EXHIBIT 3.5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CCK HOLDINGS, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the
"Agreement") of CCK Holdings, LLC (the "Company") is made and entered into as of
this 11th day of December, 2002, by and between the person(s) whose signature(s)
appear(s) below (together with any individual, partnership, corporation, trust,
limited liability company or other entity that is subsequently admitted to the
Company as members, the "Members").
1. NAME; FORMATION. The name of the Company shall be "CCK Holdings,
LLC", or such other name as the Members may from time to time hereafter
designate. The Company shall be formed upon the execution and filing by any
Member (each of which is hereby authorized to take such action) or any other
authorized person of a certificate of formation of the Company with the
Secretary of State of the State of Delaware setting forth the information
required by Section 18-201 of the Delaware Act.
2. DEFINITIONS; RULES OF CONSTRUCTION. In addition to terms otherwise
defined herein, the following terms are used herein as defined below:
"Capital Contribution" means, with respect to any Member, the amount
and/or agreed value of money or property deemed contributed by such Member
to the Company in accordance with Section 8 hereof.
"Interest" means the ownership interest of a Member in the Company
(which shall be considered personal property for all purposes), consisting
of (i) such Member's Percentage Interest in profits, losses, allocations
and distributions, (ii) such Member's right to vote or grant or withhold
consents with respect to Company matters as provided herein or in the
Delaware Act and (iii) such Member's other rights and privileges as herein
provided.
"Majority in Interest of the Members" means Members whose Percentage
Interests aggregate to greater than fifty percent of the Percentage
Interests of all Members.
"Percentage Interest" means a Member's share of the profits and
losses of the Company and the Member's percentage right to receive
distributions of the Company's assets. The Percentage Interest of each
Member shall initially be the percentage set forth opposite such Member's
name on Schedule I hereto, as such Schedule shall be amended from time to
time in accordance with the provisions hereof. The combined Percentage
Interest of all Members shall at all times equal 100%.
Words used herein, regardless of the number and gender used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context requires, and, as
used herein, unless the context clearly requires otherwise, the words "hereof,"
"herein" and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provisions hereof.
3. PURPOSE. The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company organized under
the Delaware Act, as such business activities may be determined by the Members
from time to time.
4. OFFICES.
(a) The principal office of the Company, and such additional
offices as the Members may determine to establish, shall be located at
such place or places inside or outside the State of Delaware as the
Members may designate from time to time.
(b) The registered office of the Company in the State of Delaware
is located at 9 Loockerman Street, City of Dover, County of Kent, Delaware
19901. The registered agent of the Company for service of process at such
address is National Registered Agents, Inc.
5. MEMBERS. The name and business or residence address of each Member
of the Company are as set forth on Schedule I attached hereto, as the same may
be amended from time to time.
6. TERM. The Company shall continue until dissolved and terminated in
accordance with Section 14 of this Agreement.
7. MANAGEMENT OF THE COMPANY.
(a) The duties and powers of the Members may be exercised by a
Majority in Interest of the Members (or by any Member acting pursuant to
authority expressly delegated by a Majority in Interest of the Members).
No person shall have authority to act for or bind the Company except with
the written authorization of the Company, such authorization to be
approved by a Majority in Interest of the Members.
(b) The Members shall have the right to manage the business of the
Company, and shall have all powers and rights necessary, appropriate or
advisable to effectuate and carry out the purposes and business of the
Company. The Members may appoint, employ or otherwise contract with any
persons or entities for the transaction of the business of the Company or
the performance of services for or on behalf of the Company, and the
Members may delegate to any such person (who may be designated an officer
of the Company) or entity such authority to act on behalf of the Company
as the Members may from time to time deem appropriate.
(c) Any Member, when expressly authorized by a Majority in
Interest of the Members, may execute and file on behalf of the Company
with the Secretary of State of the State of Delaware any certificates of
correction of, or certificates of amendment to,
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the Company's certificate of formation, one or more restated or amended
and restated certificates of formation and any other certificate or
filings provided for in the Delaware Act.
(d) Notwithstanding anything to the contrary contained in any part
of this Agreement, any change of managers of the limited liability
company, including without limitation, the managers or the number of
managers in, and the exclusive management authority of, any executive
committee, shall be subject to and made in accordance with the National
Association Agreement, Professional Baseball Agreement and Major League
Rules, including without limitation Major League Rule 54 and any other
rules or requirements of the National Association or Office of the
Commissioner of Baseball, all as the same now exist or may be amended or
adopted in the future. Any such change that requires the consent of the
President of the National Association is prohibited and shall be null and
void unless such prior consent is obtained. Such consent may be withheld
at the sole and absolute discretion of the President of the National
Association. The decision of the President of the National Association
shall be made after consulting with, and shall be subject to review by,
the Office of the Commissioner of Baseball.
8. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; ADMINISTRATIVE MATTERS.
(a) The Members have contributed to the Company the cash or
property set forth in the Company's records. The Members may make
additional contributions of cash (or promissory obligations), property or
services as agreed to by a Majority in Interest of the Members from time
to time. Except as otherwise agreed by all Members, the Members shall have
no obligation to make any further capital contributions to the Company.
Persons or entities hereafter admitted as Members of the Company shall
make such contributions of cash (or promissory obligations), property or
services to the Company as shall be determined by a Majority in Interest
of the Members, at the time of each such admission.
(b) At any time that the Company has more than one Member, it is
the intention of the Members that the Company shall be taxed as a
"partnership" for federal, state, local and foreign income tax purposes,
and the following provisions shall apply:
(i) A single, separate capital account shall be maintained
for each Member. Each Member's capital account shall be credited
with the amount of money and the fair market value of property (net
of any liabilities secured by such contributed property that the
Company assumes or takes subject to) contributed by that Member to
the Company; the amount of any Company liabilities assumed by such
Member (other than in connection with a distribution of Company
property), and such Member's distributive share of Company profits
(including tax exempt income). Each Member's capital account shall
be debited with the amount of money and the fair market value of
property (net of any liabilities that such Member assumes or takes
subject to) distributed to such Member; the amount of any
liabilities of such Member assumed by the Company (other than in
connection with a contribution); and such Member's distributive
share of
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Company losses (including items that may be neither deducted nor
capitalized for federal income tax purposes).
(ii) Notwithstanding any provision of this Agreement to the
contrary, each Member's capital account shall be maintained and
adjusted in accordance with the Internal Revenue Code of 1986, as
amended (the "Internal Revenue Code"), and the regulations
thereunder (the "Regulations"), including, without limitation, (x)
the adjustments permitted or required by Internal Revenue Code
Sections 704(b) and, to the extent applicable, the principles
expressed in Internal Revenue Code Section 704(c) and (y)
adjustments required to maintain capital accounts in accordance with
the "substantial economic effect test" set forth in the Regulations
under Internal Revenue Code Section 704(b).
(iii) Any Member, including any substitute Member, who shall
receive an Interest (or whose Interest shall be increased) by means
of a transfer to him of all or a part of the Interest of another
Member, shall have a capital account that reflects the capital
account associated with the transferred Interest (or the applicable
percentage thereof in case of a transfer of a part of an Interest).
(iv) The fiscal year of the Company shall be a calendar year.
The books and records of the Company shall be maintained in
accordance with generally accepted accounting principles and Section
704(b) of the Internal Revenue Code and the Regulations.
(v) All items of Company income, gain, loss, deduction,
credit or the like shall be allocated among the Members in
accordance with their respective Percentage Interests as set forth
in Schedule I.
(c) At any time that the Company has only one Member, it is the
intention of the Member that the Company shall be disregarded for federal,
state, local and foreign income tax purposes and that all items of income,
gain, loss, deduction, credit or the like of the Company shall be treated
as items of income, gain, loss, deduction, credit or the like of the
Member.
9. ASSIGNMENTS OF COMPANY INTEREST.
(a) The Members shall amend Schedule I hereto from time to time to
reflect transfers of Interests.
(b) The right to sell, transfer, assign, gift or bequest, grant a
security interest in, pledge or encumber, or otherwise dispose of a
membership interest in the limited liability company shall be subject to
and made in accordance with Major League Rule 54. Any such sale, transfer,
assignment, gift or bequest, grant of a security interest, pledge,
encumbrance or change in members that requires the consent of the
President of the National Association is prohibited and shall be null and
void unless such prior consent is obtained. Such consent may be withheld
at the sole and absolute discretion of the President of the National
Association. The decision of the President of the National
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Association shall be made after consulting with, and shall be subject to
review by, the Office of the Commissioner of Baseball.
10. RESIGNATION. No Member shall have the right to resign from the
Company except with the consent of all of the other Members and upon such terms
and conditions as may be specifically agreed upon between such other Members and
the resigning Member. The provisions hereof with respect to distributions upon
resignation are exclusive, and no Member shall be entitled to claim any further
or different distribution upon resignation under Section 18-604 of the Delaware
Act or otherwise.
11. ADDITIONAL MEMBERS. The Members, acting by a Majority in Interest of
the Members, shall have the right to admit additional Members upon such terms
and conditions, at such time or times, and for such Capital Contributions as
shall be determined by a Majority in Interest of the Members; and in connection
with any such admission, the Members shall amend Schedule I hereof to reflect
the name and address of the additional Member and any agreed upon changes in
Percentage Interests; provided, that without the consent of a Member, such
Member's Percentage Interest in the Company shall not be reduced as a result of
the admission of a new Member.
12. DISTRIBUTIONS. Distributions of cash or other assets of the Company
shall be made at such times and in such amounts as the Members acting by a
Majority in Interest of the Members may determine. Periodically, and in any
event no less frequently than annually, the Members agree to give good faith
attention and consideration to the distribution to the Members, in accordance
with the provisions of this Section 12, of all cash and cash equivalents of the
Company not needed for the future operation of the Company's business.
Distributions shall be made to (and profits and losses shall be allocated among)
Members pro rata in accordance with their respective Percentage Interests.
13. RETURN OF CAPITAL. No Member shall have any liability for the return
of any Member's Capital Contribution, which Capital Contribution shall be
payable solely from the assets of the Company.
14. DISSOLUTION. The Company shall be dissolved and its affairs wound up
and terminated upon the first to occur of the following:
(a) The determination by a Majority in Interest of all Members to
dissolve the Company; or
(b) An event causing a dissolution of the Company under Section
18-801(a)(4) or (5) of the Delaware Act.
15. LIMITATION ON LIABILITY. The debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member of the Company
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member.
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16. STANDARD OF CARE; INDEMNIFICATION OF MEMBERS, OFFICERS, EMPLOYEES
AND AGENTS.
(a) No Member shall have any personal liability whatsoever to the
Company or any other Member on account of such Member's status as a Member
or by reason of such Member's acts or omissions in connection with the
conduct of the business of the Company; provided, however, that nothing
contained herein shall protect any Member against any liability to the
Company or the Members to which such Member would otherwise be subject by
reason of (i) any act or omission of such Member that involves actual
fraud, willful misconduct, gross negligence, or an action taken by a
Member without a reasonable basis for belief by such Member that such
action had been authorized by the Company or (ii) any transaction from
which such Member derived improper personal benefit.
(b) The Company shall indemnify and hold harmless each Member, the
affiliates of any Member and each officer (each an "Indemnified Person")
against any and all losses, claims, damages, expenses and liabilities
(including, but not limited to, any investigation, legal and other
reasonable expenses incurred in connection with, and any amounts paid in
settlement of, any action, suit, proceeding or claim) of any kind or
nature whatsoever that such Indemnified Person may at any time become
subject to or liable for by reason of the formation, operation or
termination of the Company, or the Indemnified Person's acting as a Member
under this Agreement, or the authorized actions of such Indemnified Person
in connection with the conduct of the affairs of the Company; provided,
however, that no Indemnified Person shall be entitled to indemnification
if and to the extent that the liability otherwise to be indemnified for
results from (i) any act or omission of such Indemnified Person that
involves actual fraud, willful misconduct, gross negligence or an action
taken by a Member or officer without a reasonable basis for belief by such
Member or officer that such action had been authorized by the Company or
(ii) any transaction from which such Indemnified Person derived improper
personal benefit. The indemnities provided hereunder shall survive
termination of the Company and this Agreement. Each Indemnified Person
shall have a claim against the property and assets of the Company for
payment of any indemnity amounts from time to time due hereunder, which
amounts shall be paid or properly reserved for prior to the making of
distributions by the Company to Members. Costs and expenses that are
subject to indemnification hereunder shall, at the request of any
Indemnified Person, be advanced by the Company to or on behalf of such
Indemnified Person prior to final resolution of a matter, so long as such
Indemnified Person shall have provided the Company with a written
undertaking to reimburse the Company for all amounts so advanced if it is
ultimately determined that the Indemnified Person is not entitled to
indemnification hereunder.
(c) The contract rights to indemnification and to the advancement
of expenses conferred in this Section 16 shall not be exclusive of any
other right that any person may have or hereafter acquire under any
statute, agreement, vote of the Members or otherwise.
(d) The Company may maintain insurance, at its expense, to protect
itself and any Member, employee or agent of the Company or another limited
liability company,
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corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Company would have the
power to indemnify such person against such expense, liability or loss
under the Delaware Act.
(e) The Company may, to the extent authorized from time to time by
the Members, grant rights to indemnification and to advancement of
expenses to any officer, employee or agent of the Company to the fullest
extent of the provisions of this Section 16 with respect to the
indemnification and advancement of expenses of Members of the Company.
17. AMENDMENTS. This Agreement may be amended only upon the written
consent of all Members.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
19. MEETINGS. The Members will use their reasonable efforts to meet at
least one time each year to discuss Company business.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
December 11, 2002.
GAYLORD CREATIVE GROUP, INC.,
SOLE MEMBER:
By: /s/ Carter R. Todd
---------------------------------
Name: Carter R. Todd
Title: Vice President and Secretary
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SCHEDULE I
Name and Address Percentage Interest
- ---------------------------------- ----------------------------------
Gaylord Creative Group, Inc. 100%
One Gaylord Drive
Nashville, Tennessee 37214