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EXHIBIT 3.137A
AMENDMENT NO. 1
TO THE OPERATING AGREEMENT
FOR TRIUMPH OUTDOOR HOLDINGS, LLC
Pursuant to Section 12.4(b) of the Operating Agreement for Triumph
Outdoor Holdings, LLC, dated April 22, 1998 (the "Agreement"), the undersigned,
being the Manager of Triumph Outdoor Holdings, LLC, a Delaware limited
liability company (the "Company"), hereby amends the Agreement to reflect (i)
the admission of Gary Young as a new Member for an investment of $500,000 and
(ii) the additional Capital Contribution of $8,300,000 by Triumph Municipal
Outdoor, LLC ("Triumph Municipal") pursuant to Section 4.3(b) of the Agreement.
The Agreement is amended as follows:
Section 1. Exhibit A of the Agreement is hereby amended as attached
hereto by adding thereto the name "Gary Young" and his Capital Interest of
"3.03%" and amending the Capital Interests to reflect the $8,300,000 Capital
Contribution by Triumph Municipal.
Section 2. Exhibit B of the Agreement is hereby amended as attached
hereto by adding thereto the name "Gary Young" and his Capital Contribution of
$500,000 and amending the Capital Contributions to reflect the $8,300,000
Capital Contribution by Triumph Municipal.
Section 3. Exhibit C of the Agreement is hereby amended as attached
hereto to reflect the revised Members Percentage Interest.
Section 4. This Amendment and the rights and obligations of the
parties hereunder shall be governed by and construed and interpreted in
accordance with the substantive laws of the State of Delaware, without regard
to its conflict of laws principles.
Section 5. This Amendment shall be binding upon the successors,
assigns, heirs, executors and administrators of the parties hereto.
Section 6. This Amendment may be executed in a number of counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same amendments.
IN WITNESS WHEREOF, the party hereto has executed this Amendment as of
August 5, 1998.
TRIUMPH MUNICIPAL OUTDOOR, LLC
By: /s/ BRUCE A. FRIEDMAN
---------------------------
Bruce A. Friedman
Principal Manager
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CONSENT
The undersigned, as Manager of Triumph Outdoor Holdings, LLC (the
"Company"), hereby consents, pursuant to Section 8.1 of the Operating
Agreement, to the admission of Gary Young as a Member of the Company. The
Manager hereby agrees to amend the Operating Agreement to reflect the admission
of Gary Young as a Member of the Company, and to reflect Gary Young's Capital
Contribution of $500,000 and his Percentage Interest of 3.03%, as of August 5,
1998.
TRIUMPH MUNICIPAL OUTDOOR, LLC
By: /s/ BRUCE A. FRIEDMAN
------------------------------------
Bruce A. Friedman, Principal Manager
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TRIUMPH OUTDOOR HOLDINGS, LLC
JOINDER AGREEMENT
The undersigned, Gary Young, hereby acknowledges receipt of the
Operating Agreement (the "Operating Agreement"), dated April 22, 1998, by and
among Triumph Outdoor Holdings, LLC and the Members thereof, a copy of which
has previously been provided, and hereby agrees to be bound by all of the terms
and provisions of the Operating Agreement as a Member.
IN WITNESS WHEREOF, the undersigned has executed this acknowledgment
as of August 5, 1998.
/s/ GARY YOUNG
-----------------------------
Gary Young
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TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS
Definitions ...............................................................6
ARTICLE II - ORGANIZATION AND TERM
Section 2.1 - Formation ..................................................10
Section 2.2 - Further Documentation ......................................10
Section 2.3 - Term .......................................................11
Section 2.4 - Registered Agent and Office . ..............................11
Section 2.5 - Principal Place of Business ................................11
ARTICLE III - PURPOSE AND POWERS OF THE COMPANY
Section 3.1 - Purpose .................................. .................11
Section 3.2 - Powers of the Company ......................................11
Section 3.3 - Tax Status of Company ......................................12
ARTICLE IV - MEMBER'S CAPITAL CONTRIBUTIONS AND INTERESTS
Section 4.1 - Capital Contributions ......................................12
Section 4.2 - Percentage Interests .......................................12
Section 4.3 - Additional Contributions ...................................12
Section 4.4 - Withdrawals and Interest ...................................13
Section 4.5 - Return of Capital ..........................................13
Section 4.6 - Capital Accounts ...........................................13
Section 4.7 - Liability ..................................................15
ARTICLE V - MANAGEMENT OF THE COMPANY
Section 5.1 - Management .................................................16
Section 5.2 - Indemnity ..................................................18
Section 5.3 - Reliance and Authority of Manager ..........................18
Section 5.4 - Service Fees ...............................................18
Section 5.5 - Limitation on Compensation of Manager or
Affiliate Thereof ..........................................18
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ARTICLE VI - ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 - Allocations of Net Profit and Net Loss
(a) Net Profit ........................................................19
(b) Net Loss ..........................................................19
(c) Special Rules Regarding Allocations ...............................20
Section 6.2 - Distributions ..............................................22
Section 6.3 - Limitation Upon Distributions ..............................23
ARTICLE VII - TRANSFERABILITY
Section 7.1 - Restrictions on Transferability ............................24
Section 7.2 - Tag-Along Rights ...........................................24
Section 7.3 - Drag Along Rights ..........................................25
Section 7.4 - Estate Planning Transfers ..................................26
section 7.5 - Permitted Transfers ........................................27
ARTICLE VIII - ADDITIONAL AND SUBSTITUTE MEMBERS
Section 8.1 - Admission of New Members ...................................27
Section 8.2 - Allocations to New Members .................................27
ARTICLE IX - DISSOLUTION AND TERMINATION
Section 9.1 - Dissolution ................................................27
Section 9.2 - Distribution of Assets Upon Dissolution ....................28
Section 9.3 - Winding Up .................................................28
Section 9.4 - Articles of Dissolution ....................................28
ARTICLE X - FINANCIAL STATEMENTS, BOOK RECORDS AND
TAX RETURNS
Section 10.1 - Books of Account ..........................................29
Section 10.2 - Financial Statements and Reports ..........................29
Section 10.3 - Returns and Other Elections ...............................29
Section 10.4 - Election under Section 754 of the Code ....................30
Section 10.5 - Tax Matters Member ........................................30
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ARTICLE XI - REPRESENTATIONS AND WARRANTIES
Section 11.1 - The Members' Representations ..............................31
Section 11.2 - Survival ..................................................31
ARTICLE XII - MISCELLANEOUS
Section 12.1 - Notices ...................................................32
Section 12.2 - Complete Agreement ........................................33
Section 12.3 - Amendment by Members ......................................34
Section 12.4 - Amendment by Manager ......................................34
Section 12.5 - Amendment of Certificate ..................................34
Section 12.6 - Severability ..............................................34
Section 12.7 - Ratification ..............................................35
Section 12.8 - Binding Upon Successors ...................................35
Section 12.9 - Rights of Third Parties ...................................35
Section 12.10 - Governing Law ............................................35
Section 12.11 - Captions .................................................35
Section 12.12 - Counterparts .............................................36
Section 12.13 - Tense and Gender of Words ................................36
Section 12.14 - Power of Attorney ........................................36
Section 12.15 - Remedies Cumulative ......................................36
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EXHIBITS
Exhibit A - List of Members and their Capital Interests
Exhibit B - Members Capital Contributions and Capital Interests
Exhibit C - Members' Percentage Interests
Exhibit D - Hazel Option Agreement
Exhibit E - Services Agreement
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OPERATING AGREEMENT
AGREEMENT made as of this 22nd day of April, 1998 by and among the
individuals and/or entities set forth on Exhibit A attached hereto and made a
part hereof (hereinafter, individually or collectively, are referred to as a
"MEMBER" or "MEMBERS" respectively). The terms "Member" or "Members" shall also
be deemed to include any Additional Member.
W I T N E S S E T H:
WHEREAS, the Members desire to form a limited liability company
pursuant to the Delaware Limited Liability Company Act (the "ACT");
WHEREAS, the Members hereto desire to adopt this Operating Agreement;
WHEREAS, by execution hereof, each Member represents that it has
sufficient right and authority to execute this Operating Agreement and is not
acting on behalf of any undisclosed or partially disclosed principal.
NOW, THEREFORE, in consideration of ten ($10) dollars and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows effective as of the date
first written above.
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings:
"ADDITIONAL MEMBER" means any Person that is admitted as a Member of
the Company pursuant to this Agreement, other than the parties hereto.
"AFFILIATE" means with respect to any Person (the "Subject Person"),
(i) any other Person that directly or indirectly controls or is controlled by
or is under common control with the Subject Person, with control being deemed
for these purposes to exist when a Person owns or controls directly
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or indirectly, through one or more intermediaries, 10% or more of the
outstanding voting securities of, or other ownership interests in another
Person, (ii) any other Person in which the Subject Person (or any Affiliate of
the Subject Person under the terms hereof), directly or indirectly through one
or more intermediaries, is a general partner, a joint venturer, an officer or
director, a manager or otherwise acts in a similar capacity, (iii) any officer,
director, partner or Person acting in a similar capacity for the Subject
Person, (iv) any other Person who is an officer, director or partner or acts in
a similar capacity for any corporation, limited liability company, partnership
or other entity for which the Subject Person acts in the same or similar
capacity, and (v) a spouse, child, parent, sibling or lineal descendant of the
Subject Person (a "FAMILY MEMBER" or "FAMILY MEMBERS"), as well as any trust
for the benefit of, and the estate of, the Subject Person or any Family Member.
"AGREEMENT" means this Operating Agreement as originally executed and
as amended, modified, supplemented or restated from time to time, as the
context requires.
"CAPITAL ACCOUNT" shall mean the accounts maintained for each Member
as set forth in Section 4.6.
"CAPITAL CONTRIBUTION" means a contribution to the capital of the
Company made pursuant to the provisions of Sections 4.1 and 4.3.
"CAPITAL INTEREST" means, for each Member, the percentage equal to the
quotient of such Member's Capital Contributions made pursuant to Sections 4.1
and 4.3, divided by the aggregate Capital Contributions theretofore made by all
then existing Members. The Members' Capital Interests are set forth on Exhibit
A.
"CERTIFICATE" means the Certificate of Formation of the Company as
filed in the Office of the Delaware Secretary of State, as the same may be
amended from time to time.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"COMPANY" means Triumph Outdoor Holdings, LLC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"HAZEL" means Patrick K. Hazel.
"HAZEL OPTION AGREEMENT" means that certain agreement between the
Company and Hazel, a form of which is attached hereto as Exhibit D.
"INTEREST" means for any Member its entire interest in the Company
(including, but not limited to, its Capital Interest and its Percentage
Interest).
"MANAGER" means Triumph Municipal Outdoor, LLC.
"MEMBER" or "MEMBERS" means, individually or collectively, those
Persons set forth on Exhibit A attached hereto that have executed this
Agreement, and any Additional Member.
"MEMBER'S ACCOUNT" means the Capital Account maintained for each
Member.
"NET CASH FLOW" means the gross receipts and other miscellaneous
revenue derived from Company operations less all cash operating expenses of the
Company including, without limitation, (i) debt service on any Company loans,
(ii) entity level taxes and other fees incurred in connection with the
operation of the Company, and (iii) increases, if any, in reserves reasonably
established by the Manager from time to time for working capital and other
Company purposes.
"NET PROFIT" and "NET LOSS" means the net income (including items of
income exempt from tax) and net loss (including expenditures that can neither
be capitalized nor deducted), respectively, of the Company, determined in
accordance with the method of accounting used by the Company for federal income
tax purposes (and as further adjusted pursuant to Section 4.6(c)).
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"PERCENTAGE INTEREST" means, with respect to any Member, the
percentage set forth opposite its name on Exhibit C attached hereto, as may be
adjusted from time to time.
"PERSON" means any individual, estate, corporation, trust, joint
venture, partnership or limited liability company of every kind and nature, and
any other individual or entity in its own or any representative capacity.
"PLAN" means an employee benefit plan, as defined in Section 3(3) of
ERISA, or a plan as defined in Section 4975(e)(2) of the Code, and includes,
without limitation, any trust or separate account established in connection
therewith.
"PROPERTY" means all real, personal and mixed properties, cash,
assets, interests and rights of any type owned by the Company. All assets
acquired with Company funds or in exchange for Property shall be Property.
"SERVICES AGREEMENT" means that certain services agreement between the
Company and Triumph Holdings, LLC, a copy of which is attached hereto as
Exhibit E.
"SUBSIDIARY" means any Person in which the Company owns directly or
indirectly a greater than fifty percent (50%) interest or any pass-through
entity in which the Company directly or indirectly owns any interest.
"TREASURY REGULATIONS" mean regulations promulgated under the Code.
"TRIUMPH MUNICIPAL" means Triumph Municipal Outdoor, LLC.
"UNRECOVERED CAPITAL CONTRIBUTIONS" means for any Member, the aggregate
amount of Capital Contributions theretofore made by such Member, reduced by the
aggregate amount of distributions theretofore made to such Member pursuant to
Sections 6.2(a)(i) and 6.2(b).
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ARTICLE II
ORGANIZATION AND TERM
Section 2.1 Formation. (a) Pursuant to the Act, the Members hereby
organize the Company as a Delaware limited liability company, the formation of
which shall be effective upon the filing of the Certificate.
(b) In order to maintain the Company as a limited liability company
under the laws of the State of Delaware and to qualify to do business in any
state in which the Manager determines to be appropriate or necessary, the
Company shall from time to time take appropriate action, including the
preparation and filing of such amendments to the Certificate and such other
assumed name certificates, documents, instruments and publications as may be
required by law, including, without limitation, action to reflect:
(i) qualification to do business in any state in which the Company
directly, or indirectly through a Subsidiary, owns property or conducts
business, as determined by the Manager in its sole and absolute discretion;
(ii) a change in the Company name;
(iii) a correction of a defectively or erroneously executed
Certificate;
(iv) a correction of false or erroneous statements in the
Certificate or the desire of the Members to make a change in any statement
therein in order that it shall accurately represent the agreement among the
Members; or
(v) a change in the time for dissolution of the Company as stated
in the Certificate and in this Agreement.
Section 2.2 Further Documentation. Each Member hereby agrees to
execute and deliver to the Company within five (5) days after receipt of a
written request therefor, such other and further documents and instruments,
statements of interest and holdings, designations, powers of attorney and other
instruments and to take such other action (or refrain from taking any action)
as the Company deems necessary, useful or appropriate to comply with any laws,
rules or regulations as may be necessary to enable the Company to fulfill its
responsibilities under this Agreement, to preserve the Company as a limited
liability company under the
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Act and to enable the Company to be taxed as a partnership for federal, state
and local income tax purposes.
Section 2.3 Term. The term of the Company shall commence upon filing
the Certificate and shall continue in full force and effect until the earliest
of the following: (i) March 31, 2008; (ii) upon the happening of an event
described in Section 9.1 hereof; or (iii) a dissolution pursuant to the Act.
Section 2.4 Registered Agent and Office. The registered agent for the
service of process and the registered office shall be that Person and location
reflected in the Certificate. In the event the registered agent ceases to act
as such for any reason or the registered office shall change, the Manager shall
promptly designate a replacement registered agent or file a notice of change of
address, as the case may be.
Section 2.5 Principal Place of Business. The principal place of
business of the Company shall be at 205 East Carrillo Street, Suite 215, Santa
Barbara, California 93101. At any time, the Company may change the location of
its principal place of business and may establish additional offices.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose. The purpose of the Company is to acquire,
directly or indirectly (a) all of the assets and operations of Transit America,
Inc., a Nevada Corporation, and (b) all other investments made or to be made by
itself or any of its Affiliates in the municipal outdoor advertising business
and related businesses.
Section 3.2 Powers of the Company. In furtherance of the purpose of
the Company as set forth in Section 3.1, the Company shall have the power and
authority to take in its name all actions necessary, useful or appropriate in
the Manager's sole and absolute discretion to accomplish its purpose and take
all actions necessary, useful or appropriate in connection therewith or
incidental thereto.
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Section 3.3 Tax Status of Company. It is the intention of the parties
hereto that the Company be treated as a partnership for federal income tax
purposes within the meaning of Section 7701(a)(2) of the Code and the Treasury
Regulations promulgated thereunder. Neither the Manager nor any Member shall
file the election under Treasury Regulations Section 301.7701-3 to be
classified as a corporation for federal income tax purposes.
ARTICLE IV
MEMBER'S CAPITAL CONTRIBUTIONS AND INTERESTS
Section 4.1 Capital Contributions. Upon the execution of this
Agreement and as hereinafter provided, each Member shall be obligated to
contribute to the capital of the Company as its Capital Contribution the amount
set forth opposite its name on Exhibit B attached hereto.
Section 4.2 Percentage Interests. Each Member's Percentage Interest is
as set forth on Exhibit C attached hereto.
Section 4.3 Additional Contributions. (a) Except as expressly provided
in this Agreement or as required by law, no Member shall be required to make
any contributions to the capital of the Company. Without limiting the
foregoing, no Member shall be required to contribute to the capital of the
Company to restore a deficit in the Member's Capital Account existing at any
time. No Member will be bound by, or be personally liable for, the expenses,
liabilities or obligations of the Company. No Member shall be responsible for
any liabilities or obligations of any other Member.
(b) The Manager may, if determined by the Manager to be in the best
commercial interests and consistent with the purposes of the Company, request
and accept additional contributions (which may be in the form of cash or other
property or assets) ("ADDITIONAL CONTRIBUTIONS") in excess of the Members'
Capital Contributions from any Person (including from any existing Member).
Such Additional Contributions may be evidenced by such interests in the
profits, losses and distributions of the Company as determined by the Manager.
In connection therewith, the Manager may admit Persons as Additional Members,
provided
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that such Persons agree to be bound by all of the provisions of this Agreement
as a Member. Without limiting the foregoing, the Manager is expressly
authorized to cause the Company to issue to any Person a Capital Interest
and/or Percentage Interest that is disproportionate to the amount of such
Person's Additional Contributions, so long as the Manager concludes in good
faith that such issuance is in the interest of the Company (for example, and
not by way of limitation, the Company may permit an employee, pursuant to an
employee purchase plan, to purchase an Interest at a discount from fair market
value or employee options that have an exercise price that is less than the
fair market value of the Interest being acquired, either at the time of
issuance or at the time of exercise). As part of Hazel's compensation for
serving as President of the Company, Hazel and the Company have entered into
the Hazel Option Agreement pursuant to which the Company has granted Hazel an
option (the "HAZEL OPTIONS") to purchase additional Interests. The Hazel Options
are subject to a three-year vesting period and such other terms and provisions
as set forth in the Hazel Option Agreement, attached hereto as Exhibit D.
Section 4.4 Withdrawals and Interest. No Member shall have the right
to withdraw from the Company or receive any return or interest on any portion
of its Capital Contributions, except as otherwise provided herein.
Section 4.5 Return of Capital. No Member shall be entitled to the
return of all or any part of its Capital Contributions, except in accordance
with the provisions of this Agreement.
Section 4.6 Capital Accounts. The Company shall determine and maintain
"Capital Accounts" for each Member throughout the full term of the Company in
accordance with the provisions of Treasury Regulations Section
1.704-1(b)(2)(iv), as such regulation may be amended from time to time. To the
extent not inconsistent with such rules, the following shall apply:
(a) The Capital Account of each Member shall be credited with (1) an
amount equal to such Member's Capital Contributions and the fair market value
of property contributed to the Company by such Member (net of liabilities
secured by such contributed Property that the Company is considered to assume
or
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take subject to under Section 752 of the Code) and (2) such Member's share of
the Company's Net Profit (or items thereof). The Capital Account of each Member
shall be debited by (1) the amount of all distributions to such Member and the
fair market value of property distributed to such Member (net of liabilities
assumed by such Member and liabilities to which such distributed property is
subject) and (2) such Member's share of the Company's Net Loss.
(b) Upon the transfer of an Interest after the date of this Agreement,
(x) if such transfer does not cause a termination of the Company within the
meaning of Section 708(b)(1)(B) of the Code, the Capital Account of the
transferor Member that is attributable to the transferred Interest will be
carried over to the transferee Member but, if the Company has a Section 754
election in effect, the Capital Account will not be adjusted to reflect any
adjustment under Section 743 of the Code except as provided in Treasury
Regulations Section 1.704-1(b)(2)(iv)(m), or (y) if such transfer causes a
termination of the Company within the meaning of Section 708(b)(1)(B) of the
Code, the income tax consequences of the deemed contribution of the Property by
the Company to a "new" Company (which for all other purposes continues to be
the Company) in exchange for an interest in the "new" Company, and the deemed
immediate distribution of such interests in the "new" Company by the
"terminated" Company to the transferee Member and the other remaining Members
in proportion to their respective interests in the "terminated" Company in
liquidation thereof, shall be governed by the relevant provisions of Subchapter
K of Chapter 1 of the Code and the Treasury Regulations promulgated thereunder,
and the Capital Account of the transferee Person (which is the same as the
Capital Account of the transferor Member) and the other Members of the
"terminated" Company shall carry over and become the initial Capital Accounts
of such Members in the "new" Company, in accordance with Treasury Regulations
Section 1.704-1(b)(2)(iv)(1), and thereafter the Capital Accounts of such
Members shall be determined in accordance with Section 4.6(a).
(c) Upon (i) the "liquidation of the Company" (as hereinafter
defined), (ii) the distribution of money or Property to a Member as
consideration for an Interest, or (iii) the contribution of money or Property
to the Company by a new or existing Member as consideration for an Interest,
then
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adjustments shall be made to the Members' Capital Accounts in the following
manner: All Property which is not sold in connection with such event shall be
valued at its then "fair market value" as determined by the Manager in its sole
and absolute discretion subject only to Delaware law. Such "fair market value"
shall be used to determine both the amount of gain or loss which would have
been recognized by the Company if the Property had been sold for its fair
market value (subject to any debt secured by the Property) at such time, and the
amount of Net Cash Flow, as the case may be, which would have been
distributable by the Company pursuant to Section 6.2 if the Property had been
sold at such time for said value. The Capital Accounts of the Members shall be
adjusted to reflect the deemed allocation of such hypothetical gain or loss in
accordance with Section 6.1. The Capital Accounts of the Members (or of a
transferee of a Member), and the Net Profits and Net Losses of the Company,
including depreciation with respect to, and gain or loss arising from, the sale
or disposition of any revalued Property or Property described in Treasury
Regulations Section 1.704-1(b)(2)(iv), shall be adjusted to reflect "book
items" and not tax items in accordance with Treasury Regulations Sections
1.704-1(b)(2)(iv)(g) and 1.704-1(b)(4)(i).
(d) For purposes of this Section 4.6, the term "LIQUIDATION OF THE
COMPANY" shall mean (A) a termination of the Company effected in accordance
with this Agreement, which shall be deemed to occur, for purposes of this
Article IV, on the date upon which the Company ceases to be a going concern and
is continued in existence solely to wind-up its affairs, or (B) a termination
of the Company pursuant to Section 708(b)(1) of the Code.
Section 4.7 Liability. No Member shall be liable under a judgment,
decree or order of a court, or in any other manner for a debt, obligation or
liability of the Company. Additionally, no Member shall be required to lend any
funds to the Company or to pay any contributions, assessments or payments to
the Company except the initial Capital Contributions provided for in this
Article IV.
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ARTICLE V
MANAGEMENT OF THE COMPANY
Section 5.1 Management.
(a) The business and affairs of the Company shall be managed by its
Manager. All decisions concerning the business and affairs of the Company shall
be made by the Manager. Only the Manager has the authority to bind the Company,
although the Manager may delegate some or all of such authority as provided for
herein. Triumph is hereby designated as Manager and is authorized to make all
management decisions of the Company on behalf of the Members including, but not
limited to, the actions described in Section 5.1(b). The Manager may adopt such
rules and regulations for the conduct of the meetings of the Members and the
management of the Company not inconsistent with this Agreement and the Act. The
Manager may not be removed. The Manager shall make all decisions, and take all
actions, necessary on behalf of the Company to perform under this Agreement.
The Manager may appoint and/or replace individuals with such titles as it may
elect, including the titles of Managing Director, Chief Executive Officer,
President, Vice President, Treasurer and Secretary, to act on behalf of the
Company, with such power and authority as the Manager may delegate in writing
to any such individuals. The Manager hereby appoints the following persons:
James A. McLaughlin - Chief Executive Officer
Patrick K. Hazel - President
James J. Sullivan - Vice-President
(b) Without limiting the generality of Section 5.1(a), the Manager
shall have the power and authority on behalf of the Company:
(i) To execute contracts and guaranties, incur liabilities and
issue notes, bonds and other obligations;
(ii) To invest and reinvest the Company's funds, including the
lending of money, and receive and hold property as security for repayment;
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(iii) To employ accountants, legal counsel, managing agents or
other experts to perform services for the Company (including Triumph Holdings
LLC or any Affiliate thereof) and to compensate them from the Company funds;
(iv) To pay, and reimburse the Manager for, all expenses incurred
in connection with the conduct of the Company's business, the establishment of
Company offices, and the exercise of the powers of the Company, in all cases
within or without the State of Delaware;
(v) To sell, transfer, convey, pledge, exchange or otherwise
dispose of any of the Property;
(vi) To acquire additional property or assets on behalf of the
Company;
(vii) To borrow money from banks, other lending institutions, the
Members or otherwise;
(viii) To hypothecate, encumber, mortgage, and grant security
interests in any of the Property;
(ix) To employ, compensate, or otherwise engage any Member or an
Affiliate of any Member;
(x) To participate in partnerships, joint ventures, limited
liability companies or other associations of any kind with any Person or
Persons;
(xi) To institute, prosecute and defend against any judicial or
administrative proceeding in the Company's name;
(xii) To file in the name of or on behalf of the Company or its
Subsidiaries any petition for relief in bankruptcy under any federal bankruptcy
laws or debtor relief laws or any other debtor relief laws of any jurisdiction;
and
(xiii) To do and perform all other acts as may be necessary or
appropriate to the conduct of the Company's business.
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In Addition, prior to the submission to the Members, the Manager shall first
approve and recommend (a) any amendment to the Certificate, (b) any amendment
to this Agreement and (c) any merger or consolidation of the Company with or
into any other Person.
Section 5.2 Indemnity. The Company shall indemnify and hold harmless
the Members and their respective directors, officers, agents, members, partners,
shareholders and employees from any loss or damage incurred by them (including
reasonable attorney's fees and costs) by reason of any acts performed or omitted
by them for or on behalf of the Company unless they committed such acts in bad
faith or such acts were the results of active and deliberate dishonesty and were
material to the cause of action so adjudicated or such Members or their
respective directors, officers, agents, members, partners, shareholders or
employees shall have personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Section 5.3 Reliance on Authority of Manager. Any Person dealing with
the Company, other than a Member, may rely on the authority of the Manager
without inquiry into the provisions of this Agreement or compliance herewith,
regardless of whether that action actually is taken in accordance with the
provisions of this Agreement.
Section 5.4 Service Fees. The Company shall enter into the Services
Agreement, pursuant to which Triumph Holdings, LLC (or a permitted assignee
thereof) shall perform certain services in exchange for which Triumph Holdings,
LLC shall be paid by the Company such fees, compensation, reimbursements and/or
other payments, as provided for in the Services Agreement.
Section 5.5 Limitation on Compensation of Manager or Affiliates
Thereof. Notwithstanding any provision herein to the contrary and except as
provided for under Section 5.4 and the Services Agreement, any compensation,
reimbursement of, or payment to the Manager or any Affiliate of the Manager
pursuant to this Agreement shall be reasonable and not greater than the amount
which would be paid had the services or other item compensated, reimbursed or
paid for been provided by a third party unrelated to the Manager. The only
fees, compensation, reimbursements and/or other payments that shall be made in
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respect of services that are required to be rendered pursuant to the Services
Agreement shall be as set forth in the Services Agreement.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations of Net Profit and Net Loss.
(a) Net Profit. The Net Profit of the Company, for each fiscal year of
the Company, shall be allocated among the Members as follows:
(i) First, to the Members in proportion to their respective
Percentage Interests, an amount equal to the excess of the aggregate amount of
Net Loss previously allocated pursuant to Section 6.1(b)(ii) for all prior
fiscal years over the aggregate amount of Net Profit previously allocated
pursuant to this Section 6.1(a)(i);
(ii) Second, to the Members in proportion to their respective
Capital Interests, an amount equal to the excess of the aggregate amount of Net
Loss previously allocated pursuant Section 6.1(b)(i) for all prior fiscal years
over the aggregate amount of Net Profit previously allocated pursuant to this
Section 6.1(a)(ii); and
(iii) Third, to the Members in proportion to their respective
Percentage Interests.
(b) Net Loss. Net Loss of the Company, for each fiscal year of the
Company, shall be allocated among the Members as follows:
(i) First, to the Members in proportion to their respective
Capital Interests, until the Capital Account of any Member has been reduced to
zero; and
(ii) Second, to the Members in proportion to their respective
Percentage Interests.
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(c) Special Rules Regarding Allocations. Notwithstanding the foregoing
provisions of Sections 6.1(a) and 6.1(b):
(i) In accordance with sections 704(b) and (c) of the Code and the
Treasury Regulations thereunder, income, gain, loss and deduction with respect
to any Property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such Property to the Company and its agreed
value. As provided for by Treasury Regulations Section 1.704-3(a)(3)(i), with
respect to any Property which is deemed to be contributed by the Company to the
"new" Company by virtue of the Company's deemed liquidation under Section
708(b)(1)(B) of the Code, the allocations described in the previous sentence
shall only be required with respect to, and to the extent that, such
allocations would have otherwise been required without regard to the effects of
the deemed liquidation. In the event that Capital Accounts are ever adjusted
pursuant to Treasury Regulations Section 1.704-1(b)(2) to reflect the fair
market value of any Property, subsequent allocations of income, gain, loss and
deduction with respect to such asset shall, solely for tax purposes, take
account of any variation between the adjusted basis of such asset and its value
as adjusted in the same manner as required under section 704(c) of the Code and
the Treasury Regulations thereunder.
(ii) At no time shall any allocation of losses be made to a Member
if such allocation would cause the deficit in the Member's Capital Account, if
any, to exceed his "partnership minimum gain" or "partner nonrecourse debt
minimum gain" (as defined in Treasury Regulations Sections 1.704-2(b)(2) and
(g)(1) and (i)(2) and (5), respectively), and any losses not allocated to a
Member by reason of this clause (ii) shall be allocated to each Member whose
deficit, if any, in the Member's Capital Account of such Member shall not
exceed his allocable share of such minimum gain by reason of such allocation,
or to the Members who bear the economic risk of loss attributable to such
losses, and subsequent profits shall be allocated to Members to the extent
losses have previously been allocated to them pursuant to this Section
6.1(c)(ii).
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(iii) Nonrecourse deductions, as defined in Treasury Regulations
Section 1.704-2(b)(1), shall be allocated among the Members in proportion to
their Percentage Interests. Partner nonrecourse deductions shall be allocated
among the Members in the proportion to which they share the economic risk of
loss with respect to the partner nonrecourse debt to which such deductions are
attributable in accordance with Treasury Regulations Section 1.704-2(i).
(iv) If there is a net decrease in the "partnership minimum gain"
(within the meaning of Treasury Regulations Section 1.704-2(g)(2)) for a
Company taxable year, then, before any allocations are made for such year other
than those pursuant to clause (ii) above, each Member with a share of the
partnership minimum gain at the beginning of the year shall be allocated items
of Company income and gain for such year (and, if necessary for subsequent
years) in an amount equal to each Member's share of the net decrease in
partnership minimum gain as determined in accordance with Treasury Regulations
Section 1.704-2(f) in a manner so as to satisfy the requirements of said
Treasury Regulation.
(v) If, during any taxable year, there is a net decrease in
partner nonrecourse debt minimum gain, then, before any other allocations are
made for such year other than those pursuant to clause (ii) above, each Member
with a share of the partner nonrecourse debt minimum gain at the beginning of
the year shall be allocated items of Company income and gain for such year
(and, if necessary, for subsequent years) in an amount equal to each Member's
share of the net decrease in partner nonrecourse debt minimum gain as
determined in accordance with Treasury Regulations Section 1.704-2(i)(4) in a
manner so as to satisfy the requirements of said Treasury Regulation.
(vi) If, during any taxable year, a Member unexpectedly receives,
or, as of the end of such year, is reasonably expected to receive, an
adjustment, allocation or distribution described in paragraph (4), (5) or (6)
of Treasury Regulations Section 1.704-1(b)(2)(ii)(d), and if such adjustment,
allocation or distribution would cause at the end of the taxable year a deficit
balance in such Member's Capital Account in excess of his allocable share of
minimum gain as described above, then such Member shall be allocated items of
income and gain for such
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taxable year (and, if necessary, subsequent taxable years) in an amount and in
a manner sufficient to eliminate such excess balance as quickly as possible
before any other allocation is made for such year, other than pursuant to
clause (ii) and (iii) above, so as to satisfy the requirements of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) (qualified income offset).
(vii) In the event any Member has a deficit balance in his Capital
Account at the end of the fiscal year which is in excess of the sum of (A) the
amount such Member is obligated to restore pursuant to any provision of this
Agreement, if any, and (B) the amount such Member is deemed to be obligated to
restore pursuant to the penultimate sentence of Treasury Regulations Section
1.704-2(g)(1) and Treasury Regulations Section 1.704-2(i)(5), such member shall
be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible.
Section 6.2 Distributions.
(a) The Manager shall distribute Net Cash Flow, and may in its
discretion distribute any Property to the Members in the following order of
priority:
(i) First, to the Members, an amount equal to (or in proportion to
if less than) such Member's Unrecovered Capital Contributions; and
(ii) The balance, if any, to the Members, in proportion to their
respective Percentage Interests.
(b) Notwithstanding Section 6.2(a) but subject to Section 6.3, the
manager shall distribute to each Member, within ninety (90) days following the
end of the Company's taxable year, an amount of Net Cash Flow (to the extent
thereof) to each Member equal to, when combined with all other distributions to
such Member in the current and all preceding taxable years, the product of
forty-five percent (45%) and the excess, if any, of (i) the aggregate net
taxable income allocated to such Member in the current and all preceding
taxable years, over (ii) the aggregate net taxable loss allocated to such
Member in all preceding taxable years. Any amounts distributed under this
Section 6.2(b) shall be taken into account in computing
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subsequent distributions under Section 6.2(a) so that the total amount
distributed under Section 6.2(a) and this Section 6.2(b) shall be the amount
which would have been distributed under Section 6.2(a) if the special
distribution under this Section 6.2(b) had not occurred.
(c) In the event the Company is required to deduct and withhold,
pursuant to the Code or any other federal, state or local law, rule or
regulation which is currently in effect or which may be promulgated hereafter
("APPLICABLE LAW"), any amount from an actual distribution to a Member, the
amount so deducted and withheld from such distribution shall, for all purposes
of this Agreement, be treated as a distribution to such Member of the same type
as the distribution giving rise to the obligation. In the event Applicable Law
requires the Company to pay or withhold any amount on behalf of a Member
(including any federal, state or local taxes) measured by a Member's
distributive share of the Company's Net Profit, gain or any other Company item,
other than any amount required to be deducted and withheld from actual
distributions to a Member, then the payment or withholding of any such amount
shall be considered a loan ("TAX LOAN") by the Company to such Member (the
"BORROWING MEMBER"). The Borrowing Member shall repay any such Tax Loan within
30 days after the Manager (or if the Manager fails to do so, any Member)
delivers a written demand therefor, together with interest at an annual rate
equal to two percent (2%) per annum in excess of the rate announced from time
to time in the Wall Street Journal as the "prime rate" from the date such loan
was made until the date of the repayment thereof. In addition to any other
rights of the Company to enforce its entitlement to receive payment of the Tax
Loan, plus any accrued interest thereon, the Company may deduct from any
distribution to be made to a Borrowing Member an amount not greater than the
outstanding balance of any Tax Loan, plus any accrued interest thereon, as a
payment in total or partial satisfaction thereof.
Section 6.3 Limitation Upon Distributions. No distribution shall be
declared and paid if, after the distribution is made the sum of the fair market
value of the Company's total assets would be less than the sum of its total
liabilities.
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ARTICLE VII
TRANSFERABILITY
Section 7.1 Restrictions on Transferability. Subject to Sections 7.2,
7.3 and 7.4, no Member (other than the Manager) shall transfer, assign, pledge,
hypothecate or otherwise encumber (individually, a "TRANSFER" and collectively,
"TRANSFERS"), directly or indirectly, all or any portion of an Interest (or,
any interest in a revocable trust to which an Interest (or any portion thereof)
was transferred in an Estate Planning Transfer) without the prior written
consent of the Manager (which consent may be withheld in the Manager's sole and
absolute discretion). If the Manager does not approve, in advance, of any
Transfer, then, in addition to any other remedy which the Company may have
against any Person with respect to such Transfer, the purchaser, transferee
and/or assignee of an Interest (or any portion thereof) that is the subject of
a Transfer shall have no right to be admitted as a Member and no right to
participate in the management of the business and affairs of the Company. No
Transfer of any Interest (or any portion thereof) shall be effective unless and
until written notice (including the name and address of the proposed purchaser,
transferee or assignee and the date of such transfer) has been provided to the
Manager.
Section 7.2 Tag-Along Rights.
(a) Notwithstanding Section 7.1, in the event the Manager desires to
sell, assign or otherwise transfer its Interest (or any portion thereof) in
response to a bona fide offer from a third party, and such Interest (or portion
thereof) constitutes in excess of fifty percent (50%) of the aggregate
Interests then held by all Members, then the other Members (the "TAG-ALONG
MEMBERS" OR "TAG-ALONG MEMBER", as the case may be) shall have the right (the
"TAG-ALONG RIGHT") to require, as a condition to the proposed transfer by the
Manager, that such proposed bona fide third party purchaser of the Manager's
Interest also purchase the Interests (the "TAG-ALONG INTEREST") of the
Tag-Along Members. In the event of such proposed transfer by the Manager, the
Manager shall provide written notice (the "OFFER NOTICE") to the Tag Along
Members setting forth the name and address of the prospective transferee and
the bona fide price for the Manager's Interest and other bona fide terms and
conditions upon which the transfer is contemplated. Each Tag-
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Along Member shall be required to transfer its Tag-Along Interest at such bona
fide price (as adjusted to take into account the size of the respective
Interests being transferred) and under the same terms and conditions as the
Manager has agreed to sell its Interest.
(b) The Tag-Along Right provided for in this Section 7.2 may be
exercised by the Tag-Along Members by delivery of a written notice to the
Manager (the "TAG-ALONG NOTICE"), within ten (10) business days following
receipt by the Tag Along Members of the Offer Notice. If a Tag-Along Member
does not deliver a Tag-Along Notice within such ten (10) business day period,
the Tag-Along Member shall be deemed to have waived its Tag-Along Right with
respect to the proposed sale by the Manager.
(c) The Manager may, not later than forty-five (45) days following
delivery to the Tag-Along Members of any Offer Notice, conclude a transfer of
its Interest (or any portion thereof) covered by an Offer Notice on terms and
conditions not materially different from those described in the Offer Notice.
If the Tag-Along Member shall have delivered a Tag-Along Notice within the ten
(10) business day period referred to in clause (b) above, the purchase of the
Tag-Along Member's Interest shall be made contemporaneous with the purchase of
the Manager's Interest. Any proposed transfer on terms and conditions
materially different from those described in the Offer Notice, as well as any
proposed transfer of the Interest (or any portion thereof) of the Manager more
than forty-five (45) days following the delivery to the Tag-Along Members of
the Offer Notice, shall again be subject to the Tag-Along Rights of the
Tag-Along Members and shall require compliance by the Manager with the
procedures described in this Section 7.2.
Section 7.3 Drag Along Rights.
(a) The Manager may require all of the Members (the "DRAG-ALONG
MEMBERS" OR "DRAG-ALONG MEMBER", as the case may be) to sell and assign all of
their Interests in a transaction which constitutes a bona fide sale and
assignment (a "DRAG-ALONG SALE") of all of the Interests in the Company to any
Person that is not an Affiliate of the Manager.
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(b) To exercise such right, the Manager shall send written notice (the
"DRAG-ALONG NOTICE") to the Drag-Along Members, setting forth the consideration
to be paid by the third party purchaser and the other terms and conditions of
such transaction. Each Drag-Along Member shall be required to consummate the
Drag-Along Sale for the amount of consideration and under the terms and
conditions set forth in the Drag-Along Notice. At the consummation of the
purchase of such Interests by the third party purchaser, the Drag-Along Members
shall deliver to the Manager duly executed instruments of transfer for their
Interests. If one or more of the Drag-Along Members fails to deliver such
instrument of transfer to the Manager, the Manager shall cause the books and
records of the Company to show that such Interest is bound by the provisions of
this Section 7.3 and that such Interest shall be transferred only to the third
party purchaser. In the event one or more of the Drag-Along Members fails to
deliver the duly executed instruments of transfer to the Manager as required
herein, then the Manager may execute any documents as shall be required by the
Company for the purpose of transferring any Interest on the books and records
of the Company, including but not limited to, an instrument of transfer, and as
required by this Section 7.3 and the Manager is deemed appointed the
attorney-in-fact of each such Drag-Along Member for the purpose of effectuating
the requirements of this Section 7.3.
(c) Promptly, but in no event later than three (3) days after the
consummation of the sale of the Interests of the Manager and the Drag-Along
Members pursuant to this Section 7.3, the Manager shall remit to the Drag-Along
Members the applicable sales price for their Interests sold pursuant hereto
(net of all costs and expenses incurred in connection with the sale).
Section 7.4 Estate Planning Transfers. Notwithstanding Section 7.1, a
Member may transfer or assign its Interest (or any portion thereof) to a
revocable trust the sole beneficiary (or beneficiaries) of which are one or
more of the Member or a Family Member of such Member for estate planning
purposes without any approval from the Manager or the other Members, provided
that such revocable trust agrees, in writing, to be bound by all of the
provisions of this Agreement (an "ESTATE PLANNING TRANSFER"). The Member shall
promptly notify the Manager, in writing, of any such Estate Planning Transfer
and provide such other information
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with respect to such transfer or assignment as the Manager shall reasonably
request.
Section 7.5 Permitted Transfers. Any Transfer which is either
permitted or required to be made pursuant to this Article VII shall be referred
to herein as a "PERMITTED TRANSFER."
ARTICLE VIII
ADDITIONAL AND SUBSTITUTE MEMBERS
Section 8.1 Admission of New Members. From the date of the formation
of the Company, any Person may, with the prior written consent of the Manager
(which consent may be withheld in the Manager's sole and absolute discretion),
be admitted as an Additional Member, provided that such Person agrees in
writing to be bound by all of the provisions of this Agreement. In addition,
any Person that acquires an Interest (or any portion thereof) in a Permitted
Transfer and which agrees in writing to be bound by all of the provisions of
this Agreement shall be admitted as a Member.
Section 8.2 Allocations to New Members. The other Members may, at
their option, at the time an Additional Member is admitted, close the Company
books (as though the Company's tax year had ended) or make pro-rata allocations
of loss, income and expense deductions to an Additional Member for that portion
of the Company's tax year in which an Additional Member was admitted, in
accordance with the provisions of Section 706(d) of the Code and the Treasury
Regulations promulgated thereunder.
ARTICLE IX
DISSOLUTION AND TERMINATION
Section 9.1 Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
(a) when the period fixed for the duration of the Company shall
expire;
(b) by the unanimous written consent of all the Members;
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(c) the entry of a decree of judicial dissolution under Section 18-802
of the Act; or
(d) any other event that terminates the Company.
Section 9.2 Distribution of Assets Upon Dissolution. In settling
accounts after dissolution, the liabilities of the Company shall be entitled to
payment in the following order:
(a) to creditors including Members who are creditors to the extent
otherwise permitted by law, other than liabilities for distributions to
Members;
(b) reasonable reserves necessary in connection with the winding up of
the Company's affairs as determined by the Manager; and
(c) to Members of the Company in the same manner as distributions are
made under Section 6.2; provided, however, that no Member shall receive
distributions in excess of such Member's positive Capital Account balance after
its Capital Account has been adjusted to reflect all allocations of income,
gain, loss and deductions attributable to the dissolution event pursuant to
Section 9.1.
Section 9.3 Winding up. Except as provided by law, upon dissolution,
each Member shall look solely to the Property for the return of its Unrecovered
Capital Contributions. If the Property remaining after the payment or discharge
of the debts and liabilities of the Company is insufficient to return to a
Member such Member's Unrecovered Capital Contributions, such Member shall have
no recourse against any other Member (or the Manager whether or not also a
Member). The winding up of the affairs of the Company and the distribution of
its assets shall be conducted exclusively by the Manager, who is hereby
authorized to take all actions necessary to accomplish such distribution
including, without limitation, selling any Property it deems necessary or
appropriate to sell.
Section 9.4 Articles of Dissolution. When all debts, liabilities and
obligations have been paid and discharged or adequate provisions have been made
therefor and all of the
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remaining property and assets have been distributed to the Members, a
Certificate of Cancellation shall be executed and filed pursuant to Section
18-203 of the Act, and shall contain the information required by the Act.
ARTICLE X
FINANCIAL STATEMENTS, BOOK RECORDS AND TAX RETURNS
Section 10.1 Books of Account. The Manager shall maintain, at the
principal office of the Company, complete books of account, in which there
shall be entered, fully and accurately, every transaction of the Company and
shall include the following:
(a) A current list of the full name and last known business address of
each Member and Manager (if not also a Member);
(b) A copy of the Certificate and all amendments thereto; and
(c) Copies of the Company's federal, state, and local income tax
returns and reports, if any, for the three most recent years.
Section 10.2 Financial Statements and Reports. The Manager shall
furnish the Members with all information required by law to be distributed to
the Members.
Section 10.3 Returns and Other Elections. The Manager shall cause the
preparation and timely filing of all tax returns required to be filed by the
Company pursuant to the Code and all other tax returns deemed necessary and
required in each jurisdiction in which the Company does business. All elections
and options available to, or determinations as to items of income or expense
of, the Company for federal, state or local income tax purposes shall be taken,
rejected or made by the Company in the sole and absolute discretion of the
Manager. Copies of such returns, or pertinent information therefrom, shall be
furnished to the Members within a reasonable time after the end of the
Company's fiscal year, but not later than April 15th.
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Section 10.4 Election under Section 754 of the Code. In the event of
any transaction described in Section 743(b) or Section 734 of the Code and
permitted by the provisions of this Agreement, the Company shall, upon the
timely written request of the person succeeding to a Company Interest in such
transaction, make the election provided for in Section 754 of the Code.
Section 10.5 Tax Matters Member. Triumph Municipal is hereby
designated the Tax Matters Member (the "TMM") of the Company for purposes of
Chapter 63 of the Code and the Treasury Regulations thereunder.
(a) Each Member shall furnish the TMM with such information as the TMM
may reasonably request to permit it to provide the Internal Revenue Service
with sufficient information to allow proper notice to the parties in accordance
with Section 6223 of the Code.
(b) No Member shall file, pursuant to Section 6227 of the Code, a
request for an administrative adjustment of Company items for any Company
taxable year without first notifying the TMM. If the TMM agrees with the
requested adjustment, the TMM shall file the request for administrative
adjustment on behalf of the Company. If the Members do not reach agreement
within 30 days or within the period required to timely file the request for
administrative adjustment, if such period is shorter, any Member may file a
request for administrative adjustment on its own behalf. If, under Section 6227
of the Code, a request for administrative adjustment which is to be made by the
TMM must be filed on behalf of the Company, the TMM shall also file such a
request on behalf of the Company under the circumstances set forth in the
preceding sentence.
(c) If any Member intends to file a petition under Section 6226 or
6228 of the Code with respect to any Company item or other tax matter involving
the Company, the Member so intending shall notify the other Members of such
intention and the nature of the contemplated proceeding. Such notice shall be
given in a reasonable time to allow the other Members to participate in the
choosing of the forum in which such petition will be filed. If the Members do
not agree on the appropriate forum, the petition shall be filed with the United
States Tax Court. If any Member intends to seek review of any court decision
rendered as a
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result of the proceeding instituted under the preceding part of this
subsection, such party shall notify the others of such intended action.
(d) The TMM shall not bind the other Members to a settlement agreement
without the Approval of the Members, unless such settlement is for less than
$100,000 in the aggregate. If any Member enters into a settlement agreement
with the Secretary of the Treasury with respect to any Company items, as
defined by Section 6231(a)(3) of the Code, it shall notify the other Members of
such settlement agreement and its terms within thirty (30) days from the date
of settlement.
(e) The TMM shall notify the other Members of any tax imposed on the
Company or of any notice received from any taxing authority proposing the same.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
Section 11.1 The Members' Representations. The Members represent and
warrant as follows:
(a) No portion of the funds to be used for Company purposes shall
be derived from any source which might subject said funds to civil or criminal
forfeiture;
(b) As of the date hereof, the Members will be acting on their own
behalf and not on account of or for the benefit of any Plan;
(c) The Members have no present intent to transfer any of the
Property to any Person or Plan which will cause a violation of ERISA; and
(d) The Members shall not assign its interest under this Agreement
to any Person or Plan which will cause a violation of ERISA.
Section 11.2 Survival. Notwithstanding any provision in this Agreement
to the contrary, the representations and
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warranties in this Article XI shall survive the closing of the Property for a
period of one year.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices. Any notice, demand, election or other
communication (hereinafter called a "NOTICE") that, under the terms of this
Agreement or under any statute, must be or may be given by the parties hereto
shall be in writing and shall be given by mailing the same by certified or
registered mail, return receipt requested, postage-prepaid, addressed or by
reputable overnight courier:
Triumph Municipal:
Triumph Municipal Outdoor, LLC
205 East Carrillo Street
Suite 215
Attention: Bruce A. Friedman
Santa Barbara, California 93101
Fax No.: (805) 965-5683
Phone No.: (805) 965-2043
with a copy to:
Pryor Cashman Sherman & Flynn, LLP
410 Park Avenue
New York, New York 10022
Attention: Blake Hornick, Esq.
Fax No.: (212) 326-0806
Phone No.: (212) 326-0133
Hazel:
Patrick K. Hazel
2454 Via Aprilia
Del Mar, California 92014
Fax No.: (619) 792-0434
Phone No.: (619) 792-8838
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with a copy to:
Lawrence I. Tannenbaum, Esq.
Gray Cary Ware & Freidenrich
401 B Street, Suite 1700
San Diego, California 92101-4297
Fax No.: (619) 236-1048
Phone No.: (619) 699-2700
All copies of notices to be sent to any party hereunder shall be sent
in the same manner as required for notices. Either party may designate, by
notice in writing to the other, a new or other address to which notices shall
thereafter be given. Any notice given hereunder (other than a notice of a new
address or additional address for notice purposes) shall be deemed given when
received as hereinabove provided. Any notice of a new or additional address for
notice purposes shall be deemed given on the date upon which the same is
received by the addressee thereof.
Section 12.2 Complete Agreement. This Agreement fully sets forth all
of the agreements and understandings of the parties with respect to the Company
and supersedes any prior agreements of the parties. There are no
representations, agreements, arrangements or understandings, oral or written,
other than contemporaneous agreements, among the parties relating to the
subject matter of this Agreement which are not expressly set forth herein.
Section 12.3 Amendment by Members. Except as may be specifically
provided below in this Section 12.3 and Section 12.4, this Agreement may only
be amended with the written concurrence of the Manager and the written consent
of the other Members owning a majority of the Interests (which shall mean that
only the Manager's consent is necessary if the Manager owns a majority of the
Interests, in which case the other Members need not be solicited but shall be
informed of the amendment). Notwithstanding anything contained in this
Agreement to the contrary, any amendment of the provisions of, or rights or
obligations described in, Articles III, IV, V, VI, VII and IX and Sections 2.3
and 12.3 shall require unanimous approval of all the Members; provided,
however, that no consent of any Member (other than the Manager) shall be
required to merge the Company into
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another corporation, or to convert the Company into a corporation.
Section 12.4 Amendment by Manager. Notwithstanding anything contained
in this Agreement to the contrary, the Manager shall have the power, without
the consent of the other Members, to amend this Agreement as may be required to
facilitate or implement any of the following purposes:
(a) To add to the obligations of the Manager or surrender any right or
power granted to the Manager or any of its Affiliates for the benefit of the
other Members;
(b) To reflect the issuance of an Interest or the admission,
substitution, termination or withdrawal of a Member, each in accordance with
this Agreement;
(c) To reflect a change that is of an inconsequential nature and does
not adversely affect the other Members in any material respect, or to cure any
ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions, or make other changes with
respect to matters arising under this Agreement that will not be inconsistent
with law or with the provisions of this Agreement; and
(d) To satisfy any requirements, conditions or guidelines contained in
any order, directive, opinion, ruling or regulation of a federal or state
agency or contained in federal or state law.
The Manager will provide notice to the other Members when any action under this
Section 12.4 is taken.
Section 12.5 Amendment of Certificate. If this Agreement shall be
amended pursuant to Section 12.3 or Section 12.4, the Manager shall cause the
Certificate to be amended, to the extent required by applicable law, to reflect
such change. The Members shall be promptly notified of any amendments made
under this Section 12.5.
Section 12.6 Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, the applicable laws,
ordinances, rules and
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regulations of the jurisdictions in which the Company engages in business. If
any provision of this Agreement, or the application thereof to any person or
circumstance, shall, for any reason and to any extent, be held to be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected, but rather
shall be enforced to the full extent permitted by law.
Section 12.7 Ratification. Each Person who becomes a Member in the
Company after the execution and delivery of this Agreement shall, by becoming a
Member, be deemed thereby to ratify and agree to all prior actions taken by the
Company, and is deemed to ratify and agree to all of the provisions set forth
in the Agreement.
Section 12.8 Binding Upon Successors. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns, and shall inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns. This Agreement shall become effective upon its execution and delivery
by the Members.
Section 12.9 Rights of Third Parties. None of the provisions of this
Agreement shall be construed as having been made for the benefit of any
creditor of either the Company or any of the Members, nor shall any of such
provisions be enforceable (except as otherwise required by law) by any person
not a party hereto.
Section 12.10 Governing Law. Irrespective of the place of execution or
performance, the validity and construction of this Agreement shall be governed
by the laws of Delaware without regard to conflict of laws principles. The
parties hereto hereby waive the right to trial by jury and hereby consent to
the personal and subject matter jurisdiction of the Federal and state courts of
the State of New York over all disputes arising in connection with this
Agreement.
Section 12.11 Captions. The captions, headings and titles contained in
this Agreement are solely for convenience of reference and shall not affect the
interpretation of this Agreement or of any provision hereof.
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Section 12.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall together constitute one instrument.
Section 12.13 Tense and Gender of Words. All terms and words used in
this Agreement, regardless of the tense or gender in which they are used, shall
be deemed to include each other tense and gender unless the context requires
otherwise.
Section 12.14 Power of Attorney. The Members grant to the Manager an
irrevocable power of attorney for the purpose carrying out the intention or
facilitating the performance of the terms of this Agreement.
Section 12.15 Remedies Cumulative. No remedy set forth in this
Agreement or otherwise conferred upon or reserved to any party shall be
considered exclusive of any other remedy available to a party but the same
shall be distinct, separate and cumulative and may be exercised from time to
time as often as occasion may arise or as may be deemed expedient.
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IN WITNESS WHEREOF, the parties hereto have executed and acknowledged
this Agreement as of the date first above written.
TRIUMPH MUNICIPAL OUTDOOR, LLC
By: /s/ BRUCE A. FRIEDMAN
----------------------------
Name: Bruce A. Friedman
Title: Principal Manager
/s/ PATRICK K. HAZEL
----------------------------
Patrick K. Hazel
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EXHIBIT A
List of Members and their Capital Interests
1. Triumph Municipal Outdoor, LLC 97.5%
2. Patrick K. Hazel 2.5%
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100.0%
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EXHIBIT B
Members' Capital Contributions
Capital Contributions
---------------------
1. Triumph Municipal Outdoor, LLC $7,500,000
2. Patrick K. Hazel $ 192,308
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$7,692,308
==========
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EXHIBIT C
MEMBERS PERCENTAGE INTERESTS
Member
1. Triumph Municipal Outdoor, LLC 97.5%
2. Patrick K. Hazel 2.5%
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100.0%
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