIDENCED HEREBY,
A HOLDER HEREOF (INCLUDING ANY TRANSFEREE HEREOF) IS DEEMED TO HAVE AGREED TO
COMPLY WITH AND BE BOUND BY ALL TERMS AND CONDITIONS OF THE OPERATING AGREEMENT.
THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND SUCH MEMBERSHIP
INTEREST MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE TERMS OF THE OPERATING AGREEMENT AND THEN ONLY (1) PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY, OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OR BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES.
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EXHIBIT C
ASSETS CONTRIBUTED TO THE COMPANY BY XXXXXXXX SCOTSMAN, INC.
32,423 mobile offices and storage units are being contributed to the
Company.
