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STANDARD PARKING/CENTRAL I, L.L.C.
OPERATING AGREEMENT
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THE MEMBERSHIP INTERESTS EVIDENCED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION, BUT HAVE BEEN ISSUED PURSUANT TO
EXEMPTIONS UNDER THE SECURITIES ACT OF 1933, AS AMENDED. FURTHERMORE, MEMBERSHIP
INTERESTS HAVE NOT BEEN REGISTERED WITH THE SECURITIES COMMISSIONER OF THE STATE
OF ILLINOIS OR ANY OTHER STATE. ACCORDINGLY, THE SALE, TRANSFER, PLEDGE,
HYPOTHECATION, OR OTHER DISPOSITION OF SUCH MEMBERSHIP INTEREST IS RESTRICTED
AND MAY NOT BE ACCOMPLISHED EXCEPT IN ACCORDANCE SECTION 5 AND OTHER APPLICABLE
PROVISIONS OF THIS AGREEMENT, AND AN APPLICABLE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT A REGISTRATION STATEMENT IS
UNNECESSARY.
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STANDARD PARKING/CENTRAL I, L.L.C.
OPERATING AGREEMENT
This Limited Liability Company Operating Agreement (the "Agreement")
is made as of March __, 1995, in Chicago, Illinois by and among Standard Parking
Corporation, an Illinois corporation (the "Manager"), and those parties who,
from time to time, execute this Agreement as members and are listed on attached
Schedule A. The Manager and such signatories to this Agreement are collectively
called the "Members", and each is sometimes individually called a "Member".
Agreement
NOW, THEREFORE, in consideration of the mutual promises, terms and
conditions contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Members hereby agree as follows:
1. FORMATION, PURPOSES AND DURATION
1.1. Formation and Name.
a. The Members agree to and hereby form a company pursuant to the
Limited Liability Company Act of the State of Delaware (the "State")
to be known as the "Standard Parking/Central I, L.L.C." (the
"Company").
b. The ownership interests, rights and obligations of the Members as
members in the Company shall be as provided in the Limited Liability
Company Act of the State of Delaware (the "LLC Act"), as amended
from time to time, except as provided in this Agreement. Such
ownership interests, rights and obligations of a Member are called
such Member's "Membership Interest" in this Agreement. The portion
of all the outstanding Membership Interests held by a Member is
expressed as a percentage (the "Percentage Interest") which is
listed opposite the Member's name on Schedule A.
c. The Company shall bear the expenses incident to its formation,
including, but not limited to, filing and recording fees, taxes and
legal and accounting fees incident to the formation and operation of
the Company.
1.2. Purposes of the Company. The purposes of the Company shall be:
a. to undertake any and all lawful business activity under the LLC Act;
b. To invest in, acquire, hold, maintain, improve, develop, sell,
assign, transfer, operate, lease, mortgage, exchange and otherwise
deal in real estate or personal property, or interest in real estate
or personal property, or any other venture or business or
investment;
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OPERATING AGREEMENT
c. To obtain any financing necessary to pursue such purposes; and
d. To perform any and all acts reasonably necessary to the fulfillment
of the foregoing purposes.
1.3. Principal Place of Business. The Company shall be deemed to have its
principal place of business at:
55 East Monroe
Suite 3440
Chicago, Illinois 60603
(the "Company's Office") or such other place as determined by the Manager from
time to time.
1.4. Title to Company Property. Legal title to all Company properties
shall be taken and at all times held in the name of the Company, except that any
real estate held by the Company may alternatively be held in the name of a
trustee for the Company, provided that the Company is specifically designated by
name as sole beneficiary or principal under a written trust agreement executed
by any such trustee. The manner of holding title to the Company real estate,
whether in the name of the Company or such trustee, is solely for the
convenience of the Company; all such Company real estate shall be treated as the
property of the Company subject to the terms of this Agreement; and the power to
direct any such trustee shall rest solely in the Company and shall be
exercisable solely upon the direction of the Manager.
1.5. Term. The term of the Company shall commence on the date of the
filing or the Certificate of Organization (the "Certificate") with the
appropriate authorities of the State, and, unless sooner terminated in
accordance with other provisions of this Agreement, shall end on December 31,
2045.
2. CAPITAL CONTRIBUTIONS, PERCENTAGE INTERESTS AND DISTRIBUTIONS
2.1. Initial Capital Contribution. Each Member shall contribute that
amount of cash indicated on Schedule A opposite such Member's name to the
capital of the Company.
2.2. Capital Accounts.
a. A capital account (a "Capital Account") shall be established and
maintained for each Member in accordance with the Internal Revenue
Code of 1986, as amended (the "Code"), and with regulations
promulgated thereunder by the U.S. Department of the Treasury (the
"Treasury Regulations") and shall be subject to adjustment as
provided in Section 2.2.b.
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OPERATING AGREEMENT
b. In accordance with and subject to the Treasury Regulations, the
Capital Account of each Member shall from time to time be:
(1) Increased by (i) the amount of cash and the gross asset value
of property contributed by such Member, (ii) such Member's
share of the profits of the Company, determined pursuant to
Section 5.7 for Capital Account purposes, whether or not
distributed, and (iii) the amount any Company liabilities
assumed by such Member or which are secured by any Company
Property distributed to such Member; and
(2) Decreased by (i) the amount of cash and the gross asset value
of property distributed to such Member, (ii) such Member's
share of losses of the Company, determined pursuant to Section
5.7 for Capital Account purposes, and (iii) the amount of any
liabilities of such Member assumed by the Company or which are
secured by any property contributed by such Member to the
Company.
c. Except as otherwise provided in this Agreement, whenever it becomes
necessary to ascertain the balance of any Member's Capital Account,
such a determination shall be made after giving effect to all
allocations of profits and losses of the Company for the current
year and all distributions for such year in respect of transactions
effected prior to the date as of which such determination is to be
made. No Member shall be entitled to (i) make any withdrawal from
its Capital Account or to receive any distribution from the Company,
except as expressly provided in this Agreement, or (ii) make any
additional capital contribution to the Company other than as
provided herein. No Member shall be entitled to any interest on such
Member's capital contributions to the Company.
d. Any dispute between the Members with respect to determination of
Capital Accounts or otherwise with respect to the manner or method
of accounting by the Company shall be resolved by the Company's
accountants.
e. In the event that property is distributed by the Company to a Member
(including distributions in liquidation of the Company), the Capital
Accounts of the Members shall be adjusted immediately before such
distribution, in accordance with the applicable allocation of
profits and losses, to reflect the profits or losses that would have
been realized by the Company if the distributed property had been
sold on the date of its distribution for its fair market value.
2.3. Distributions of Cash Flow. Cash flow shall be distributed in respect
of each year or portion of a year after (i) payment of all expenses, debts and
obligations of the Company then due and payable, including those due to the
Manager, and (ii) the establishment or increase of
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OPERATING AGREEMENT
any reserves established by the Manager in its sole discretion, including
reserves for anticipated operating expenses,
a. First, to the Members pro rata in accordance with any positive
balance in such Members' Capital Accounts to the extent of such
positive balances; and
b. Second, any remaining cash flow shall be distributed according to
the Members' Percentage Interests.
2.4. Time of Determination and Distribution of Cash Flow. Cash flow shall,
except as otherwise provided in this Agreement, be determined and distributed
from time to time by the Manager in its sole discretion.
3. RIGHTS AND DUTIES OF THE MANAGER
3.1. Management of Company Business. The Manager shall be solely
responsible for the management of the Company's business with all rights and
powers generally conferred by law or necessary, advisable or consistent in
connection therewith.
a. The signature of a duly authorized Officer of the Company or of the
Manager shall be required and sufficient to bind the Company. No
creditor, vendor or other persons dealing with the Company shall be
required to investigate the authority of the Manager or secure
approval or confirmation of any of the other Members.
b. The Manager shall have all rights and powers required for or
appropriate for the management of the Company's business.
3.2. Expenses. The Company shall pay all of its reasonable expenses (which
expenses may be either billed directly to the Company or reimbursed to the
Manager. The Manager may retain and pay compensation to persons or firms
rendering administrative, architectural, technical, management, leasing,
brokerage, insurance, development, accounting, legal and other services to the
Company, including, without limitation, one or more Manager or affiliates of the
Manager.
3.3. Indemnification of the Manager. The Manager shall not be liable,
responsible or accountable in damages or otherwise to the Company or to a Member
for any acts performed by them, within the scope of the authority conferred on
the Manager, provided they have acted in good faith and shall not be guilty of
willful misconduct, gross negligence or breach of fiduciary duty.
a. Except where the Manager has acted in bad faith or shall be guilty
of willful misconduct, the Company shall indemnify and hold such
Manager harmless from and against any judgments, penalties, fines,
amounts paid in settlement and any other loss, damages or expense
(including reasonable attorneys fees, court costs
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OPERATING AGREEMENT
and witness fees) incurred because of any action performed by them
on behalf of the Company in accordance with the terms hereof. In the
event of any action by a Member or the Company against the Manager,
the Company shall indemnify and hold harmless such Manager, from and
against all expenses incurred by such Manager in the defense or
settlement of such action, including reasonable attorneys' fees that
may be paid or incurred, if the indemnified party is not liable as a
result of his, her or its own bad faith, willful misconduct, gross
negligence or breach of his, her or its fiduciary duty, provided
that: (i) no indemnification shall be made in respect of any claim,
issue or matter as to which such Person shall have been adjudged to
be liable under such standards unless and only to the extent that
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such Person is fairly and
reasonably entitled to indemnity of such expenses that such court
shall deem proper; and (ii) to the extent that such Person has been
successful on the merits or otherwise in defense of any such action,
or in defense of any claim, issue or matter therein, such Person
shall be indemnified by the Company against expenses, including
reasonable attorneys' fees, actually and reasonably incurred by such
person in connection therewith. Expenses incurred by the Manager in
defending any action, suit or proceeding shall be paid or reimbursed
by the Company promptly upon receipt from such Manager of an
undertaking on its part to repay such expenses if it shall
ultimately be determined that it is not entitled to be indemnified.
b. If any counsel shall be retained to represent the Manager at Company
expense under this Section with respect to any claim by a third
party; and if the same claim shall be made against a Member, then,
the Member shall request of the Manager that such counsel, at
Company expense, represent the interests of such Member with respect
to such claim to the extent such counsel shall determine it can do
so without conflict of interest, and the Member shall not be
entitled to reimbursement for any counsel fees charged by counsel
retained by such Member for representation that shall duplicate
representation available from the Manager's counsel. A Member shall
be entitled to reimbursement from the Company for counsel fees
incurred for representation that the Manager's counsel shall have
refused to supply, provided that such Member has made a request to
the Manager for legal representation and is otherwise entitled to
reimbursement of such fees under the provisions of this Section.
c. Notwithstanding the foregoing provisions, (i) no person shall be
entitled to any indemnity with respect to any matters as to which
such person shall have acted in bad faith and shall have been
adjudicated guilty of willful misconduct, gross negligence or breach
of his, her or its fiduciary duties; and (ii) any indemnity under
this Section shall be provided out of and to the extent of Company
assets only, and no Member shall have any personal liability on
account thereof. The
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OPERATING AGREEMENT
foregoing provisions shall not be construed to require any Member to
contribute any additional capital to the Company, and the sole
recourse for any such indemnity shall be limited to the assets of
the Company, at any time, and from time to time.
d. The indemnification provisions of this Agreement are not intended to
be for the benefit of any creditor or other person (other than the
Manager in its capacity as the Manager and other than any person
acting in his or her capacity as a Delegatee) to whom any debts,
liabilities, or obligations are owed by (or who otherwise has any
claim against) the Company or any of the Members; and no such
provisions shall create any right or remedy enforceable by such
creditor or other person against the Company or any of the Members.
For the purposes of this Section, any Delegatee shall have the same
rights to indemnification as the Manager.
e. The Manager shall not be liable to the Members because any taxing
authorities disallow or adjust income, deduction or credits in the
Company tax returns. Furthermore, the Manager shall not have any
liability for the repayment of the capital contributions or loans of
the Members.
3.4. Other Business Activities; Disclosure; Waiver.
a. Any Member, Manager or any officer, director, employee, partner,
shareholder, member or other person holding legal or beneficial
interest in any entity which is a Member or Manager, may engage in
or possess an interest in other business ventures of every nature
and description, including business ventures which compete with the
Company, independently or with others, and neither the Company nor
the Members shall have any right by virtue of this Agreement in or
to such independent ventures or to the income or profits derived
therefrom.
b. If a business in which a Member has an interest, or in which an
affiliate of a Member has an interest, proposes to transact business
with the Company, then such Member shall give notice to the Manager
of its interest or the interest of its affiliate and business may be
conducted with such entity upon terms approved by the Manager.
4. OFFICERS
4.1. Appointment of Officers. The Manager may select such Officers as it
deems necessary or desirable for the effective management of the Company and the
pursuit of the Company's business. Manager hereby appoints those persons
designated in Section 4.11 to the offices set forth after their names.
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OPERATING AGREEMENT
4.2. Number. The Officers of the Company may be a President, one or more
Vice-Presidents (the number thereof to be determined by the Manager), a
Secretary, and a Treasurer, and such Assistant Secretaries, Assistant Treasurers
or other Officers as may be appointed by the Manager. Any two or more offices
may be held by the same Person. All Officers and agents of the Company shall
have such express authority and perform such duties in the management of the
property and affairs of the Company as may be provided herein, or as may be
determined by resolution of the Manager not inconsistent with this Agreement,
and such implied authority as is recognized by the common law from time to time.
4.3. Appointment and Term of Office. The initial Officers of the Company
are designated in Section 4.11, and otherwise the Officers of the Company shall
be appointed by the Manager by written action taken and/or meetings held for
such purpose. The Manager may create and fill new offices from time to time. An
Officer shall hold office until his or her successor shall have been duly
appointed and shall have qualified, until his or her death or until he or she
shall resign or shall have been removed in the manner hereinafter provided.
Election or appointment of an Officer or agent shall not of itself create
contract rights.
4.4. Removal. Any Officer or agent may be removed by the Manager whenever
in its judgment the best interests of the Company would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
Person so removed.
4.5. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or otherwise, or because of the creation of an
office, may be filled by the Manager for the unexpired portion of the term.
4.6. The President. The President shall be the principal executive Officer
of the Company and, subject to the control of the Manager, shall in general
supervise and control all of the business and affairs of the Company. He or she
may sign, with the Secretary or any other Officer of the Company thereunto
authorized by the Manager, contracts or other instruments which the Manager has
authorized to be executed on behalf of the Company, except in cases where the
signing and execution thereof shall be expressly delegated by the Manager or by
this Agreement to some other Officer or agent of the Company or to the President
alone, or shall be required by law to be otherwise signed or executed; and in
general shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Manager from time to time.
4.7. The Vice-Presidents. In the absence of the President or in the event
of his or her inability or refusal to act, the Vice-President (or in the event
there be more than one Vice-President, the Vice-Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice-President may perform such other duties as from time to time
may be assigned to him or her by the President or by the Manager.
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OPERATING AGREEMENT
4.8. The Secretary. The Secretary shall: (a) keep, or supervise and be
responsible for the keeping of, the minutes and records of all meetings and
official actions of the Members and of the Manager, and any committees of the
Manager in one or more books provided for that purpose; (b) see that all notices
of such meetings are duly given or waivers of notice obtained in accordance with
the provisions of this Agreement or as required by law; (c) be custodian of the
Company records; (d) keep a register of the post office address of each Member
which shall be furnished to the Secretary by such Member; (e) have the authority
to certify this Agreement, resolutions of the Manager and committees thereof,
and other documents of the Company as true and correct copies thereof; and (f)
in general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the President or by
the Manager.
4.9. Assistant Secretaries. The Assistant Secretaries, in general, shall
perform such duties and exercise such authority as shall be assigned or granted
to them by the President or by the Manager.
4.10. Compensation. Except as otherwise provided in any written employment
agreement duly executed on behalf of the Company and except as otherwise set
forth below, the compensation (including salaries and benefits) of the Officers
shall be fixed from time to time by resolution of the Manager and no Officer
shall be prevented from receiving such compensation by reason of the fact that
he or she is also the Manager of the Company.
4.11. Identity of Officers. The initial Officers of the Company shall be
as follows:
a. Myron C. Warshauer shall be the President.
b. Michael K. Wolf shall be a Senior Vice President and the Secretary.
c. Allan Lombardo shall be the Executive Vice President.
d. Steven A. Warshauer shall be a Senior Vice President.
e. Michael E. Swartz shall be a Senior Vice President.
f. James A. Wilhelm shall be a Senior Vice President.
5. ACCOUNTING AND TAXES
5.1. Books and Records.
a. At all times during the term hereof, the Manager shall use its best
efforts to cause accurate books and records of account to be
maintained in which are to be entered all matters relating to the
business and operations of the Company, including all income,
expenditures, assets and liabilities thereof.
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OPERATING AGREEMENT
b. Each Member is entitled to any information reasonably necessary for
the Member for the preparation of such Member's federal or state tax
returns.
5.2. Rights of Inspection. Each Member and/or its authorized
representatives shall have the right to inspect, examine and copy (at such
Member's expense) the books, records, files, securities and other documents of
the Company during the regular business hours of the Company upon giving
reasonable notice and stating reasonable cause therefore.
5.3. Fiscal Year. The fiscal year of the Company shall end on December 31
of each year.
5.4. Accounts. The Manager may deposit Company funds in such bank or
investment accounts as they select in its sole discretion. The Manager shall be
an authorized signatory on such accounts.
5.5. Other Accounting Decisions. All accounting decisions for the Company
(other than those specifically provided for in any other Section of this
Agreement) shall be made by the Manager.
5.6. Preparation of Tax Returns. Upon being provided by the Members with
all information required for their preparation, the Manager or its agents shall,
on behalf of the Company, use its best efforts to cause all federal, state and
local income tax returns of the Company to be prepared. The Manager will use its
best efforts to cause copies of all tax returns of the Company to be made
available for review by the Members at least twenty days prior to the statutory
date for filing, including extensions thereof, if any.
5.7. Allocations to Members.
a. Subject to Sections 5.7.b and 5.7.c, all items of income, gain,
profits, losses, credits and deductions of the Company shall be
allocated to the Members in proportion to the Members' Percentage
Interests.
b. Solely for federal, state, and local income tax purposes and not for
book or Capital Account purposes, except to the extent required by
Treasury Regulations, depreciation, amortization, gain, or loss with
respect to property that is properly reflected on the Company's
books at a value that differs from its adjusted basis for federal
income tax purposes shall be allocated in accordance with the
principles and requirements of Section 704(c) of the Code and the
Treasury Regulations promulgated thereunder, and in accordance with
the requirements of the relevant provisions of the Treasury
Regulations issued under Code Section 704(b). For Capital Account
purposes, depreciation, amortization, gain, or loss with respect to
property that is properly reflected on the Company's books at a
value that differs from its adjusted basis for tax purposes shall be
determined in accordance with the rules of Treasury Regulation
Section 1.704-1 (b)(2)(iv)(g).
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OPERATING AGREEMENT
c. To the extent required to give the foregoing allocations effect for
federal income tax purposes, the requirements of Treasury
Regulations Sections 1.704(b)(2)(ii)(d) and 1.704-2 are incorporated
herein by reference, and this Agreement shall be construed as having
any provisions necessary to satisfy such requirements.
d. Allocations with Respect to Transferred Membership Interests.
In the event of a Transfer (as defined in Section 6, below) of a
Member's Membership Interest or any portion thereof, the Member's
items of profits and losses shall be allocated between the
Transferor (as defined herein) and the Transferee (as defined
herein) in the ratio of the number of days in the fiscal year of the
Company before and after the effective date of the Transfer.
5.8. Tax Decisions Not Specified. Tax decisions and elections for the
Company not provided for herein shall be made in the discretion of the Manager.
5.9. Tax Matters Member. The Manager named first in the Articles will be
the tax matters partner (the "Tax Matters Partner") for purposes of Sections
6221-6231 of the Code and the Treasury Regulations. The Tax Matters Partner
agrees to use its best efforts to comply in good faith with all provisions of
the Code concerning a tax matters partner and to take all actions necessary to
make each Member a notice partner under the Code. The Tax Matters Partner will
use its best efforts to give each Member copies of all notices or other material
communications delivered to or by it with respect to federal, state or local tax
matters, negotiations, decisions, settlements or other events. The Tax Matters
Partner may choose the forum in which to pursue any litigation without the
consent of the Members.
6. SALE OR TRANSFER
6.1. General. Except as provided in Section 6.4.c, below, no Member shall
(i) sell, assign, transfer, convey, give, mortgage, pledge, charge or otherwise
encumber (collectively, "Transfer"), all or any part of its Membership Interest,
or (ii) contract to Transfer all or any part of its Membership Interest, or
(iii) suffer or permit the Transfer of all or any part of its Membership
Interest whether voluntarily or by operation of law, without in each instance
obtaining the prior written consent of the Manager, which consent may be
withheld in the sole discretion of the Manager. Any attempt to Transfer a
Membership Interest without the required consent shall be void. The giving of
consent in connection with one or more Transfers shall not limit or waive the
need for such consent in connection with any other Transfers.
6.2. Securities Law Limitations. Notwithstanding anything in this
Agreement, no Membership Interests may be Transferred except as permitted under
the Securities Act of 1933, as amended, and applicable state securities laws or
exemption therefrom.
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OPERATING AGREEMENT
6.3. Agreement with Transferees. In the event that, pursuant to the
provisions of this Section 6 and with any required prior written consent of the
Manager, any Member (a "Transferor") shall Transfer its Membership Interest to
any person or entity (a "Transferee"), no such Transfer shall be made or shall
be effective to make such Transferee a Member or entitle such Transferee to any
benefits or rights hereunder until the proposed Transferee agrees in writing to
(i) assume and be bound by all of the terms and provisions of this Agreement and
all of the obligations of the Transferor, and (ii) be subject to all the
restrictions to which the Transferor is subject under the terms of this
Agreement and any further agreements with respect to the Facility or as
contemplated by this Agreement to which the Transferor is then subject or is
then required to be a party.
6.4. Transfer by Reason of Death and Other Events.
a. If, as a result of a Member's death, divorce, bankruptcy, or, in the
case of a non-natural person, dissolution, termination, liquidation
or distribution, a Membership Interest or a portion thereof is
Transferred, without consideration to the estate of the Transferor,
to or in trust substantially for the benefit of lineal descendants
of the Transferor or to the Transferor's grantor or controlling
owner, the Transferee shall not become a Member as a result of such
Transfer without the consent of the Manager, except as provided in
Section 6.4.c, below.
b. If the Company does not dissolve as a result of a Transfer by reason
of an election of the remaining Members to continue the Company (or
because the Transfer is not a cause of dissolution described in
Section 7.1) but the Manager does not consent to the Transferee
becoming a Member, the Transferee of a Transfer described in Section
6.4.a shall have the right to receive a payment of cash, by means of
a promissory note of the Company and/or the distribution of an
undivided interest in the property of the Company the sum of the
values of which shall not exceed the Transferor's rights in
liquidation of the Transferor's Membership Interest under Section
7.3 determined as of the date of the Transfer.
c. Sections 6.4.a, and 6.4.b notwithstanding, if the Transferee to whom
the Withdrawing Transferor's Membership Interest is being
Transferred pursuant to an event described in Section 6.4.a is
already a Member, consent of the Manager shall not be required for
the Transfer to be effective.
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OPERATING AGREEMENT
7. DISSOLUTION
7.1. Causes of Dissolution.
The Company shall be dissolved only in the event:
a. Of the death, removal, liquidation, dissolution, withdrawal or
bankruptcy of any Member;
b. That all or substantially all of the Company's non-cash property is
sold or otherwise transferred to any person which is not controlled
by the Company;
c. That the Members mutually agree to terminate the Company;
d. That the Company by its terms, as set forth in this Agreement, is
terminated;
e. That there is a general assignment of the assets of the Company for
the benefit of its creditors, or the adjudication of the Company as
bankrupt; or
f. That the Company is dissolved by operation of law.
7.2. Procedure in Dissolution and Liquidation.
a. Upon dissolution of the Company pursuant to Section 7.1, unless the
Company is reconstituted under Section 9.2, the Manager shall
proceed with reasonable promptness to wind up the affairs of and
liquidate the business of the Company.
b. During the period of the winding up of the affairs of the Company,
the rights and obligations of the Manager set forth herein with
respect to the management of the Company shall continue.
c. The assets of the Company shall be applied or distributed in
liquidation in the following order of priority:
(1) In payment of debts and obligations of the Company;
(2) To the Members in payment of their respective outstanding
Capital Accounts; and
(3) Any excess to the Members in proportion to their Percentage
Interests.
7.3. Liquidation of a Membership Interest. A distribution in respect of
the liquidation of a Member's Membership Interest shall be in the same amount as
would have been distributed to such Member had the Company liquidated at the
time of the liquidation of the Membership Interest. Payment of such liquidation
amount shall be made in cash, a promissory note of the
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OPERATING AGREEMENT
Company and/or an undivided interest in the property of the Company, in the
Manager's sole discretion.
8. MEMBERS
8.1. Limitation on Members' Liabilities. A Member, including the Manager,
shall not be bound by, or be personally liable for, the expenses, liabilities or
obligations of the Company or the Manager, and the liability of each Member
shall be limited solely to the amount of such Member's contribution to the
capital of the Company required under the provisions of Section 2 hereof, except
as required by the laws of the State,
8.2. No Control of Business or Right to Act for Company. Other than the
Manager, a Member shall take no part in the management, conduct or control of
the business of the Company and shall have no right or authority to act for or
to bind the Company.
9. WITHDRAWAL OR DEATH OF THE MANAGER
9.1. Withdrawal by the Manager. The Manager may upon thirty (30) days
notice to the Members withdraw as manager of the Company.
9.2. Reconstitution of Company After Withdrawal or Death of the Manager.
Upon the withdrawal, liquidation, dissolution or bankruptcy of the Manager or
other event causing a dissolution under Section 7.1.a, the remaining Members
(not including for such purposes the estate of a deceased Manager or any
Transferee who has not satisfied the requirements of Section 6 to become a
Member) shall have the right to elect to continue the business of the Company,
in a reconstituted form if necessary, if, within 90 days after the withdrawal of
the Manager, all Members agree in writing to continue the business of the
Company and to the appointment of one or more additional managers, if necessary.
The exercise of the rights of reconstitution granted in this Section 9 shall not
in any way constitute any Member a manager or impose any personal liability on
any Member. Immediately upon the agreement of all Members to continue the
business, the Members, and/or any successor Manager shall prepare, execute, and
file for recordation of new Articles of Organization, or an amendment thereto,
if required, and shall take or cause to be taken all steps required in
connection with the continuation of the business in accordance with the
applicable laws of the State.
9.3. Accounting. If the withdrawal or other terminating event of the
Manager does not result in the dissolution and winding up of the Company's
business because such business is being continued in a reconstituted form as
provided above, the Members, and/or the successor Manager shall promptly have an
accounting prepared by the auditors of the Company covering the transactions of
the Company from the end of the immediately preceding fiscal year through the
date of such withdrawal, death or other terminating event.
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OPERATING AGREEMENT
10. GENERAL PROVISIONS
10.1. Entire Agreement. This Agreement constitutes the entire agreement
among the Members and supersedes all agreements, representations, warranties,
statements, promises and understandings, whether oral or written, with respect
to the subject matter hereof. None of the Members shall be bound by nor charged
with any oral or written agreements, representations, warranties, statements,
promises or understandings not specifically set forth in this Agreement or the
exhibits and schedules hereto.
10.2. Notices.
a. Any and all notices, requests, demands, elections and other
communications (collectively "Communications" and each separately a
"Communication") given in connection with this Agreement shall be
effective and deemed adequately delivered (a "Deemed Delivery") only
if delivered in writing to the Member for whom such Communications
are intended (the "Recipient") and such Deemed Delivery shall be
deemed to occur on the earlier of (a) the date it shall be delivered
to the address of the Recipient on the records of the Company (the
"Recipient's Address"), (b) the date delivery shall have been
refused at the Recipient's Address, (c) with respect to a notice
sent by mail, the date as of which the postal service shall have
indicated such notice to be undeliverable at the Recipient's Address
or (d) with respect to a notice sent by facsimile to the facsimile
number required by this Agreement and in respect of which a
facsimile receipt confirmation statement is printed, (i) the next
business day after receipt, if the notice is sent at or after five
(5) p.m. in the time zone of the Recipient, or (ii) the day of
receipt if the notice is sent before five (5) p.m. in the time zone
of the Recipient. The addresses and facsimile numbers required by
this Agreement, unless changed pursuant to Section 10.2.b, are:
(1) To the Company or the Manager:
55 East Monroe
Suite 3440
Chicago, Illinois 60603
Facsimile: (312) 621-3354
Attn: Myron C. Warshauer
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OPERATING AGREEMENT
with a copy in each case to:
Sachnoff & Weaver, Ltd.
30 South Wacker Drive
29th Floor
Chicago, Illinois 60606
Facsimile: (312) 207-6400
Attn: Stewart Dolin
(2) To the remaining Members, at the addresses or facsimile
numbers listed on Schedule A.
b. By giving to the Company at least ten (10) days' written notice
thereof, the Members and their respective Transferees shall have the
right from time to time and at any time during the term of this
Agreement to change their respective addressee, address and/or
facsimile number for notices, and each shall have the right to
specify as its address and/or facsimile number for notices any other
address and/or facsimile number within the United States of America.
10.3. Validity. In the event that any provision of this Agreement shall be
held to be invalid or unenforceable, the same shall not affect in any respect
whatsoever the validity or enforceability of the remainder of this Agreement.
10.4. Attorneys' Fees. Should any litigation be commenced by the Company
against any Member or between by any Member or Members against the Company or
the Manager concerning any provision of this Agreement or the rights and duties
of any person or entity in relation thereto, the party or parties prevailing in
such litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and for its or their attorneys' fees and court
costs in such litigation which shall be determined by the court in such
litigation or in a separate action brought for that purpose.
10.5. Survival of Rights. Except as provided herein to the contrary, this
Agreement shall be binding upon and inure to the benefit of the Members
signatory hereto, and their respective permitted successors and assigns.
10.6. Governing Law. This Agreement has been entered into in the State and
all questions with respect to this Agreement and the rights and liabilities of
the parties hereto shall be governed by the internal laws of the State.
10.7. Submission to Jurisdiction, etc. The Members hereby irrevocably
submit to the jurisdiction of any state or federal court sitting in the State of
Illinois in connection with any action or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby and waive irrevocably
any objection to venue or objections in the nature of forum non
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OPERATING AGREEMENT
conveniens that they may have. The venue for any action to enforce or construe
this Agreement shall be Cook County, Illinois.
10.8. No Partition. No Member shall have the right to, and each Member
hereby covenants that it will not, withdraw from the Company, bring any action
to partition any Company property nor dissolve, terminate or liquidate, or
petition a court for the dissolution, termination, or liquidation of the
Company, except as provided in this Agreement, and no Member at any time shall
have the right to petition or to take any action to subject any Company assets
or any part thereof to the authority of any court of bankruptcy, insolvency,
receivership or similar proceeding, unless there is unanimous consent of the
Members.
10.9. Waiver. No consent or waiver, express or implied, by a Member to or
of any breach or default by another Member in the performance by such other
Member of its obligations hereunder shall be deemed or construed to be a consent
or waiver to or of any other breach or default in the performance by such other
Member of the same or any other obligations of such other Member hereunder.
10.10. Remedies Not Exclusive. The rights and remedies of the Members and
the Company hereunder shall not be mutually exclusive, i.e., the exercise of one
or more of the provisions hereof shall not preclude the exercise of any other
provisions hereof. Each of the Members confirms that damages at law will be an
inadequate remedy for a breach or threatened breach of this Agreement and agrees
that, in the event of a breach or threatened breach of any provision hereof, the
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction or other equitable remedy, but nothing herein contained
is intended to, nor shall it, limit or affect any rights at law or by statute or
otherwise of any Member aggrieved as against the other for a breach or
threatened breach of any provision hereof, it being the intention of this
Section to make clear the agreement of the Members that the respective rights
and obligations of the Members hereunder shall be enforceable in equity as at
law or otherwise.
10.11. Construction. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; and the singular shall include the plural and vice versa. Titles of
Sections and Subsections are for convenience only, and neither limit nor amplify
the provisions of this Agreement itself. References to Sections or Subsections
shall refer to Sections or Subsections of this Agreement, unless otherwise
indicated. The use herein of the word "including," when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not non-limiting language (such
as "without limitation," or "but not limited to," or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that could reasonably fall within the broadest possible scope
of such general statement, term or matter. For the purposes of this Agreement,
"and/or" means one or the other or both, or anyone or more or all, of the things
or persons in connection with which the conjunction is used.
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OPERATING AGREEMENT
10.12. Incorporation by Reference. Any exhibits or schedules referred to
herein are those attached to this Agreement and shall be deemed to be
incorporated as a part of this Agreement.
10.13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
10.14. Further Assurances. Each party hereto agrees to do all acts and
things, and to make, execute and deliver such written instruments, as shall from
time to time be reasonably required to carry out the terms and provisions of
this Agreement.
10.15. No Third Party Rights. This Agreement shall not (directly,
indirectly, contin-gently or otherwise) confer or be construed as conferring any
rights or benefits on any person or entity that is not a named Member or a
permitted Transferee of a Member hereunder.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
stated above.
Standard Parking Corporation, Member Standard Parking, L.P., Member
and Manager
By: Standard Parking Corporation, its
General Partner
By: /s/ Myron C. Warshauer By: /s/ Myron C. Warshauer
------------------------- --------------------------
Its: President Its: President
------------------------- --------------------------
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OPERATING AGREEMENT
SCHEDULE A
MEMBERS
THIS SCHEDULE MAY BE AMENDED FROM TIME TO TIME WITHOUT THE CONSENT OF THE
MEMBERS TO REFLECT THE ADDITION OF NEW MEMBERS, THE ISSUANCE OF NEW
INTERESTS, THE SALE OR EXCHANGE OF INTERESTS, OR OTHER SHIFTS OF
MEMBERSHIP INTERESTS PURSUANT TO THE AGREEMENT OR A CHANGE OF ADDRESS OR
FACSIMILE NUMBER OF A MEMBER FOR WHICH NOTICE WAS GIVEN TO THE COMPANY
PURSUANT TO THIS AGREEMENT.
Facsimile Initial Percentage
Name and Address Number Capital Contribution Interest
- ---------------- ------ -------------------- --------
Standard Parking (312) 621-3354 $ 200.00 1%
Corporation
55 East Monroe
Suite 3440
Chicago, Illinois 60603
Standard Parking, L.P (312) 621-3354 $19,800.00 99%
55 East Monroe.
Suite 3440
Chicago, Illinois 60603
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