Exhibit (b)(1)
MILPI HOLDINGS, LLC
OPERATING AGREEMENT
This Operating Agreement of MILPI Holdings, LLC (the "Company") is made
as of December 13, 2000, by and among the persons identified as members on
SCHEDULE A attached hereto (such persons and their respective successors in
office or in interest being hereinafter referred to individually as a "Member"
or collectively as the "Members").
WHEREAS, the Company was formed as a limited liability company under
the Delaware Limited Liability Company Act (as amended from time to time, the
"Act") pursuant to the Certificate of Formation of the Company dated December
12, 2000 (the "Certificate of Formation"); and
WHEREAS, the Members wish to set out fully their respective rights,
obligations and duties regarding the Company and its assets and liabilities.
NOW, THEREFORE, in consideration of the mutual covenants expressed
herein, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I.
ORGANIZATION AND POWERS
1.1 ORGANIZATION. The Company has been formed by the filing of its Certificate
of Formation (as amended from time to time, the "Certificate" or the
"Certificate of Formation") with the Delaware Secretary of State pursuant to the
Act. Additions to or amendments of the Certificate of Formation shall be
authorized by a majority in interest of the Members as provided in Section 10.4.
1.2 PURPOSES AND POWERS. The Company shall have authority to engage in any
lawful business, trade, purpose or activity permitted by the Act, and it shall
possess and may exercise all of the powers and privileges granted by the Act and
any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business,
purposes or activities of the Company, including without limitation the
following powers:
(a) to conduct its business and operations in any state, territory or
possession of the United States or in any foreign country or
jurisdiction;
(b) to purchase, receive, take, lease or otherwise acquire, own, hold,
improve, maintain, use or otherwise deal in and with, sell, convey,
lease, exchange, transfer or otherwise dispose of, mortgage, pledge,
encumber or create a security interest in all or any of its real or
personal property (including securities), or any interest therein,
wherever situated;
(c) to borrow or lend money or obtain or extend credit and other financial
accommodations, to invest and reinvest its funds in any type of
security or obligation of or interest in any public, private or
governmental entity, and to give and receive interests
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in real and personal property as security for the payment of funds so
borrowed, loaned or invested;
(d) to make contracts, including contracts of insurance, incur liabilities
and give guaranties, whether or not such guaranties are in furtherance
of the business and purposes of the Company, including without
limitation guaranties of obligations of other persons who are
interested in the Company or in whom the Company has an interest;
(e) to employ officers, employees, agents and other persons, to fix the
compensation and define the duties and obligations of such personnel,
to establish and carry out retirement, incentive and benefit plans for
such personnel and to indemnify such personnel to the extent permitted
by this Agreement and the Act;
(f) to make donations irrespective of benefit to the Company for the public
welfare or for community, charitable, religious, educational,
scientific, civic or similar purposes;
(g) to institute, prosecute and defend any legal action or arbitration
proceeding involving the Company, and to pay, adjust, compromise,
settle or refer to arbitration any claim by or against the Company or
any of its assets; and
(h) to be a security holder in one or more corporations, partner in one or
more partnerships or a member or manager in one or more limited
liability companies.
1.3 PRINCIPAL PLACE OF BUSINESS. The principal office and place of business of
the Company shall initially be 88 Broad Street, Sixth Floor, Boston,
Massachusetts 02110. A majority in interest of the Members may change the
principal office or place of business of the Company at any time and may cause
the Company to establish other offices or places of business.
1.4 FISCAL YEAR. The fiscal year of the Company shall end on December 31 in each
year.
1.5 QUALIFICATION IN OTHER JURISDICTIONS. The Members shall cause the Company to
be qualified or registered under applicable laws of any jurisdiction in which
the Company transacts business and shall be authorized to execute, deliver and
file any certificates and documents necessary to effect such qualification or
registration, including without limitation the appointment of agents for service
of process in such jurisdictions.
ARTICLE II.
MEMBERS
2.1 MEMBERS. The names and addresses of the Members, their capital commitments
to the Company and their membership interests in certain allocations and
distributions to be made hereunder ("Membership Interests") are set forth on
SCHEDULE A hereto. SCHEDULE A hereto shall be amended from time to time to
reflect any changes in the identity, capital commitments or Membership Interests
of the Members.
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2.2 LIABILITY OF MEMBERS. The liability of each Member to the Company shall be
limited to the amounts of any unpaid Capital Contributions (as defined in
Paragraph 6.2) which he or she agreed to make to the Company, except to the
extent otherwise provided in the Act.
2.3 MEETINGS OF MEMBERS.
(a) Meetings of Members may be called for any proper purpose at any time
by a majority of the Membership Interests. The Members calling the
meeting shall determine the date, time and place of each meeting of
Members, and written notice thereof shall be given to each Member not
less than seven days nor more than 60 days prior to the date of the
meeting. Notice shall be sent to Members of record on the date when
the meeting is called. The business of each meeting of Members shall
be limited to the purposes described in the notice. A written waiver
of notice, executed before or after a meeting by a Member or its
authorized attorney shall be deemed equivalent to notice of the
meeting.
(b) Persons holding a majority in interest in the Membership Interests
shall constitute a quorum for the transaction of any business at a
meeting of Members. Members may attend a meeting in person or by proxy.
Members may also participate in a meeting by means of conference
telephone or similar communications equipment that permits all Members
present to hear each other. If less than a quorum of the Members is
present, the meeting may be adjourned by the chairman to a later date,
time and place, and the meeting may be held as adjourned without
further notice. When an adjourned meeting is reconvened, any business
may be transacted that might have been transacted at the original
meeting.
2.4 ACTION WITHOUT A MEETING. There is no requirement that the Members hold a
meeting in order to take action on any matter. Any action required or permitted
to be taken by the Members may be taken without a meeting if one or more written
consents to such action shall be signed by Members who hold the Membership
Interests or other interest in the Company required to approve the action being
taken. Such written consents shall be delivered to the principal office of the
Company and unless otherwise specified shall be effective on the date when the
first consent is so delivered. Prompt notice shall be given to all Members who
did not consent to any action taken by written consent of Members without a
meeting.
2.5 VOTING RIGHTS. Unless otherwise required by the Act or this Agreement, all
actions, approvals and consents to be taken or given by the Members under the
Act, this Agreement or otherwise shall require the affirmative vote or written
consent of Members holding a majority of the Membership Interests.
2.6 LIMITATION OF LIABILITY OF MEMBERS. Except as otherwise provided in the Act,
no Member of the Company shall be obligated personally for any debt, obligation
or liability of the Company or of any other Member, whether arising in contract,
tort or otherwise, solely by reason of being a Member of the Company. Except as
otherwise provided in the Act, by law or expressly in this Agreement, no Member
shall have any fiduciary or other duty to another Member with respect to the
business and affairs of the Company, and no Member shall be liable to the
Company or any other Member for acting in good faith reliance upon the
provisions of this Agreement. No Member shall have any responsibility to restore
any negative balance in its Capital Account (as
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defined in Section 6.1) or to contribute to or in respect of the liabilities or
obligations of the Company or return distributions made by the Company except as
required by the Act or other applicable law; PROVIDED, HOWEVER, that Members are
responsible for their failure to make required Capital Contributions under
Section 6.2. The failure of the Company to observe any formalities or
requirements relating to the exercise of its powers or the management of its
business or affairs under this Agreement or the Act shall not be grounds for
making its Members responsible for the liabilities of the Company.
2.7 NO RIGHT TO WITHDRAW. No Member shall have any right to resign or withdraw
from the Company without the consent of the other Members or to receive any
distribution or the repayment of its Capital Contributions except as provided in
Section 7.2 and Article IX upon dissolution and liquidation of the Company. No
Member shall have any right to have the fair value of its Membership Interest in
the Company appraised and paid out upon the resignation or withdrawal of such
Member or any other circumstances.
ARTICLE III.
MANAGEMENT
3.1 GENERAL. Except as otherwise specifically provided in this Agreement, the
business, property and affairs of the Company shall be managed directly by the
Members. The Members shall have the full and complete right, power and authority
to do on behalf of the Company all things which, in the judgment of a majority
in interest of the Members, are necessary or desirable to carry out the purposes
of the Company as set forth in this Agreement or as required by law. Approval by
or action taken by a majority in interest of the Members in accordance with this
Agreement shall constitute approval or action by the Company and shall be
binding on all of the Members.
3.2 TAX MATTERS MEMBER. The Member so designated by a majority the Membership
Interests from time to time shall serve as the "Tax Matters Member" of the
Company for purposes of Section 6231(a)(7) of the Internal Revenue Code of 1986,
as amended (the "Code"), with power to manage and represent the Company in any
administrative proceeding of the Internal Revenue Service. The initial Tax
Matters Partner of the Company shall be AFG Investment Trust A.
3.3 COMPENSATION. The Members shall not be entitled to receive a management fee.
All reasonable expenses incurred with respect to the organization, operation and
winding down and liquidation of the Company, including without limitation legal,
accounting and licensing expenses, shall be borne by the Company. The Members
shall be entitled to reimbursement from the Company for such expenses paid by
them.
ARTICLE IV.
INDEMNIFICATION
4.1 DEFINITIONS. For purposes of this Article IV:
(a) "expenses" means all expenses, including attorneys' fees and
disbursements, actually and reasonably incurred in defense of a
proceeding or in seeking indemnification under this Article, and
except for proceedings by or in the right of the Company
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or alleging that a Manager received an improper personal benefit,
any judgments, awards, fines, penalties and reasonable amounts paid
in settlement of a proceeding; and
(b) "proceeding" means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
and any claim which could be the subject of a proceeding.
4.2 RIGHT TO INDEMNIFICATION. No Member shall be liable to any Member or to the
Company for honest mistakes of judgment or negligence or for losses due to such
mistakes or negligence or for the negligence, whether of omission or commission,
dishonesty or bad faith of any employee or other agent of the Company selected
with reasonable care. A Member shall be fully protected and justified with
respect to any action or omission taken or suffered by it in good faith in
reliance upon and in accordance with the opinion or advice as to matters of law
of legal counsel, or as to the matters of accounting of accountants, in each
case selected by a majority in interest of the Members with reasonable care.
4.3 AWARD OF INDEMNIFICATION. The determination of whether the Company is
authorized to indemnify a Member hereunder and any award of indemnification
shall be made in each instance by (a) a majority of the Members who are not
parties to the proceeding in question, (b) independent legal counsel appointed
by the Members, or (c) the holders of a majority of the Membership Interests of
the Members who are not parties to the proceeding in question. The Company shall
be obliged to pay indemnification applied for by a Member unless there is an
adverse determination (as provided above) within 45 days after the application.
If indemnification is denied, the applicant may seek an independent
determination of its right to indemnification by a court, and in such event, the
Company shall have the burden of proving that the applicant was ineligible for
indemnification under this Article. Notwithstanding the foregoing, in the case
of a proceeding by or in the right of the Company in which a Member is adjudged
liable to the Company, indemnification hereunder shall be provided to such
Member only upon a determination by a court having jurisdiction that in view of
all the circumstances of the case, such Member is fairly and reasonably entitled
to indemnification for such expenses as the court shall deem proper.
4.4 SUCCESSFUL DEFENSE. Notwithstanding any contrary provisions of this Article
IV, if a Member has been wholly successful on the merits in the defense of any
proceeding in which it was involved by reason of its position as Member or as a
result of serving in such capacity (including termination of investigative or
other proceedings without a finding of fault on the part of the Member), the
Member shall be indemnified by the Company against all expenses incurred by the
Member in connection therewith.
4.5 ADVANCE PAYMENTS. Except as limited by law, expenses incurred by a Member in
defending any proceeding, including a proceeding by or in the right of the
Company, shall be paid by the Company to the Member in advance of final
disposition of the proceeding upon receipt of its written undertaking to repay
such amount if the Member is determined pursuant to this Article or adjudicated
to be ineligible for indemnification, which undertaking shall be an unlimited
general obligation but need not be secured and may be accepted without regard to
the financial ability of the Member to make repayment; PROVIDED, HOWEVER, that
no such advance payment of expenses
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shall be made if it is determined pursuant to Section 4.3 on the basis of the
circumstances known at the time (without further investigation) that the Member
is ineligible for indemnification.
4.6 INSURANCE. The Company shall have power to purchase and maintain insurance
on behalf of any Member, officer, agent or employee against any liability or
cost incurred by such person in any such capacity or arising out of its status
as such, whether or not the Company would have power to indemnify against such
liability or cost.
4.7 NON-EXCLUSIVITY. The provisions of this Article IV shall not be construed to
limit the power of the Company to indemnify its Members, officers, employees or
agents to the full extent permitted by law or to enter into specific agreements,
commitments or arrangements for indemnification permitted by law. The absence of
any express provision for indemnification herein shall not limit any right of
indemnification existing independently of this Article IV.
4.8 AMENDMENT. The provisions of this Article IV may be amended or repealed in
accordance with Section 10.5; PROVIDED, HOWEVER, that no amendment or repeal of
such provisions that adversely affects the rights of a Member under this Article
IV with respect to its acts or omissions at any time prior to such amendment or
repeal shall apply to such Member without its consent.
ARTICLE V.
CONFLICTS OF INTEREST
5.1 TRANSACTIONS WITH INTERESTED PERSONS. Unless entered into in bad faith, no
contract or transaction between the Company and one or more of its Members, or
between the Company and any other corporation, partnership, association or other
organization in which one or more of its Members have a financial interest or
are directors, partners, managers or officers, shall be voidable solely for this
reason or solely because such Member was present or participated in the
authorization of such contract or transaction if:
(a) the material facts as to the relationship or interest of such
Member and as to the contract or transaction were disclosed or known
to the other Members and the contract or transaction was authorized
by the disinterested Members; or
(b) the contract or transaction was fair to the Company as of the time it
was authorized, approved or ratified by the disinterested Members;
and no Member interested in such contract or transaction, because of such
interest, shall be considered to be in breach of this Agreement or liable to the
Company or Member, or any other person or organization for any loss or expense
incurred by reason of such contract or transaction or shall be accountable for
any gain or profit realized from such contract or transaction.
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ARTICLE VI.
CAPITAL ACCOUNTS AND CONTRIBUTIONS
6.1 CAPITAL ACCOUNTS.
(a) There shall be established on the books of the Company a separate
capital account (a "Capital Account") for each Member.
(b) The Capital Account of each Member (regardless of the time or manner in
which such Member's interest was acquired) shall be maintained in
accordance with the rules of Section 704(b) of the Code, and Treasury
Regulation Section 1.704-1(b)(2)(iv). Adjustments shall be made to the
Capital Accounts for distributions and allocations as required by the
rules of Section 704(b) of the Code and the Treasury Regulations
thereunder.
(c) If there is a transfer of all or a part of an interest in the Company
by a Member, the Capital Account of the transferor that is attributable
to the transferred interest shall carry over to the transferee of such
Member.
(d) Notwithstanding any other provision contained herein to the contrary,
no Member shall be required to restore any negative balance in its
Capital Account.
6.2 CAPITAL CONTRIBUTIONS. The capital commitment of each Member shall be as set
forth in Schedule A under the column marked "Capital Commitment." Each Member
shall contribute 6.67% of the amount of its capital commitment to the Company
immediately upon execution of this Agreement, and shall thereafter make
contributions to the capital of the Company at such times and in such amounts as
may be requested, if at all, upon reasonable notice by a majority in interest of
the Members (each a "Capital Contribution"). No Member shall be required to make
Capital Contributions to the Company in an aggregate amount in excess of his or
her Capital Commitment; PROVIDED, HOWEVER, the Company may borrow from its
Members as well as from banks or other lending institutions to finance its
working capital or the acquisition of assets or for other purposes upon such
terms and conditions as shall be approved by the Members, and any such borrowing
from Members shall not be considered Capital Contributions or reflected in their
Capital Accounts. The value of all non-cash Capital Contributions made by
Members shall be set forth on SCHEDULE A hereto. No Member shall be entitled to
any interest or compensation with respect to its Contribution or any services
rendered on behalf of the Company except as specifically provided in this
Agreement or approved by the Members. No Member shall have any liability for the
repayment of the Contribution of any other Member and each Member shall look
only to the assets of the Company for return of its Contribution.
ARTICLE VII.
PROFITS, LOSSES AND DISTRIBUTIONS
7.1 PROFITS, LOSSES AND DISTRIBUTIONS.
(a) All profits and losses arising from the normal course of business
operations or otherwise and all cash available for distribution from
whatever source, commencing with the date of this Agreement, shall be
allocated or distributed to the Members according to their respective
Membership Interests.
(b) All profits and losses allocated to the Members shall be credited or
charged, as the case may be, to their Capital Accounts. The terms
"profits" and "losses" as used in this
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Agreement shall mean income and losses, and each item of income, gain,
loss, deduction or credit entering into the computation thereof, as
determined in accordance with the accounting methods followed by the
Company and computed in a manner consistent with Treasury Regulation
Section 1.704-1(b)(2)(iv). Profits and losses for federal income tax
purposes shall be allocated in the same manner as profits and losses
for purposes of this Article VII, except as provided in Section 7.3(a).
7.2 DISTRIBUTIONS UPON DISSOLUTION.
(a) Upon dissolution and termination, after payment of, or adequate
provision for, the debts and obligations of the Company, the remaining
assets of the Company (or the proceeds of sales or other dispositions
in liquidation of the Company assets, as may be determined by the
remaining or surviving Member(s)) shall be distributed to the Members
in accordance with the positive balances in their Capital Accounts
after taking into account all Capital Account adjustments for the
Company taxable year. No Member shall be liable to the Company or any
other Member for any negative balance in its Capital Account.
(b) With respect to assets distributed in kind to the Members in
liquidation or otherwise, (i) any unrealized appreciation or unrealized
depreciation in the values of such assets shall be deemed to be profits
and losses realized by the Company immediately prior to the liquidation
or other distribution event, and (ii) such profits and losses shall be
allocated to the Members and credited or charged to their Capital
Accounts, and any property so distributed shall be treated as a
distribution of an amount in cash equal to the excess of such fair
market value over the outstanding principal balance of and accrued
interest on any debt by which the property is encumbered. For the
purposes of this Section 7.2(b), "unrealized appreciation" or
"unrealized depreciation" shall mean the difference between the fair
market value of such assets, taking into account the fair market value
of the associated financing but subject to Section 7701(g) of the Code,
and the Company's basis in such assets as determined under Treasury
Regulation Section 1.704-1(b). This Section 7.2(b) is intended to
provide a rule for allocating unrealized gains and losses upon
liquidation or other distribution event, and nothing contained in this
Section 7.2(b) or elsewhere in this Agreement is intended to treat or
cause such distributions to be treated as sales for value. The fair
market value of such assets shall be determined by an appraiser or
other method to be selected by the Members.
7.3 SPECIAL PROVISIONS. Notwithstanding the foregoing provisions in this Article
VII:
(a) Income, gain, loss and deduction with respect to Company property which
has a variation between its basis computed in accordance with Treasury
Regulation Section 1.704-(b) and its basis computed for Federal income
tax purposes shall be shared among Members so as to take account of the
variation in a manner consistent with the principles of Section 704(c)
of the Code and Treasury Regulation Section 1.704-3.
(b) Section 704 of the Code and the Treasury Regulations issued thereunder,
including but not limited to the provisions of such regulations
addressing qualified income offset provisions, minimum gain chargeback
requirements and allocations of deductions
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attributable to nonrecourse debt and partner nonrecourse debt, are
hereby incorporated by reference into this Agreement.
7.4 DISTRIBUTION OF ASSETS IN KIND. No Member shall have the right to require
any distribution of any assets of the Company to be made in cash or in kind. If
a majority in interest of the Members determine to distribute assets of the
Company in kind, such assets shall be distributed on the basis of their fair
market value as determined by a majority in interest of the Member. Any Member
entitled to any interest in such assets shall, unless otherwise determined by a
majority in interest of the Members, receive separate assets of the Company, and
not an interest as tenant-in-common with other Members so entitled in each asset
being distributed. Distributions in kind need not be made on a pro-rata basis
but may be made on any basis which a majority in interest of the Members
determine to be reasonable under the circumstances.
ARTICLE VIII.
TRANSFERS OF INTERESTS
8.1 TRANSFER OF A MEMBER'S MEMBERSHIP INTEREST. The unanimous vote of the
non-assigning Members shall be required for the assignment, pledge, mortgage,
hypothecation, sale or other disposition or encumbrance of all or any part of
any Member's interest in the Company (collectively, a "Transfer"), which consent
may be withheld for any or no reason. The Members shall not cause or permit
interests in the Company to become "traded on an established securities market"
and shall withhold their consent to any Transfer that, to any Member's knowledge
after reasonable inquiry, would otherwise be accomplished by a trade on a
"secondary market (or the substantial equivalent thereof)," in each case within
the meaning of Sections 7704 or 469(k) of the Code and any regulations
promulgated thereunder that are in effect at the time of the proposed Transfer.
Any Transfer of a Member's interest in the Company which requires a unanimous
vote hereunder shall be made only upon receipt of a written opinion of counsel
for the Company or of other counsel reasonably satisfactory to the Company
(which opinion shall be obtained at the expense of the transferor) that such
Transfer will not result in (a) the Company or the Members being subjected to
any material additional regulatory requirements, (b) a violation of applicable
law or this Agreement, (c) the Company being classified as an association
taxable as a corporation or the Company otherwise being taxed as a corporation,
or (d) any adverse tax consequences to any Member to the extent the Transfer
results in the Company being deemed terminated pursuant to Section 708(b)(1)(B)
of the Code. Except in accordance with the provisions of this Section 8.1, each
of the Members agrees with all other Members that he or she will not make any
Transfer of all or any part of his interest in the Company.
8.2 ADMISSION OF MEMBER; EFFECT OF TRANSFER.
(a) If the transferee of any Member is admitted as a Member or is already a
Member, the Member transferring its Membership Interest shall be
relieved of liability with respect to the transferred Membership
Interest arising or accruing under this Agreement on or after the
effective date of the transfer, unless the transferor affirmatively
assumes such liability; PROVIDED, HOWEVER, that the transferor shall
not be relieved of any liability for prior distributions and unpaid
Capital Contributions unless the transferee affirmatively assumes such
liabilities.
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(b) Any person who acquires in any manner a Membership Interest or any part
thereof in the Company, whether or not such person has accepted and
assumed in writing the terms and provisions of this Agreement or been
admitted as a Member, shall be deemed by the acquisition of such
Membership Interest to have agreed to be subject to and bound by all of
the provisions of this Agreement with respect to such Membership
Interest, including without limitation, the provisions hereof with
respect to any subsequent transfer of such Membership Interest.
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND TERMINATION
9.1 DISSOLUTION. The Company shall dissolve and its affairs shall be wound up
upon the first to occur of the following:
(a) the written consent of the Members;
(b) the entry of a decree of judicial dissolution under Section 18-802 of
the Act; or
(c) The consolidation or merger of the Company in which it is not the
resulting or surviving entity.
9.2 LIQUIDATION. Upon dissolution of the Company, the Members shall act as its
liquidating trustees or the Members may appoint one or more Members as
liquidating trustee. The liquidating trustees shall proceed diligently to
liquidate the Company and wind up its affairs and shall dispose of the assets of
the Company as provided in Section 7.2. Until final distribution, the
liquidating trustees may continue to operate the business and properties of the
Company with all of the power and authority of the Members. As promptly as
possible after dissolution and again after final liquidation, the liquidating
trustees shall cause an accounting by the accounting firm then serving the
Company of the Company's assets, liabilities, operations and liquidating
distributions to be given to the Members.
9.3 CERTIFICATE OF CANCELLATION. Upon completion of the distribution of Company
assets as provided herein, the Company shall be terminated, and the Members (or
such other person or persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of Delaware under the
Act, cancel any other filings made pursuant to Sections 1.1 and 1.5 and take
such other actions as may be necessary to terminate the existence of the
Company.
ARTICLE X.
GENERAL PROVISIONS
10.1 OFFSET. Whenever the Company is obligated to make a distribution or payment
to any Member, any amounts that Member owes the Company may be deducted from
said distribution or payment by the Members.
10.2 NOTICES. Except as expressly set forth to the contrary in this Agreement,
all notices, requests, or consents required or permitted to be given under this
Agreement must be in writing
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and shall be deemed to have been properly given if sent by registered or
certified mail, postage prepaid, by commercial overnight courier, by facsimile
or if delivered in hand to Members at their addresses on SCHEDULE A hereto, or
such other address as a Member may specify by notice to the Company at the
address of the principal office of the Company specified in Section 1.3.
Whenever any notice is required to be given by law, the Certificate or this
Agreement, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
10.3 ENTIRE AGREEMENT; BINDING EFFECT. This Agreement constitutes the entire
agreement of the Members relating to the Company and supersedes all prior oral
or written agreements or understandings with respect to the Company. This
Agreement is binding on and inures to the benefit of the parties and their
respective successors, permitted assigns and legal representatives.
10.4 AMENDMENT OR MODIFICATION. Except as specifically provided herein, this
Agreement may be amended or modified from time to time only by a written
instrument signed by Members holding a majority of the Membership Interests.
10.5 GOVERNING LAW; SEVERABILITY. This Agreement is governed by and shall be
construed in accordance with the law of the State of Delaware, exclusive of its
conflict-of-laws principles. In the event of a conflict between the provisions
of this Agreement and any provision of the Certificate or the Act, the
applicable provision of this Agreement shall control, to the extent permitted by
law. If any provision of this Agreement or the application thereof to any person
or circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision shall be enforced to the
fullest extent permitted by law.
10.6 FURTHER ASSURANCES. In connection with this Agreement and the transactions
contemplated hereby, each Member shall execute and deliver any additional
documents and instruments and perform any additional acts that may be necessary
or appropriate to effectuate and perform the provisions of this Agreement and
those transactions.
10.7 WAIVER OF CERTAIN RIGHTS. Each Member irrevocably waives any right it may
have to maintain any action for dissolution of the Company or for partition of
the property of the Company. The failure of any Member to insist upon strict
performance of a covenant hereunder or of any obligation hereunder, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such Member's right to demand strict compliance herewith in the future. No
consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or waiver to
or of any other breach or default in the performance of the same or any other
obligation hereunder.
10.8 THIRD-PARTY BENEFICIARIES. The provisions of this Agreement are not
intended to be for the benefit of any creditor or other person to whom any debts
or obligations are owed by, or who may have any claim against, the Company or
any of its Members, except for Members in their capacities as such.
Notwithstanding any contrary provision of this Agreement, no such creditor or
person shall obtain any rights under this Agreement or shall, by reason of this
Agreement, be permitted to make any claim against the Company or any Member.
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10.9 INTERPRETATION. For the purposes of this Agreement, terms not defined in
this Agreement shall be defined as provided in the Act; and all nouns, pronouns
and verbs used in this Agreement shall be construed as masculine, feminine,
neuter, singular, or plural, whichever shall be applicable. Titles or captions
of Articles and Sections contained in this Agreement are inserted as a matter of
convenience and for reference, and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof.
10.10 COUNTERPARTS. This Agreement may be executed in any number of counterparts
with the same effect as if all parties had signed the same document, and all
counterparts shall be construed together and shall constitute the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date set forth above.
AFG INVESTMENT TRUST A
By: AFG ASIT Corporation, its Managing Trustee
By: /s/ James A. Coyne
-------------------------------------------
Name: James A. Coyne
Title: Senior Vice President
AFG INVESTMENT TRUST B
By: AFG ASIT Corporation, its Managing Trustee
By: /s/ James A. Coyne
-------------------------------------------
Name: James A. Coyne
Title: Senior Vice President
AFG INVESTMENT TRUST C
By: AFG ASIT Corporation, its Managing Trustee
By: /s/ James A. Coyne
-------------------------------------------
Name: James A. Coyne
Title: Senior Vice President
AFG INVESTMENT TRUST D
By: AFG ASIT Corporation, its Managing Trustee
By: /s/ James A. Coyne
-------------------------------------------
Name: James A. Coyne
Title: Senior Vice President
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MILPI HOLDINGS, LLC
Schedule A
MEMBERS
INITIAL CAPITAL MEMBERSHIP
NAME AND ADDRESS OF MEMBER CAPITAL COMMITMENT CONTRIBUTION INTEREST
AFG Investment Trust A $3,000,000 $200,000 10%
88 Broad Street, Sixth Floor
Boston, MA 02110
AFG Investment Trust B $6,000,000 $400,000 20%
88 Broad Street, Sixth Floor
Boston, MA 02110
AFG Investment Trust C $10,200,000 $680,000 34%
88 Broad Street, Sixth Floor
Boston, MA 02110
AFG Investment Trust D $10,800,000 $720,000 36%
88 Broad Street, Sixth Floor
Boston, MA 02110
TOTAL $30,000,000 $2,000,000 100%