EXHIBIT 10.34
EXECUTION COPY
LIMITED LIABILITY COMPANY AGREEMENT
OF
PCAA MISSOURI, LLC
A DELAWARE LIMITED LIABILITY COMPANY
October 29, 2004
TABLE OF CONTENTS
Page
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ARTICLE I GENERAL DEFINITIONS ...................................................... 1
1.1 Definitions ................................................................ 1
1.2 Interpretation ............................................................. 2
ARTICLE II ORGANIZATION ............................................................ 3
2.1 Formation .................................................................. 3
2.2 Name ....................................................................... 3
2.3 Principal Place of Business ................................................ 3
2.4 Registered Office and Registered Agent ..................................... 3
2.5 Term ....................................................................... 3
ARTICLE III MEMBER ................................................................. 3
3.1 Member ..................................................................... 3
3.2 Assignments ................................................................ 3
3.3 Resignation ................................................................ 4
3.4 Admission of Additional Members ............................................ 4
ARTICLE IV Purpose ................................................................. 4
ARTICLE V CAPITAL Account and CAPITAL CONTRIBUTIONS ................................ 4
5.1 Capital Account and Capital Contributions .................................. 4
5.2 Additional Capital Contributions ........................................... 4
5.3 Membership Interest ........................................................ 4
5.4 Interest ................................................................... 4
ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS ........................................... 5
6.1 Allocations of Income, Gain, Loss, Deduction and Credit From Operations .... 5
6.2 Distributions .............................................................. 5
ARTICLE VII RIGHTS, POWERS AND OBLIGATIONS OF THE MEMBERS .......................... 5
7.1 Authority; Liability to Third Parties; Dealings With Third Parties ......... 5
ARTICLE VIII MANAGEMENT OF THE COMPANY ............................................. 5
8.1 Management of Business ..................................................... 5
8.2 Duties of the Member ....................................................... 5
8.3 Limitations on Powers ...................................................... 6
8.4 Standard of Care; Liability ................................................ 6
8.5 Other Businesses ........................................................... 6
8.6 Proprietary Information and Inventions Agreement ........................... 6
ARTICLE IX OWNERSHIP OF COMPANY PROPERTY ........................................... 6
ARTICLE X FISCAL MATTERS; BOOKS AND RECORDS ........................................ 6
10.1 Bank Accounts; Investments ................................................. 6
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10.2 Books and Records of Account ............................................. 7
ARTICLE XI INDEMNIFICATION AND INSURANCE ........................................... 7
ARTICLE XII DISSOLUTION AND WINDING UP ............................................. 7
12.1 Events Causing Dissolution ............................................... 7
12.2 Winding Up of the Company ................................................ 7
ARTICLE XIII MISCELLANEOUS PROVISIONS .............................................. 8
13.1 Counterparts ............................................................. 8
13.2 Entire Agreement ......................................................... 8
13.3 Partial Invalidity ....................................................... 8
13.4 Amendment ................................................................ 8
13.5 Binding Effect ........................................................... 8
13.6 Governing Law ............................................................ 8
13.7 Effect of Waiver or Consent .............................................. 8
13.8 Further Assurances ....................................................... 8
13.9 Survival of Rights ....................................................... 9
13.10 Paragraph Headings ....................................................... 9
13.11 Interpretation ........................................................... 9
13.12 Validity ................................................................. 9
13.13 Authority ................................................................ 9
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LIMITED LIABILITY COMPANY AGREEMENT
OF
PCAA MISSOURI, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THE LIMITED LIABILITY COMPANY INTERESTS DESCRIBED IN THIS AGREEMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS ("STATE ACTS") AND ARE RESTRICTED SECURITIES AS THAT TERM IS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933. THE SECURITIES MAY NOT BE
OFFERED FOR SALE OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR QUALIFICATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE ACTS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION OR QUALIFICATION UNDER THE ACT AND
APPLICABLE STATE ACTS. THE AVAILABILITY OF WHICH IS ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
THIS LIMITED LIABILITY COMPANY AGREEMENT is entered into and effective
this 29th day of October, 2004 (the "Agreement"), between the Company and PCAA
Parent, LLC (the "Member"). In consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Member, each person
who shall hereinafter execute this Agreement as a Member of the Company and the
Company hereby agree as follows:
ARTICLE I
GENERAL DEFINITIONS
1.1 DEFINITIONS. All capitalized terms used in this Agreement and not
otherwise defined herein shall each have the meaning set forth in this Article I
(unless the context otherwise requires).
"ACT" shall mean the Delaware Limited Liability Company Act (6 Del.
C. Section 18-101 et seq.), as it may be amended from time to time, and any
successor to such Act.
"AFFILIATE" shall mean when used with reference to any Person, any other
Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such specific Person.
"AGREEMENT" shall mean this Limited Liability Company Agreement, as
originally executed and as subsequently amended from time to time in accordance
with the provisions hereof.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section 5.1(a).
"CAPITAL CONTRIBUTION" shall mean the amount of any cash and the fair
market value of any property contributed to the Company by the Member.
"CERTIFICATE OF FORMATION" shall mean the Certificate of Formation of the
Company described in Section 2.1, as amended from time to time.
"CODE" shall mean the Internal Revenue Code of 1986, as now in effect or
as hereafter amended.
"COMPANY" shall mean PCAA Missouri, LLC, a Delaware limited liability
company.
"COMPANY PROPERTY OR PROPERTIES" shall mean all assets (real or personal,
tangible or intangible, including cash) of the Company, owned or held by the
Company, whether owned or held by the Company at the date of its formation or
thereafter acquired.
"MEMBER" shall mean PCAA Parent, LLC, a Delaware limited liability
company, as the initial member of the Company, and includes any Person admitted
as an additional member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement, each in its capacity as a member
of the Company.
"MEMBERSHIP INTEREST" shall mean, with respect to the Member, at any time
the entire interest of such Member in the Company at such time. Such interest
includes, without limitation, (a) all rights of the Member to receive
distributions of revenues, allocations of income and loss and distributions of
liquidation proceeds under this Agreement and (b) all management rights, voting
rights or rights to consent.
"PERSON" shall mean any general partnership, limited partnership,
corporation, limited liability company, joint venture, trust, business trust,
governmental agency, cooperative, association, individual or other entity, and
the heirs, executors, administrators, legal representatives, successors and
assigns of such person, as the context may require.
"TREASURY REGULATIONS" shall mean the regulations promulgated by the U.S.
Treasury Department pursuant to the Code.
1.2 INTERPRETATION. Each definition in this Agreement includes the
singular and the plural, and reference to the neuter gender includes the
masculine and feminine where appropriate. References to any statute or Treasury
Regulations means such statute or regulations as amended at the time and include
any successor legislation or regulations. The headings to the Articles and
Sections are for convenience of reference and shall not affect the meaning or
interpretation of this Agreement. Except as otherwise stated, reference to
Articles, Sections and Schedules mean the Articles, Sections and Schedules of
this Agreement. The Exhibits are hereby incorporated by reference into and
shall be deemed a part of this Agreement.
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ARTICLE II
ORGANIZATION
2.1 FORMATION. On September 27, 2004, Xxxxxxxx Xxxxxxx organized a limited
liability company pursuant to the Act by executing and delivering a Certificate
of Formation to the Delaware Secretary of State in accordance with and pursuant
to the Act. The Company and the Member hereby forever discharge the organizer
from any liability or obligation to the Member, and the organizer shall be
indemnified by the Company and the Member from and against any expense or
liability actually incurred by the organizer, by reason of having been the
organizer of the Company.
2.2 NAME. The name of the Company is PCAA Missouri, LLC. To the extent
permitted by the Act, the Company may conduct its business under one or more
assumed names deemed advisable by the Member.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000. The Company
may locate its place or places of business at any other place or places as the
Member may from time to time deem advisable.
2.4 REGISTERED OFFICE AND REGISTERED AGENT. The registered agent of the
Company in the State of Delaware shall be the initial registered agent named in
the Certificate of Formation or such other Person or Persons as the Member may
designate in the manner provided by the Act. The registered office of the
Company in the State of Delaware shall be the initial registered office named in
the Certificate of Formation or such other place as the Member may designate in
the manner provided by the Act.
2.5 TERM. The Company shall continue in existence until the Company is
dissolved and its affairs wound up in accordance with the Act or this Agreement.
ARTICLE III
MEMBER
3.1 MEMBER. The name and address of the Member is set forth on EXHIBIT A.
As of the date hereof, there are no other Members of the Company and no other
Person has any right to take part in the ownership of the Company.
3.2 ASSIGNMENTS. The Member may assign in whole or in part its limited
liability company interest in the Company. If the Member transfers all of its
limited liability company interest in the Company pursuant to this Section, the
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer and, immediately following such admission, the transferor
Member shall cease to be a member of the Company.
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3.3 RESIGNATION. If the Member resigns pursuant to this Section, an
additional member of the Company shall be admitted to the Company, upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the resignation and, immediately following such admission, the
resigning Member shall cease to be a member of the Company.
3.4 ADMISSION OF ADDITIONAL MEMBERS. One or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
ARTICLE IV
PURPOSE
The purpose of the Company shall be to engage in any activity and to
exercise any powers permitted to a limited liability company under the laws of
the State of Delaware that are incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing.
ARTICLE V
CAPITAL ACCOUNT AND CAPITAL CONTRIBUTIONS
5.1 CAPITAL ACCOUNT AND CAPITAL CONTRIBUTIONS.
(a) The Member shall have a beginning Capital Account as set forth
on EXHIBIT A attached hereto.
(b) The Member's Capital Account shall be increased by: (i) the
amount of any cash and the fair market value of any property (net of any
liabilities secured by the property that the Company assumes or takes subject
to) that the Member contributes; and (ii) by any income or gain of the company.
The Member's Capital Account shall be decreased by: (i) the amount of any cash
and the fair market value of any property (net of any liabilities secured by the
property that the Member assumes or takes subject to) distributed to the Member;
and (ii) by any losses and deductions of the Company.
(c) If the Member's Membership Interest, or any portion thereof, is
transferred in accordance with this agreement, the transferee shall succeed to
the Capital Account of the Member or to any portion that is transferred.
5.2 ADDITIONAL CAPITAL CONTRIBUTIONS. The Member shall not be required to
make any additional capital contributions to the Company.
5.3 MEMBERSHIP INTEREST. The Member shall be entitled to the Membership
Interest set forth opposite the Member's name on EXHIBIT A.
5.4 INTEREST. No interest shall be paid by the Company on the Member's
Capital Account.
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ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 ALLOCATIONS OF INCOME, GAIN, LOSS, DEDUCTION AND CREDIT FROM
OPERATIONS. Because the Company is a business entity that has a single owner and
is not a corporation, it is disregarded as an entity separate from its owner for
federal income tax purposes under Section 301.7701-2(c)(2)(i) of the Treasury
Regulations and comparable provisions of state and local law. Accordingly, all
items of income, gain, loss, deduction and credit of the Company for all taxable
periods will be treated for federal income tax purposes, and for state and local
income and other tax purposes to the extent permitted by applicable law, as
realized or incurred directly by the Member.
6.2 DISTRIBUTIONS. The Company shall make distributions of cash or
property to the Member at such times and in such amounts as determined by the
Member in its sole discretion.
ARTICLE VII
RIGHTS, POWERS AND OBLIGATIONS OF THE MEMBERS
7.1 AUTHORITY; LIABILITY TO THIRD PARTIES; DEALINGS WITH THIRD PARTIES.
Subject to Article VIII, the Member has the authority or power to act for or on
behalf of the Company to do any act that would be binding on the Company, and to
incur any expenditures on behalf of the Company. Except as otherwise provided in
the Act, the debts, obligations and liabilities of the Company shall be solely
the debts, obligations and liabilities of the Company, and the Member shall not
be personally liable for the debts, obligations or liabilities of the Company,
including under a judgment decree or order of a court. Any Person dealing with
the Company or the Member may rely upon a certificate signed by the Member as to
the identity of the Member or the Persons who are authorized to execute and
deliver any instrument or document of the Company.
ARTICLE VIII
MANAGEMENT OF THE COMPANY
8.1 MANAGEMENT OF BUSINESS. Except as otherwise expressly provided in this
Agreement, the powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed by,
the Member. The Member's powers shall extend to any transaction or business
operation participated in by the Company or affecting any Company Property.
8.2 DUTIES OF THE MEMBER. The Member shall perform all of the duties and
obligations required by this Agreement or necessary to carry on the business of
the Company. The Member shall have the duty to do, or cause to be done, each of
the following:
(a) File, record and/or publish all certificates, notices,
statements or other instruments required by law for the formation and operation
of the Company in all appropriate jurisdictions in which the Company owns or
acquires property or conducts business;
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(b) Maintain or cause to be maintained, at the expense of the
Company, books and records of the Company and prepare annual financial
statements; and
(c) Conduct or cause to be conducted the operations of the Company
in conformity with such requirements as may be imposed by law or applicable
governmental agencies, including, but not limited to, preparing and filing all
governmental reports.
8.3 LIMITATIONS ON POWERS. The enumeration of powers in this Agreement
shall not limit the general or implied powers of the Member or any additional
powers provided by law.
8.4 STANDARD OF CARE; LIABILITY. The Member shall in no event be liable to
the Company for any act or omission performed or omitted in good faith and
consistent with its fiduciary duties in pursuance of the authority granted
herein or under the Act, except that the Member shall be liable for fraud, gross
negligence and bad faith misconduct. In no event shall the Member be liable to
the Company for any of its acts or omissions taken (or omitted) in reliance on
the advice of counsel, public accountants, or other professionals to the
Company.
8.5 OTHER BUSINESSES. The Member may engage in or possess an interest in
one (1) or more other business ventures (unrelated to the Company) of any kind
and description, independently or with others. The Company shall not have any
rights in or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.
8.6 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Member shall
cause each officer and employee of, and each consultant to, the Company or any
Company subsidiary with access to material confidential or proprietary
information of the Company to enter into a proprietary information and
inventions agreement. The Company may not disclose any material proprietary or
confidential information to any current or future employee, officer or
consultant of the Company unless and until such person executes the proprietary
information and inventions agreement.
ARTICLE IX
OWNERSHIP OF COMPANY PROPERTY
Company Property shall be deemed to be owned by the Company as an entity,
and the Member shall not have any ownership interest in such Company Property or
any portion thereof. Title to any or all Company Property may be held in the
name of the Company. All Company Property shall be recorded as the property of
the Company on its books and records, irrespective of the name in which legal
title to such Company Property is held.
ARTICLE X
FISCAL MATTERS; BOOKS AND RECORDS
10.1 BANK ACCOUNTS; INVESTMENTS. Capital Contributions, revenues and any
other Company funds shall be deposited by the Company in a bank account
established in the name of the Company. Any amount of funds that are held in
reserve, will be held in an account that bears interest. No other funds shall be
deposited into Company bank accounts or commingled with
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Company investments. Funds deposited in the Company's bank accounts may be
withdrawn only to be invested in furtherance of the Company's purposes, to pay
Company debts or obligations or to be distributed to the Member pursuant to this
Agreement.
10.2 BOOKS AND RECORDS OF ACCOUNT. The Company shall maintain adequate
books and records of account that shall be maintained on a basis consistent with
appropriate provisions of the Code.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
The Company shall indemnify and hold harmless the Member and each officer,
director, shareholder, employee, consultant or agent of the Member, and each of
their Affiliates (hereinafter "indemnitees") from and against any debts,
liabilities or obligations of the Company, and any, loss, expense, damage or
injury suffered or sustained by any indemnitees by reasons of any acts,
omissions or alleged acts or omissions (even if such acts or omissions
constituted the simple negligence of the indemnitees) arising out of their
activities on behalf of the Company or in furtherance of the interests of the
Company, including but not limited to, any judgment, award, settlement, actual
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim if the acts,
omissions or alleged acts or omissions upon which such actual or threatened
action, proceeding or claim is based were for a purpose reasonably believed by
such indemnitee to be in or not opposed to the best interests of the Company and
were not performed or omitted fraudulently or in bad faith or in violation of a
fiduciary duty owed to the Company or as a result of gross negligence by such
indemnitee. A judgment, order or settlement shall not create a presumption that
any indemnitee acted fraudulently, in bad faith, or in violation of a fiduciary
duty owed to the Company absent a specific finding thereon.
ARTICLE XII
DISSOLUTION AND WINDING UP
12.1 EVENTS CAUSING DISSOLUTION. The Company shall be dissolved upon the
first of the following events to occur:
(a) The written consent of the Member at any time to dissolve and
wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of
a limited liability company under the Act, including the entry of a decree of
judicial dissolution under Section 18-802 of the Act.
12.2 WINDING UP OF THE COMPANY. In the event of dissolution, the Company
shall conduct only such activities as are necessary to wind up its affairs
(including the sale of the assets of the Company in an orderly manner), and the
assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which will be deemed an original but all of which will constitute one
and the same.
13.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
with respect to the subject matter hereof. This Agreement supersedes any and all
other agreements, either oral or written, of the Members with respect to the
subject matter hereof.
13.3 PARTIAL INVALIDITY. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder of
such invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
13.4 AMENDMENT. This Agreement may not be amended at any time and in any
respect unless such amendment is in writing and consistent with the Act.
13.5 BINDING EFFECT. Subject to the provisions of this Agreement relating
to transferability, this Agreement will be binding upon and shall inure to the
benefit of the Members and their distributees, heirs, successors and assigns.
13.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the local, internal laws of the State of Delaware. In
particular, this Agreement is intended to comply with the requirements of the
Act and the Certificate of Formation. In the event of a direct conflict between
the provisions of this Agreement and the mandatory provisions of the Act or any
provision of the Certificate of Formation, the Act and the Certificate of
Formation, in that order of priority, will control. The Member hereby consents
to (i) the non-exclusive jurisdiction of any court of the State of Delaware or
Federal court of the United States sitting in Wilmington, Delaware, and (ii)
service of process by certified mail. The foregoing shall not be construed to
limit the bringing of any action in any other jurisdiction or the serving of
process by any other legal means.
13.7 EFFECT OF WAIVER OR CONSENT. A waiver or consent, express or implied,
to or of any breach or default by any Person in the performance by that Person
of its obligations with respect to the Company is not a consent or waiver to or
of any other breach or default in the performance by that Person of the same or
any other obligations of that Person with respect to the Company. Failure on the
part of a Person to complain of any act of any Person or to declare any Person
in default with respect to the Company, irrespective of how long that failure
continues, does not constitute a waiver by that Person of its rights with
respect to that default until the applicable statute-of-limitations period has
run.
13.8 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, the Members shall execute and deliver any
additional documents and
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instruments and perform any additional acts that may be necessary or appropriate
to effectuate and perform the provisions of this Agreement and such
transactions.
13.9 SURVIVAL OF RIGHTS. Except as herein otherwise provided to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties signatory hereto, their personal representatives, and assigns.
13.10 PARAGRAPH HEADINGS. The article and section headings in no way
define, limit, or extend or interpret the scope of this Agreement or of any
particular article or section.
13.11 INTERPRETATION. When the context in which words are used in this
Agreement indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter gender and vice versa.
13.12 VALIDITY. In the event that any provisions of this Agreement shall
be held to be invalid, the same shall not affect, in any respect whatsoever, the
validity of the remainder of, this Agreement.
13.13 AUTHORITY. The Member represents and warrants that it possesses all
necessary capacity and authority to sign and enter this Agreement. All
individuals signing this Agreement for a Member that is a corporation, a
company, or other legal entity, or signing under a power of attorney or as a
trustee, guardian, conservator, or in any other legal capacity, represent and
warrant that they have the necessary capacity and authority to act for, sign,
and bind the respective entity or principal on whose behalf they are signing.
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IN WITNESS WHEREOF, the Member has executed this Agreement effective as of
the date first above written.
THE COMPANY:
PCAA Missouri, LLC
By: PCAA Parent, LLC,
a Delaware limited liability company
Its: Sole Member
By: Parking Company of America Airports Holdings, LLC,
a Delaware limited liability company
Its: Managing Member
By: Macquarie Americas Parking Corporation,
a Delaware corporation
Its: Managing Member
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx, President
MEMBER:
PCAA Parent, LLC
By: Parking Company of America Airports Holdings, LLC
a Delaware limited liability company
Its: Managing Member
By: Macquarie Americas Parking Corporation,
a Delaware limited liability company
Its: Managing Member
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx, President
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EXHIBIT A
CAPITAL CONTRIBUTION AND MEMBERSHIP INTEREST
CAPITAL MEMBERSHIP
MEMBER CONTRIBUTION INTEREST
---------------- ------------ ----------
PCAA Parent, LLC $1,000 100%
