OPERATING COMPANY
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LIMITED LIABILITY COMPANY AGREEMENT OF
FLORIDA COAST PAPER COMPANY, LLC.
A DELAWARE LIMITED LIABILITY COMPANY
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BY THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT, the
entities from time to time executing this Agreement (as the same
may be amended from time to time), as Members, hereby form a
limited liability company pursuant to the laws of the State of
Delaware, as of the 14th day of May, 1996.
ARTICLE I
DEFINITIONS
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1.01 DEFINITIONS. As used in this Operating Agreement, the
following terms have the meanings indicated:
"ACQUISITION" means the acquisition, pursuant to the Asset
Purchase Agreement, of substantially all of the operating
assets comprising the Mill and relating to its operations.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" shall have the meaning
set forth in Section 6.02(a) hereof.
"AFFILIATE" means any Person controlling, under common
control with or controlled by another Person.
"AGREEMENT" means this Agreement, as the same may be
amended, supplemented or modified from time to time in
accordance with the terms hereof then in effect.
"ASSETS" means the real and personal property, tangible and
intangible, pertaining to the Mill to be acquired by the
Company pursuant to the Asset Purchase Agreement.
"ASSET PURCHASE AGREEMENT" means the Asset Purchase
Agreement dated as of November 1, 1995 among Holdco (whose
interest therein has been assigned to the Company), the
Seller, and certain other parties as the same may be
amended, modified or supplemented from time to time in
accordance with the terms thereof then in effect.
"BOX USA" means Box USA Paper Corporation, a Delaware
corporation, a wholly owned subsidiary of Four M .
"BOARD OF MANAGERS" means the Board constituted pursuant to
Section 4.01 of this Agreement.
"BUSINESS DAY" means each day other than a Saturday, Sunday
or other day in which banking institutions in the States of
New York or Illinois are authorized or obligated by law to
close.
"CAPITAL ACCOUNT" means, as to each Member, the capital
account maintained on the books of the Company for such
Member. All provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with
Treasury Regulations, Section 1.704-1 (b) and shall be
interpreted and applied in a manner consistent with such
Treasury Regulations.
"CAPITAL CONTRIBUTION" means, as to each Member, the total
amount of cash actually paid or the value of property
actually contributed by such Member, whenever made.
"CERTIFICATE OF FORMATION" means the certificate as filed on
behalf of the Company with the Delaware Secretary of State
pursuant to Section 18201 (a) of the State Act, as the same
may be amended from time to time.
"COMPANY" means Florida Coast Paper Company L.L.C., a
limited liability company formed under the laws of the State
of Delaware pursuant to the Certificate of Formation and
this Agreement.
"COMPANY AGREEMENTS" means this Agreement, the Asset
Purchase Agreement, Output Purchase Agreement, the Four M
Lease, the Liquidity Facility, the Wood Fibre Procurement
Agreement and the Waste Paper Supply Agreement.
"ENTITY" means any general partnership, limited partnership,
limited liability company, corporation, joint venture,
employee benefit plan or trust, cooperative or association,
or any foreign trust, or foreign business organization.
"FCPC" means Florida Coast Paper Corporation, a Delaware
corporation and a wholly-owned subsidiary of Holdco.
"FIRST MORTGAGE NOTES" means the First Mortgage notes, in an
aggregate principal amount up to $165 million, to be issued
by the Company.
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"FIRST MORTGAGE NOTE INDENTURE" means the Indenture to be
entered between the Company and Norwest Bank Minnesota,
N.A., under which the First Mortgage Notes will be issued.
"FISCAL YEAR" means the Company's fiscal year which shall be
the calendar year.
"FOUR M" means Four M Corporation, a Maryland corporation.
"FOUR M LEASE" means the lease for the box plant located on
the Company's property between the Company and Four M (or a
subsidiary thereof), as the same may be amended,
supplemented or modified from time to time in accordance
with the terms thereof then in effect.
"HOLDCO" means Florida Coast Paper Holding Co., L.L.C., a
limited liability company formed under the laws of the State
of Delaware.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1876, as amended, and the applicable rules and
regulations thereunder.
"INDEMNITEE" shall have the meaning specified in Section
4.06.
"INTERNAL REVENUE CODE" means the United States Internal
Revenue Code of 1986, as from time to time amended, and any
successor thereto.
"LIQUIDITY FACILITY" means the Subordinated Credit Agreement
to be entered among the Company, Four M and Stone Container,
as the same may be amended, supplemented or modified from
time to time in accordance with the terms thereof then in
effect.
"MANAGER" means a member of the Board of Managers of the
Company.
"MEMBER" means each of the parties who initially or
hereafter executes a counterpart of this Agreement as a
Member.
"MEMBER INTEREST" means a Member's interest in the Company
including such Member's right to receive distributions and
the right to vote on, consent to, or otherwise participate
in any decision or action of or by the Members granted
pursuant to this Agreement.
"MILL" means the mottled white and unbleached kraft
linerboard manufacturing facility located in Port St. Joe,
Florida to be conveyed to the Company pursuant to the Asset
Purchase Agreement.
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"NET CASH FLOW" means, with respect to any Fiscal Year or
other fiscal period of the Company, the Net Income or Net
Loss of the Company PLUS the amount of depreciation and
other non-cash charges deducted in determining such Net
Income or Net Loss PLUS the amount of cash proceeds received
by the Company representing the basis of assets sold by the
Company, PLUS the proceeds of any indebtedness received by
the Company and PLUS the amount of any Reserves which the
Members determine to be in excess of the necessary amount of
Reserves, and MINUS the amount of all payments of principal
on account of any indebtedness, MINUS the amount of
capitalized expenses not deducted in determining Net Income
and MINUS the amount of cash added to any Reserves by the
Members, in each case during such Fiscal Year or other
fiscal period.
"NET INCOME" and "NET LOSS" mean: (a) "Net Income" means,
with respect to any fiscal period of the Company, the net
income of the Company determined in accordance with the same
principles employed in determining the Company's taxable
income as a partnership for federal income tax purposes,
including application of Section 703(a) of the Internal
Revenue Code, and taking into account the full amount of any
recognized gains or recognized losses and all items of
expense attributable to the sale or exchange of securities
or other assets. For purposes of this computation, taxable
income shall include every item requiring separate
computation under Section 703(a) of the Internal Revenue
Code plus income which is exempt from federal income tax and
less losses which are not deductible for federal income tax
purposes.
(b) "Net Loss" means, with respect to any
fiscal period of the Company, the net loss of the
Company determined in accordance with the same
principles employed in determining the Company's
taxable income for federal income tax purposes,
including application of Section 703(a) of the
Internal Revenue Code, and taking into account the
full amount of any recognized gains or recognized
losses and all items of expense attributable to
the sale and exchange of securities or other
assets. For purposes of this computation, taxable
income shall include every item requiring separate
computation under Section 703(a) of the Internal
Revenue Code plus income which is exempt from
federal income tax and less losses which are not
deductible for federal income tax purpose.
(c) In determining Net Income and Net Loss:
(1) all items of income, gain, loss, deduction and
credit shall be taken into account, including
expenditures of the Company which are not
deductible in computing taxable income and not
properly chargeable to capital accounts (as such
expenditures are described
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in and within the meaning of Section 705(a)(2)(B) of
the Internal Revenue Code) or which are treated as
Section 705(a)(2)(b) expenditures pursuant to Treasury
Regulation Section 1. 704-1 (b) (2) (iv) (i);
(2) gain or loss on the sale or exchange of
Company property shall be included in the
determination of Net Income and Net Loss when
recognized in accordance with the Internal Revenue
Code;
(3) any items that are specially allocated
to a Member pursuant to Section 6.06 of this
Agreement shall not be taken into account;
(4) upon the sale or other disposition of
Company property, in accordance with the Treasury
Regulations promulgated under Section 704(b) and
(c) of the Internal Revenue Code, the value of an
asset properly reflected on the Company's books at
the time of sale or other disposition shall be
substituted for the property's adjusted tax basis
if at the time of sale or disposition there is a
variance between such value and adjusted tax
basis; and
(5) if Company property is reflected on the
Company's books at other than its adjusted tax
basis, then in lieu of depreciation, amortization
and other cost recovery deductions taken into
account for federal income tax purposes, there
shall be taken into account depreciation for such
year or other period, computed in accordance with
the Treasury Regulations issued pursuant to
Section 704(b) and (c) of the Internal Revenue
Code.
All items that are components of Net Income and Net
Loss shall be divided among the Members in the same ratio as
they share Net Income and Net Loss.
"OUTPUT PURCHASE AGREEMENT" means the Output Purchase
Agreement to be entered among the Company, Four M and Stone
Container, as the same may be amended, supplemented or
modified from time to time in accordance with the terms
thereof then in effect.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, incorporated
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organization or government or a political subdivision,
agency or instrumentality thereof or other entity or
organization of any kind.
"RESERVES" means, for any fiscal period, funds set aside or
amounts allocated during such period to any reserves that
may be maintained by the Company.
"SELLER" means St. Joe Forest Products Company, a Florida
corporation.
"SSJ" means SSJ Corporation, a Delaware corporation, a
wholly-owned subsidiary of Stone Container.
"STATE ACT" means the Delaware Limited Liability Company
Act, as the same may be amended from time to time.
"STONE CONTAINER" means Stone Container Corporation, a
Delaware corporation.
"TREASURY REGULATIONS' shall include proposed, temporary and
final regulations promulgated under the Internal Revenue
Code in effect as of the date of filing the Certificate of
Formation and the corresponding sections of any regulations
subsequently issued that amend or supersede those
regulations.
"WASTE PAPER SUPPLY AGREEMENT" means the Waste Paper Supply
Agreement to be entered between the Company and a Person
owned either by Four M or jointly by Four M and Stone
Container, as the same may be amended, supplemented or
modified from time to time in accordance with the terms
thereof then in effect.
"WOOD FIBRE PROCUREMENT AGREEMENT" means the Wood Fibre
Procurement Agreement to be entered between the Company and
Stone Container, as the same may be amended, supplemented or
modified from time to time in accordance with the terms
thereof then in effect.
ARTICLE 11
FORMATION OF COMPANY
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2.01 FORMATION. The Members hereby agree to form a limited
liability company in accordance with the State Act.
2.02 NAME. The name of the Company is Florida Coast Paper
Company, L.L.C.
2.03 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company within the State of Florida shall be 300
First Street, Port St. Joe, Florida.
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The Company may locate its place of business and registered
office at any other place or places as the Members may from time
to time deem advisable.
2.04 REGISTERED OFFICE AND REGISTERED AGENT. The Company's
initial registered office shall be at the office of its
registered agent at 1209 Orange Street, Wilmington, Delaware
19801, and the name of its initial registered agent at such
address shall be The Corporation Trust Company. The registered
office and registered agent may be changed from time to time by
filing the address of the new registered office and/or the name
of the new registered agent with the Delaware Secretary of State
pursuant to the State Act.
2.05 TERM. The term of the Company shall expire on December
31, 2050, unless the Company is earlier dissolved in accordance
with either the provisions of this Agreement or the State Act.
2.06 BUSINESS OF THE COMPANY. The business of the Company
shall be:
(a) manufacture and sale of mottled white and/or
unbleached kraft linerboard and products associated
therewith; and
(b) such other lawful business activities permitted by
the State Act as the Members may determine to have the
Company undertake.
2.07 FISCAL YEAR. The fiscal year of the Company shall be
the period ending on December 31 of each calendar year.
2.08 LIABILITY OF MEMBERS. No Member shall be liable as
such for the liabilities of the Company. The failure of the
Company to observe any formalities or requirements relating to
the exercise of its powers of management of its business or
affairs under this Agreement or the State Act shall not be
grounds for imposing personal liability on the Members for the
liabilities of the Company.
ARTICLE III
CAPITALIZATION
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3.01 COMPANY INTERESTS. The Company is authorized to issue
an unlimited number of Member Interests to be designated as
"Common Member Interests." The powers and rights of the Common
Member Interests are as follows:
(a) NUMBER OF UNITS. The number of units of
Common Member Interests issued shall be determined by
dividing the amount of the Capital Contribution made
with respect thereto by $1,000. Fractional Common
Member Interests may be issued.
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(b) DISTRIBUTIONS. Members owning Common Member
Interests shall be entitled to receive, in proportion to
their percentage ownership of Common Member Interests, such
distributions as the Members may from time to time declare.
(c) PAYMENT ON DISSOLUTION. Upon the dissolution of
the Company and the winding up of its affairs, Members
owning Common Member Interests shall be entitled to share
equally, on a unit for unit basis, in the distribution of
the assets of the Company available for distribution to its
Members.
(d) VOTING RIGHTS. Each unit of Common Member
Interests shall be entitled to one (1) vote on all matters
submitted to a vote of the Members.
3.02 CAPITAL CONTRIBUTIONS.
(a) BY HOLDCO. Upon the execution of this
Agreement, Holdco has made a Capital Contribution to the
Company in the amount of $1,000, and has received with
respect thereto one unit of Common Member Interests. Not
later than the Business Day immediately preceding the day on
which the Acquisition is scheduled to be consummated, Holdco
shall make a Capital Contribution to the Company in the
amount of $39,599,000 with respect to Common Member
Interests.
(b) By FCPC. Upon the execution of this Agreement,
FCPC has made a Capital Contribution to the Company in the
amount of $1,000, and has received with respect thereto one
unit of Common Member Interests. Not later than the
Business Day immediately preceding the day on which the
Acquisition is scheduled to be consummated, FCPC shall make
a Capital Contribution to the Company in the amount of
$399,000 with respect to Common Company Interests.
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ARTICLE IV
MANAGEMENT OF THE COMPANY
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4.01 GENERAL. (a) Subject to Section 4.03, the business and
affairs of the Company shall be managed by or under the direction
of its Board of Managers. The Board of Managers shall consist of
such number of individuals as shall be determined from time to
time by the Members. The initial Board of Managers shall consist
of six (6) individuals. Individuals serving on the Board of
Managers shall be designated by the Members and need not be
Members. A Manager shall hold office until the designation and
qualification of his or her successor or until his or her earlier
resignation or removal. A Manager may resign at any time upon
written notice to the Company and may be removed, with or without
cause, at any time by the Members. The presence of not less than
a majority of the number of Managers constituting the full Board
of Managers shall be required to constitute a quorum at all
meetings of the Board of Managers. All decisions by the Board of
Managers shall require the concurrence of a majority of the
number of Managers constituting the full Board of Managers.
Notwithstanding any other provisions of this Agreement, the
Members shall have continuing authority to make all decisions
necessary for the conduct of the Company's business and authority
to bind the Company and its Members. The Board of Managers may,
with the unanimous approval of the Members owning Common Member
Interests, delegate authority to officers of the Company;
PROVIDED, however, that any such delegated authority may be
revoked by the Board of Managers or the Members at any time. No
Manager shall have the authority to bind the Company unless
specifically authorized pursuant to the terms of this Agreement.
(b) Without limiting the role or functions of the
Board of Managers, as required by the First Mortgage Note
Indenture, the Board of Managers shall
(i) determine the fair market value of assets
which are sold in an Asset Sale or Collateral
Asset Sale (as those terms are defined in the
First Mortgage Note Indenture);
(ii) determine the fair market value of any
Replacement Collateral (as defined in the
First Mortgage Note Indenture) purchased with
the proceeds of a Collateral Asset Sale or an
Event of Loss (as those terms are defined in
the First Mortgage Note Indenture);
(iii)determine the fair market value of all
Restricted Payments (as defined in the
First Mortgage Note Indenture) other
than in cash; and
(iv) determine the fairness to the Company of, and
to approve, certain Affiliate Transactions
(as defined in the First
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Mortgage Note Indenture) as provided in the First
Mortgage Note Indenture.
4.02 BOARD OF MANAGERS.
(a) REGULAR MEETINGS. The Board of Managers shall
establish regular meeting dates, which shall be no less
frequently than quarterly. The time and place of each
regular meeting shall be determined by the Board of Managers
and shall be set forth in a written notice sent to each
Manager by the Secretary of the Company at least seven (7)
days in advance.
(b) SPECIAL MEETINGS. Special meetings of the Board
of Managers may be called by the Managing Director or any
two (2) Managers upon at least three (3) days' prior written
notice for the purpose stated in such notice and at such
time and place as shall be set forth in such notice. The
minimum notice period may be waived by a Manager and will be
deemed waived by any Manager who attends a special meeting,
without objection.
(c) ACTION WITHOUT A MEETING. Any action of the Board
of Managers may be taken without a meeting through the
written consent of not less than a majority of the number of
Managers constituting the full Board of Managers..
(d) APPROVAL OF CERTAIN AGREEMENTS. The Board of
Managers hereby ratifies, confirms and approves the entry
into the following agreements on behalf of the Company:
(i) Output Purchase Agreement;
(ii) Four M Lease;
(iii)Liquidity Facility
(iv) Waste Paper Supply Agreement; and
(vi) Wood Fibre Procurement Agreement.
4.03 MEMBER APPROVALS. (a) Notwithstanding the provisions
of Sections 4.01 and 4.02, the Company may take the following
actions only with the unanimous approval of the Members owning
Common Member Interests:
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(i) any sale, lease, transfer or other
disposition of all or substantially
all of the Company's property or
assets, including its good will,
not in the usual course of
business;
(ii) any amendment, repeal or restatement of
all or any part of the Certificate of
Formation;
(iii)the sale, lease or other
disposition of any asset of
the Company having a fair
market value of more than $1
million per asset and more the
$5 million in the aggregate
for all assets sold, leased or
otherwise disposed of in any
Fiscal Year (except sales or
other dispositions of
inventory in the ordinary
course of business);
(iv) the purchase of machinery, equipment, real
estate and improvements requiring the
expenditure of more than $1 million per item
or, in the aggregate, in excess of the
capital improvements budget for the
applicable Fiscal Year;
(v) the payment to any employee (including an
officer) of the Company of a salary, which,
when added to the salary, if any, to be paid
by Holdco with respect to such year, is in
excess of $150,000 in any Fiscal Year;
(vi) the assumption, guarantee or endorsement of
any obligation of any Person;
(vii)the adoption of the Company's operating
and capital improvements budgets and
strategic plans;
(viii)the amendment of this Agreement;
(ix) the approval of any distributions to Members
including, without limitation, distributions
in the form of the redemption or purchase for
cancellation of Membership Interests or in
connection with the reduction of capital;
(x) the creation or assumption of any
indebtedness for money borrowed or the
granting of any mortgage on or security
interest in any property of the Company
except pursuant to
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the agreements referred to in Section 4.02(d)
or as specifically provided herein or in the
Company's budgets ;
(xi) the amendment or termination of any of the
agreements specified in Section 4.02(d);
(xii)the admission of any new Members, the
issuance of any additional Member
Interests, or the approval of the
transfer of any outstanding Member
Interests other than any Transfer (as
hereinafter defined) of all or any
portion of a Membership Interest to
Stone Container pursuant to those
Limited Liability Pledge Agreements to
be entered into by the Members in
connection with the initial financing of
the Company as permitted by Section
7.01;
(xiii)any transaction between the Company and
a Member or an Affiliate of a Member,
except in accordance with the terms of
the agreements referred to in Section
4.02(d);
(xiv)the approval of any supply, requirements
or other contracts involving the
expenditure by the Company of more than
$100,000 per annum or not terminable by
the Company without penalty for a period
in excess of six months;
(xv) the adoption, approval, implementation and,
after such adoption, approval or
implementation, the amendment of any
collective bargaining agreement, employee
benefit plan, employee health and welfare
plan or management incentive program;
(xvi)the establishment of an appropriate
management structure for operating the
Company's business, including but not
limited to the establishment of
executive offices and the election of
individuals to fill such offices; and
(xvii)the admission in writing by the Company
of its inability to pay its debts as
they become due, or the voluntary
commencement by the Company of any
proceeding or its filing of any petition
under any bankruptcy, insolvency or
similar law or its seeking dissolution
or reorganization or the appointment of
a receiver, trustee, custodian or
liquidator for the Company or a material
portion of its property, assets or
business or its seeking to effect a plan
or other
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arrangement with creditors, or its
filing any answer admitting the
jurisdiction of the court and the
material allegations of an involuntary
petition filed against the Company in
any bankruptcy, insolvency or similar
proceeding, or its making a general
assignment for the benefit of creditors
or its acquiescence in the appointment
of a receiver, trustee, custodian or
liquidator for a material portion of the
Company's property, assets or business.
(b) In the event that the Members cannot reach
unanimous agreement with respect to any of the actions
delineated in Sections 4.03(a) (other than Section
4.03(a)(xvii)), the disagreement shall be settled by binding
arbitration in Chicago, Illinois (or at such other place as
the parties may mutually agree) in accordance with the laws
or regulations then in effect by the American Arbitration
Association. For all purposes of this Agreement, the
determination reached in such arbitration shall be treated
as the unanimous agreement of the Members. If applicable,
judgment upon any award rendered may be entered in any
court, state or federal, having jurisdiction.
(c) Notwithstanding any provision of this Agreement
which might be considered inconsistent herewith, by
executing this Agreement the Members hereby authorize the
Company, in connection with the Acquisition, (i) to place up
to $165,000,000 of First Mortgage Notes secured by a lien on
the Mill on such terms, including interest rate, as the
chairman of Four M and president of Stone Container shall
agree and to pay all expenses, including fees to Bear
Stearns & Co., Inc. and Indosuez Capital, incurred in
connection therewith, and (ii) to pay a portion of the
purchase price due under the Asset Purchase Agreement by the
issuance to Seller of its $10,000,000 senior subordinated
promissory note on the terms set forth in the Asset Purchase
Agreement. The Members hereby also authorize the Company
to enter into a "Qualifying Facility" (as defined in the
Liquidity Facility) when and if a Qualifying Facility is
made available to the Company on terms, including interest
rate, that the chairman of Four M and president of Stone
Container find acceptable.
4.04 OFFICERS. The Company shall have a Managing Director-
Chief Executive Officer, a President-Chief Operating Officer, a
Secretary, a Treasurer and such additional officers and assistant
officers having such duties as the Members shall approve from
time to time. Officers of the Company need not be Members. An
officer shall hold office until the election and qualification of
his or her successor or until his or her earlier resignation or
removal. An officer may resign at any time upon written notice
to the Company and may be removed, with or without cause, at any
time as provided in Section 4.02(l) of the Limited Liability
Company Agreement of
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Holdco or, if Holdco shall no longer own a majority of the Common
Member Interests, by the unanimous vote of the Members.
(a) Subject to Sections 4.01 and 4.03, the Managing
Director shall have power and authority, acting directly or
through officers, employees or authorized agents, to direct,
oversee and supervise the management of the day-to-day
operations of the Company, including without limitation the
power and authority to take any or all of the following
actions on behalf of the Company:
(i) the implementation of any appropriate
management structure established by the
Members for operating the Company's business,
including but not limited to the
establishment of non-executive positions, the
appointment of individuals to fill such
positions, and the establishment of
compensation for all such individuals;
(ii) the recommendation to the Members and
implementation of a strategic plan for
achieving the Company's business goals; and
(iii)any and all other actions as are
generally understood to be the duties
and responsibilities of a person having
the title of chief executive officer of
a public corporation.
(b) PRESIDENT-CHIEF OPERATING OFFICER. Subject to
Sections 4.01 and 4.03 and the direction, oversight and
supervision of the Managing Director, the President-Chief
Operating Officer shall have power and authority, acting
directly or through officers, employees or authorized
agents, to take any or all of the following actions or
behalf of the Company:
(i) administer collective bargaining agreements;
(ii) administer employee pension benefit plans,
employee health and welfare plans, and
management incentive plans;
(iii)administer human resource policies;
(iv) create and maintain proper internal
accounting records, controls and procedures;
(v) determine and schedule all manufacturing
processes and procedures;
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(vi) determine the price and terms of sale of all
products and negotiate all contracts with
suppliers;
(vii)maintain the Company's property,
including but not limited to the
purchase of such insurance on the
property as the President-Chief
Operating Officer deems prudent or as
may be required by the terms of any debt
instruments to which the Company is
subject or its properties are bound; and
(viii)take any and all actions and make any
and all expenditures that may be
contemplated in, or incidental to, the
individual items set forth in any budget
approved by the Members.
(c) SECRETARY. The Secretary shall keep an accurate
record of the acts and proceedings of the Members and of the
Board of Managers and shall perform all duties performed by
like officers of entities formed under state corporate law.
(d) TREASURER. Subject to Sections 4.01 and 4.03 and
the direction and control of the Members, the Managing
Director or the President, the Treasurer shall receive all
moneys and deposit same with one or more of the duly
designated depositories of the Company, shall keep accurate
accounts of the finances of the Company; shall make reports
thereof to the Members, the Board of Managers, the Managing
Director and the President, whenever required by any of
them; shall have responsibility for the extension of credit
(subject to the provisions of this Agreement), the payment
of accounts payable, and the collection of accounts
receivable; and shall perform such other duties as are
normally performed by like officers of entities formed under
state corporate law or as may be specifically set forth in
this Agreement.
4.05 INDEMNITY OF MEMBERS, MANAGERS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS.
(a) NO LIABILITY. No Member, Manager, officer,
employee or agent of the Company (the "Indemnitee") shall
have any liability to the Company or to any Member for any
loss suffered by the Company which arises out of any action
or inaction of the Indemnitee if the Indemnitee acted in
good faith and in a manner reasonably believed by the
Indemnitee to be in the best interest of the Company and if
such course of conduct did not constitute recklessness or
deliberate misconduct of the Indemnitee. The Indemnitee
shall be indemnified to the fullest extend provided by law
by the Company against any and all
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losses, judgments, liabilities, expenses and amounts paid in
settlement of any claim sustained in connection with any action
or inaction on behalf of the Company, provided that the same was
not the result of gross negligence or deliberate misconduct on
the part of the Indemnitee.
(b) ADVANCE DEFENSE COSTS. Subject to the approval of
the Members, the Company may pay the expenses incurred by a
person who may be entitled to indemnification under this
Section 4.05 in investigating, preparing or defending any
claim, action, suit or proceeding in advance of the final
disposition of such proceeding; PROVIDED, however, that any
such person must first execute an agreement providing for
the repayment of all expenses so advanced in the event of a
final determination by the Company that the person is not
entitled to indemnification under this Section 4.05.
(c) NONEXCLUSIVE. The right of indemnification hereby
provided shall not be exclusive of, and shall not affect,
any other rights to which an Indemnitee may be entitled.
Nothing contained in this Section 4.05 shall limit any
lawful rights to indemnification existing independently of
this Section 4.05.
(d) SUCCESSORS AND ASSIGNS. The rights provided by
this Section 4.05 shall inure to the benefit of the heirs,
executors, administrators, successors, and assigns of an
Indemnitee.
4.06 INSPECTION OF BOOKS AND RECORDS. Upon reasonable
request, each Member shall have the right, during ordinary
business hours, to inspect Company books, records and documents
and to obtain a copy of same at the expense of the Company.
ARTICLE V
CAPITAL ACCOUNTS
----------------
5.01 ESTABLISHMENT OF CAPITAL ACCOUNTS. There shall be
established and maintained for each Member a Capital Account.
Each Member's Capital Account shall initially be zero and shall
be increased by the amount of the Capital Contributions made by a
Member pursuant to Section 3.02 and any subsequent Capital
Contribution made by a Member.
5.02 ADJUSTMENTS TO CAPITAL ACCOUNTS. The Capital Account
of each Member shall be adjusted in the following manner. Each
Capital Account shall be increased by
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such Member's allocable share of Net Income and shall be
decreased by (a) such Member's allocable share of Net Losses, and
(b) the amount (in cash or in value of any distribution in kind)
of all distributions made to such Member. The Company shall make
such other adjustments to each Member's Capital Account as may be
required by the Treasury Regulations promulgated under Section
704(b) and (c) of the Internal Revenue Code. Any such allocation
adjustments shall be made not less frequently than as of the end
of each Fiscal Year of the Company, and any such distribution
adjustments shall be made as of the date of any distribution to
the Members.
5.03 TRANSFER OF INTERESTS. In the event of a permitted
sale or exchange of all or a portion of a Membership Interest,
the Capital Account of the transferor shall become the Capital
Account of the transferee to the extent it relates to all or a
portion of the transferred Membership Interest in accordance with
Treas. Reg. Section 1.704-1-(b)(2)(iv).
5.04 RETURN OF MEMBERS' CONTRIBUTIONS TO CAPITAL. A Member
shall not receive out of the Company's property the return of all
or any part of such Member's Capital Contribution until all
liabilities of the Company, except liabilities to Members on
account of their Capital Contributions, have been paid or there
remains property of the Company sufficient to pay them. A
Member, regardless of the nature of such Member's Capital
Contribution, has only the right to demand and receive cash in
return for such Member's Capital Contribution. Without limiting
the right of the Company to make a distribution in return of
capital, no Member shall have the right to receive the return of
all or any part of such Member's Capital Contribution except upon
dissolution of the Company and the winding up of its affairs.
ARTICLE VI
ALLOCATIONS, INCOME TAX DISTRIBUTIONS, ELECTIONS, AND REPORTS
-------------------------------------------------------------
6.01 ALLOCATIONS OF PROFITS AND LOSSES FROM OPERATIONS.
Except as otherwise provided in Section 6.02, Net Income and Net
Losses shall be allocated among the Members in proportion to the
ownership of Common Member Interests.
6.02 SPECIAL ALLOCATIONS.
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(a) ADJUSTED CAPITAL ACCOUNT DEFICIT. As used in this
Section 6.02, "Adjusted Capital Account Deficit" shall mean,
with respect to any Member, the deficit balance, if any in
such Member's Capital Account as of the end of the relevant
fiscal year after decreasing such Capital Account for the
items described in Treasury Regulations, Sections 1.704-1
(b)(2)(ii)(d) (4), (5) and (6). The foregoing definition of
Adjusted Capital Account Deficit is intended to comply with
the provisions of Treasury Regulations, Section 1.704-1
(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
(b) QUALIFIED INCOME OFFSET. Notwithstanding any
other provision of this Agreement, if any Member
unexpectedly receives an adjustment, allocation or
distribution described in subparagraph (4), (5) or (6) of
Treasury Regulations, Section 1.704-1-(b)(2)(ii)(d), items
of Company income and gain shall be specially allocated to
such Member in an amount and manner sufficient to eliminate
as quickly as possible (to the extent required by the
applicable Treasury Regulations) an Adjusted Capital Account
Deficit created by such adjustment, allocation or
distribution.
(c) GROSS INCOME ALLOCATION. If any Member has an
Adjusted Capital Account Deficit at the end of any Fiscal
Year, such Member shall be specially allocated items of
Company income and gain in the amount of such excess as
quickly as possible until such Adjusted Capital Account
Deficit has been eliminated.
(d) INTERNAL REVENUE CODE SECTION 754 ADJUSTMENTS. To
the extent that an adjustment to the adjusted tax basis of
any Company asset pursuant to Section 734(b) or 743(b) of
the Internal Revenue Code is required, pursuant to Treasury
Regulations, Section 1.704-1 (b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) and
such gain or loss shall be specially allocated to the
Members in a manner consistent with the manner in which
their Capital Accounts are required to be adjusted pursuant
to such Section of the Treasury Regulations.
(e) LIMITATION ON NET LOSS ALLOCATION.
Notwithstanding any other provision of this Agreement, no
Member shall be allocated any Net Loss in excess of the
amount of Net Loss which can be so allocated without causing
such Member to have an Adjusted Capital Account Deficit at
the end of any fiscal year.
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(f) CURATIVE ALLOCATIONS. The allocations set forth
in Sections 6.02(b), (c), and (e) (the "Regulatory
Allocations") are intended to comply with certain
requirements of Treasury Regulations 1.704-1(b).
Notwithstanding any other provisions of this Article VI
(other than the Regulatory Allocations), the Regulatory
Allocations shall be taken into account in allocating other
items of Net Income or Net Loss so that, to the extent
possible, the net amount of allocations of such items and
the Regulatory Allocations to each Member shall be equal to
the net amount that would have been allocated to each such
Member if the Regulatory Allocations had not occurred.
(g) NONRECOURSE DEDUCTIONS.
(i) Nonrecourse deductions and minimum gain
chargeback, as defined in Treasury
Regulations Section 1.704-2(b)(2) and (c),
shall be allocated among the Members in
proportion to the ownership of Common Member
Interests.
(ii) Member nonrecourse deductions and chargeback
of Members nonrecourse debt minimum gain, as
defined in Treasury Regulations Section
1.704-2(i), shall be allocated to the Member
who bears the economic risk of loss with
respect to the Member nonrecourse debt (as
defined in Treasury Regulations Section
1.704-2(b)(4)) to which such Member
nonrecourse deductions are attributable in
accordance with Treasury Regulations Section
1.704-2(i), unless required otherwise by
Treasury Regulations Section 1.704-2.
(h) CERTAIN OTHER SPECIAL ALLOCATIONS. The provisions
of this Agreement relating to proper maintenance of the
Capital Accounts are intended to comply with Treasury
Regulations, Section 1.704-1(b) and shall be interpreted and
applied in a manner consistent with such Regulations.
Notwithstanding any other provision of this Agreement, the
Members shall cause the Company to effect such other
allocations as may be necessary or appropriate to permit the
Company to satisfy applicable Internal Revenue Code
provisions and Treasury Regulations thereunder or to
properly reflect or comply with the underlying economic
arrangement between or among the Members as described in
this Agreement.
6.03 DISTRIBUTIONS.
(a) Except to the extent prohibited by any loan or
other agreement to which the Company is subject, and subject
to Section 18-607 of the State Act,
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after making adequate provision for all principal and interest
payments on indebtedness of the Company; all expenditures
incurred incident to the normal operation of the Company's
business; and such Reserves as the Members deem reasonably
necessary to the proper operation of the Company's business, the
Members shall cause the Company to distribute to the Members with
respect to the Common Interests such of the Company's Net Cash
Flow for any Fiscal Year as the Members determine in their sole
discretion.
(b) Anything in Section 6.03(a) to the contrary
notwithstanding, each Member shall be entitled to receive a
minimum distribution which is sufficient to pay all federal,
state and local income taxes with respect to the Net Income
allocated to such Member's Capital Account for such Fiscal
Year. Since the Members may have differing income tax rates
applicable to the Net Income allocated to their respective
Capital Accounts, it is agreed that the distribution
described in the preceding sentence shall be calculated by
multiplying the Net Income allocated to each Member pursuant
to this Article VI by the highest combined income tax rate
applicable to any Member to whom Net Income was allocated
pursuant to this Article VI. The Members recognize and
agree, however, that, notwithstanding the foregoing
provisions of this Section 6.03(b), the First Mortgage Note
Indenture may limit the amount to be distributed pursuant to
this Section 6.03(b) insofar as it provides (i) that the
relevant tax rate shall be the combined federal, state and
local tax rate that would have been applicable to the
Company if it were a Delaware corporation filing separate
tax returns, and (ii) that, in determining the amount of Net
Income allocated to a Member's Capital Account for any
Fiscal Year, the amount of any net operating loss
carryforwards or other carryforwards or tax attributes, such
as alternative minimum tax carryforwards, that would have
arisen if the Company were a Delaware corporation shall be
taken into account.
6.04 WITHHOLDING. The Company shall at all times be entitled
to make payments with respect to any Member in amounts required
to discharge any obligation of the Company to withhold or make
payments to any governmental authority with respect to any
federal, state or local tax liability of such Member arising as a
result of such Member's interest in the Company as may be
required by law. Any such payment shall be treated as a
distribution for all purposes of this Agreement.
6.05 PRIORITY AND RETURN OF CAPITAL. No Member shall have
priority over any other Member, either for the return of Capital
Contributions or for Net Income, Net Losses, or distributions.
6.06 SPECIAL ALLOCATION RULES.
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(a) RESTATEMENT OF BOOK VALUE. In accordance with
Internal Revenue Code Regulations, Sections 1.704-1(b)(2)(iv)(f)
and (g), the Members may, upon the occurrence of the events specified
in such Sections of the Treasury Regulations, revalue the Company's
property and assets (including intangible assets such as goodwill)
as well as the Members' Capital Accounts.
(b) PRORATIONS. For purposes of determining the Net
Income and Net Loss, or any other items allocable to any
period, Net Income, Net Loss and any such other items shall
be determined on a daily, monthly, or other basis, as
determined by the Members using any permissible method under
Section 706 of the Internal Revenue Code and the Treasury
Regulations thereunder.
6.07 ACCOUNTING PRINCIPLES. The Company's books and
accounts shall be kept on the accrual basis of accounting in
accordance with generally accepted accounting principles, shall
include separate Capital Accounts for each Member and shall be
kept in such manner as will permit Net Income and Net Loss to be
calculated in accordance with this Agreement.
6.08 LOANS TO COMPANY. Nothing in this Agreement shall
prevent any Member from making secured or unsecured loans to the
Company by agreement with the Company, approved by the Members.
6.09 TAX RETURNS. The Company shall cause to be prepared
and timely filed after the end of each Fiscal Year all federal,
state and local income tax returns of the Company for such Fiscal
Year. Net Income or Net Loss as defined in this Agreement shall
be adjusted and restated, for purposes of computing taxable
income or loss, to the extent necessary to comply with the
requirements of the Internal Revenue Code and the Treasury
Regulations. Copies of those returns, or pertinent information
from the returns, shall be furnished to the Members within a
reasonable time after the filing of such tax returns. Within
sixty (60) days after the end of each Fiscal Year, the Company
shall cause to be delivered to each Member a Form K-1 and such
other information, if any, with respect to the Company as may be
necessary for the preparation of such Member's federal income tax
returns.
6.10 TAX ELECTIONS. All elections permitted to be made by
the Company under federal or state laws shall be made by the
President-Chief Operating Officer of the Company at the direction
of the Members.
6.11 TAX MATTERS PARTNER. The Members shall designate one
of the Members to act as tax matters partner of the Company
pursuant to Section 6231 (a)(7) of the Internal Revenue Code.
Any Person so designated may be removed at any time and from time
to time by the Members; provided that the Members, at the time of
such
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removal, designate a replacement and comply with the requirements
of proposed Treasury Regulations, Section 301.6231 (a)(7).
6.12 COMPANY REPORTS. The Company shall engage an
independent certified public accountant of recognized regional
standing to act as the accountant for the Company and to audit
the Company's books and accounts as of the end of each Fiscal
Year. Within ninety (90) days after the end of each fiscal year,
the Company shall prepare, on the basis of the report of the
independent certified public accountants, and mail to each
Member, together with the report of the independent certificate
public accountants, a report including:
(a) the amount of each Member's Capital Account at
the end of such Fiscal Year;
(b) the amount of the sum of the distributions made to
each Member during such Fiscal Year; and
(c) such other financial information and documents
respecting the Company and its business as the President-
Chief Operating Officer of the Company deems appropriate or
as the Members may direct.
ARTICLE VII
TRANSFERABILITY
---------------
7.01 RESTRICTIONS ON TRANSFER. No Member may pledge, sell,
assign, exchange or otherwise transfer ("Transfer") all or any
part of its Membership Interest to any Person; provided, however,
that any Member may Transfer all or any portion of its Membership
Interest to Stone Container pursuant to those Limited Liability
Company Pledge Agreements to be entered by the Members in
connection with the initial financing of the Company. Any
attempted or purported Transfer of a Membership Interest other
than as permitted by the proviso contained in the immediately
preceding sentence shall be null and void and of no effect.
ARTICLE VIII
DISSOLUTION AND TERMINATION
---------------------------
8.01 DISSOLUTION.
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(a) EVENTS OF DISSOLUTION. The Company shall be
dissolved and its affairs wound up upon the first to occur
of the following:
(1) When the term fixed for the duration of the
Company shall expire pursuant to Section 2.05
above;
(2) By the unanimous written agreement of all
Members;
(3) Upon the bankruptcy or dissolution of a
Member, the Transfer of a Membership Interest
(not including a pledge thereof), or the
occurrence of any other event specified in
Section 18.801 of the State Act which
terminates the continued membership of a
Member in the Company (a "Withdrawal Event");
provided, however, that if there is more than
one remaining Member (including a permitted
transferee), the remaining Members may, by
unanimous consent, reconstitute and continue
the business of the Company within ninety
(90) days following the occurrence of such
Withdrawal Event; or
(4) Upon the entry of a decree of judicial
dissolution under Section 18-802 of the
State Act.
(b) NO VOLUNTARY ACTS TO DISSOLVE. Except as
expressly permitted in this Agreement, a Member shall not
voluntarily resign or take any other voluntary action that
directly causes a Withdrawal Event. Unless otherwise
approved by the other Members, a Member whose Member
Interest is terminated by virtue of a Withdrawal Event,
regardless of whether the Withdrawal Event was the result of
a voluntary act by the Member, shall not be entitled to
receive any distributions to which the Member would not have
been entitled had the Member remained a Member. Damages for
breach of this Section 8.01(b) shall be monetary damages
only (and not specific performance), and the damages may be
offset against distributions by the Company to which such
Member would otherwise be entitled.
8.02 WINDING UP, LIQUIDATION, AND DISTRIBUTION OF ASSETS.
(a) LIQUIDATION BY LIQUIDATION AGENT. Upon
dissolution, the Company shall begin winding up its
business, but the Company is not terminated, and shall
continue, until the winding up of the affairs of the Company
is completed and a certificate of cancellation has been
filed with the Delaware Secretary of State pursuant to
Section 18-203 of the State Act. As provided in Section
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8.02(b), the Liquidating Agent shall act as liquidator. The
Liquidating Agent shall have full power and authority,
without the approval of the Members, to:
(l) sell, at such prices and upon such terms as
the Liquidating Agent in his, her or its sole
discretion may deem appropriate, any or all
of the assets of the Company, provided that
the Liquidating Agent shall not deal directly
or indirectly with the Company for his, her
or its own account or for the account of any
of his, her or its Affiliates, without the
approval in writing of all of the Members;
and
(2) effect the distribution of the assets of the
Company in the manner set forth in Sections
8.03 and 8.04.
(b) LIQUIDATING AGENT. A "Liquidating Agent" shall be
selected by the Members, which Liquidating Agent shall be
solely responsible for the liquidation of the Company. The
Liquidating Agent may, but need not, be a Member or an
Affiliate of a Member. The fees and expenses of the
Liquidating Agent shall be payable solely from the assets of
the Company. The Liquidating Agent shall have the sole
discretion as to whether distribution shall be in cash or in
kind.
8.03 PRIORITY ON LIQUIDATION; DISTRIBUTIONS. Upon the
winding up of the Company, the proceeds of liquidation shall be
applied in the following order of priority:
(a) to pay the costs and expenses of the dissolution
and liquidation;
(b) to pay matured debts and liabilities of the
Company to all creditors of the Company, including Members;
(c) to establish any Reserves which the Liquidating
Agent may deem necessary or advisable for any contingent or
unmatured liability of the Company; and
(d) the balance, if any, to the Members in accordance
with Section 18-804 of the State Act and Section 3.01(b)
hereof.
8.04 CERTAIN DISTRIBUTIONS IN LIQUIDATION. The Liquidating
Agent shall use his, her or its best efforts, in good faith, to
sell all of the assets of the Company, at their respective fair
market values, if such sales would be feasible, reasonable or
prudent. If the Liquidating Agent shall determine, in his, her
or its sole discretion, that it is not feasible, reasonable or
prudent to liquidate all of the assets of the Company, then
assets shall be retained or distributed by the Liquidating Agent
on behalf of the Company as follows:
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a) the Liquidating Agent shall retain assets having a
value equal to the amount by which the net proceeds of
liquidated assets are insufficient to satisfy the
requirements of clauses (a) through (c) of Section 8.03
hereof; and
(b) the remaining assets shall be distributed to the
Members pursuant to clause (d) of Section 8.03 hereof, on a
PRO RATA basis, if feasible.
If, in the sole discretion of the Liquidating Agent, it shall be
determined not to be feasible to distribute to each Member a PRO
RATA share of each asset, the Liquidating Agent may allocate and
distribute specific assets to specific Members as the Liquidating
Agent shall determine to be fair and equitable, taking into
consideration, INTER ALIA, the basis for tax purposes of each
asset distributed. Subject to the foregoing, if any Member
delivers to the Liquidating Agent an opinion of counsel that it
would be unlawful for such Member to own certain assets to be
distributed by the Company to such Member pursuant to Section
8.03, the Liquidating Agent shall distribute to such Member in
lieu thereof, such other assets of the Company as the Liquidating
Agent may determine.
8.05 ORDERLY LIQUIDATION. A reasonable time shall be
allowed for the orderly liquidation of the assets of the Company
and the discharge of liabilities so as to minimize the losses
normally attendant upon a liquidation. The Liquidating Agent
shall, however, if possible consistent with the preceding
sentence, dispose of Company assets and effect distributions to
the Members within one (1) after the date of dissolution of the
Company.
8.06 SOURCE OF DISTRIBUTIONS. Except as may be otherwise
provided by law, upon dissolution, each Member shall look solely
to the assets of the Company for the return of such Member's
Capital Contributions. The Liquidating Agent shall not be liable
out of his, her or its own assets for the return of the Capital
Contributions of the Members. If the Company property remaining
after the payment or discharge of the debts and liabilities of
the Company is insufficient to return the Capital Contribution of
any Member, such Member shall have no recourse against any other
Member.
8.07 STATEMENTS ON TERMINATION. Each Member shall be
furnished with a statement prepared by the Company's accountant,
which shall set forth the assets and liabilities of the Company
as of the date of complete liquidation, the Net Income and Net
Losses of the Company as of the date of complete liquidation, and
the Capital Account balances of the Members as of such date
(which may reflect any revaluation of Company assets in
accordance with the Treasury regulations promulgated under
Section 704(b) of the Internal Revenue Code), and each Member's
share thereof.
8.08 CERTIFICATE OF CANCELLATION. Upon compliance with the
distribution plan set forth in this Article VIII, the Members
shall cease to be such, and the Liquidating
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Agent shall execute, acknowledge, and cause to be filed with the
Delaware Secretary of State a certificate of cancellation
pursuant to Section 18-203 of the State Act. Upon the filing of
the certificate of cancellation, the existence of the Company
shall cease.
ARTICLE IX
MISCELLANEOUS
-------------
9.01 NOTICE. All notices, requests, demands, consents and
other communications required or permitted hereunder shall be
effective only if in writing and delivered personally or by
telecopier or mailed by certified or registered mail (return
receipt requested), postage prepaid, provided that any notice
delivered by certified or registered mail shall also be delivered
by telecopy or by hand at the time that it is mailed. If such
telecopy is sent, notices shall be deemed given on the Business
Day of confirmation of the sender's telecopy machine of receipt
at the recipient's telecopy machine (or if such confirmation is
received on a day which is not a Business Day, on the Business
Day occurring immediately thereafter). If the notice is
delivered by hand, it shall be deemed given when so delivered to
a responsible representative of the addressee. All
communications hereunder shall be delivered to the respective
parties at the following addresses (or to such other person or at
such other address for party as shall be specified by like
notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
If to the Company At its principal place of business set forth
in, or established pursuant to , Section 2.03
hereof, attention: Managing Director.
If to a Member At its address maintained in the books and records
of the Company.
Copies of any notice, request, demand, consent or other
communication sent pursuant to this Section 9.01 shall also be
sent as follows:
To Stone Container Stone Container Corporation
150 N. Michigan Avenue
Chicago, IL 60601
Attention : President
Telecopier: 312-580-4650
- -and-
To Four M Four M Corporation
115 Stevens Avenue
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Valhalla, NY 10595-1252
Attention: Chairman
Telecopier: 914-747-2774
9.02 AMENDMENTS: WAIVERS. (a) Any provision of this
Agreement (except Section 7.01) may be amended or waived if,
and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by each Member, or in
the case of a waiver, by the Member against which the waiver
is to be effective. Section 7.01 of this Agreement may not
be amended.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by laws.
9.03 GOVERNING LAW. This Agreement and any questions
concerning its interpretation and enforcement shall be governed
by the laws of the State of Delaware without regard to any
applicable principles of conflicts of law.
9.04 COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto were upon the same
instrument.
9.05 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the Members with respect to the subject
matter hereof and supersedes all prior agreements, understandings
and negotiations, written and oral, between the Members with
respect to the subject matter of this Agreement.
9.06 PUBLICITY. Except as otherwise required by law or the
rules of any national securities exchange, neither Member shall
issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the
transactions contemplated by this Agreement without the express
written prior approval of the other Member.
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9.07 CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the
construction or interpretation hereof.
IN WITNESS WHEREOF, the Members have caused this Agreement
to be duly executed by their respective authorized officers as of
the day and year first above written.
FLORIDA COAST PAPER FLORIDA COAST PAPER
HOLDING CO., L.L.C. CORPORATION
By: By:
---------------------- ----------------------
Name: Name:
Title Title:
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