Attached files
Exhibit 99.6
OPERATING AGREEMENT
OF
YOUNG AVIATION, LLC
A Manager-Managed
Florida Limited Liability Company
TABLE OF CONTENTS
SECTION 1..................................................................... 3
DEFINITIONS................................................................. 3
SECTION 2..................................................................... 6
BUSINESS OF THE COMPANY; TERM;.............................................. 6
OFFICES AND REGISTERED AGENT; PROPERTY...................................... 6
SECTION 3..................................................................... 6
MANAGERS; MANAGEMENT OF THE COMPANY......................................... 6
SECTION 4..................................................................... 8
OFFICERS.................................................................... 8
SECTION 5..................................................................... 9
MEMBERS..................................................................... 9
SECTION 6.....................................................................11
MEETINGS OF MEMBERS.........................................................11
SECTION 7.....................................................................13
TRANSFERABILITY; REDEMPTIONS, WITHDRAWALS...................................13
SECTION 8.....................................................................15
CAPITAL CONTRIBUTIONS.......................................................15
SECTION 9.....................................................................16
PROFITS AND LOSSES..........................................................16
SECTION 10....................................................................19
DISTRIBUTIONS...............................................................19
SECTION 11....................................................................20
BOOKS OF ACCOUNT, FINANCIAL REPORTS, RECORDS,...............................20
FISCAL YEAR, BANKING AND ACCOUNTING DECISIONS...............................20
SECTION 12....................................................................21
DISSOLUTION; LIQUIDATION; TERMINATION.......................................21
SECTION 13....................................................................21
ALTERNATIVE DISPUTE RESOLUTION; BINDING ARBITRATION.........................21
SECTION 14....................................................................22
MISCELLANEOUS...............................................................22
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OPERATING AGREEMENT OF
YOUNG AVIATION, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") is made and
entered into this 15th day of June 2004, by and among Joel Young, Jr.
("Members") and Joel Young, Jr. ("Manager") of Young Aviation, LLC, a
manager-managed Florida limited liability company ("the Company").
The Company's Articles of Organization, attached as Schedule B, were filed
with the Secretary of State of Florida on May 10, 2004, and assigned document
number L04000035332. The Company has been assigned federal employer
identification number 20-1106849.
In consideration of the conditions contained in this Agreement, the parties
agree as follows:
SECTION 1 DEFINITIONS
Unless otherwise expressly provided or the context otherwise requires, the
following terms used in this Agreement have the following meanings:
1.1 "Act" means Chapter 608, Florida Statutes, the Florida Limited
Liability Company Act in effect in the State of Florida, as amended from time to
time.
1.2 "Affiliate" means an individual or entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, another person, and includes: (a) a spouse, ancestor or
lineal descendant of an individual; (b) an officer, director, shareholder or
partner of a person which is not an individual, and a spouse, ancestor or lineal
descendant of any such person; and (c) any individual or entity controlled by
any individual or entity designated above.
1.3 "Agreement" means this Operating Agreement and Schedule A as amended to
reflect the name, address and Capital Contribution of any additional Member and
any agreed to changes in the percentage of Interests.
1.4 "Applicable Federal Rate" means the lowest rate of interest permitted
to be charged with respect to the subject transaction under the Code. If more
than one section of the Code is applicable, then the lowest rate that maybe
charged without the imputation of interest or the creation of a gift will be the
Applicable Federal Rate for that transaction.
1.5 "Capital Account" means the account established for each Member
pursuant to 8.3 of this Agreement. Each Capital Account will consist of the
Member's initial Capital Contributions and will be (a) increased by the amount
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of Net Profits; and (b) reduced by the amount of Net Losses and Distributable
Cash distributed to the Member. Members' Capital Accounts will be determined and
maintained in accordance with Internal Revenue Code Section 1.704.
1.6 "Capital Contribution" means the total amount of capital contributed to
the Company's Capital by each Member pursuant to Subsection 8.1.
1.7 "Code" means the Internal Revenue Code of 1986, as amended from time to
time or corresponding provisions of subsequent laws.
1.8 "Company" means YOUNG AVIATION, LLC. The Company will be taxed as a
partnership for federal, state, local and foreign income tax purposes and,
therefore, whenever it may be necessary to apply federal income tax law to the
Company, including, without limitation, Subchapter K of the Code, and the
regulations promulgated thereunder, the term "Company" shall mean "partnership".
1.9 "Distributable Cash" means the cash on hand and in banks at the end of
any fiscal period, less a reasonable allowance of cash for working capital,
contingencies and anticipated obligations of the Company. Any allowance, made in
the Manager's sole discretion, shall not include any cash reserved in a prior
period of computation.
1.10 "Effective Date" means the date the Articles of Organization of the
Company were filed with the Florida Secretary of State.
1.11 "Forced Transfer" means a Transfer of any part of an Interest in
violation of this Agreement, which the Company is, nevertheless, required by law
to recognize, or any other Transfer that is deemed by this Agreement to be a
Forced Transfer.
1.12 "Interest" or "Member's Interest" means the ownership interest in
Company capital, profits, losses, and the Company generally, including all of
rights and benefits to which the holder of such an interest may be entitled as
provided in this Agreement and in the Act, together with the obligations of the
holder to comply with all the terms and provisions of this Agreement and of the
Act.
1.13 "Interest Holder" means the transferee of a Member's Interest. An
Interest Holder may receive the share of profits, losses and distributable cash
to which the transferring Member would have been entitled; however, an Interest
Holder shall have no right to participate in the management of the business and
affairs of the Company or to become a Member unless all of the Members consent
to admission.
1.14 "Liquidation Proceeds" means all of the cash and other property held
by the Company at the time of the happening of an event causing dissolution of
the Company, and all cash and property received by the Company thereafter,
irrespective of whether such cash was or otherwise would have been considered
Distributable Cash under the terms of this Agreement.
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1.15 "Majority in Interest" or "Majority of the Members" means one or more
Members who collectively own more than 50% of the then current percentage
Interest in profits of the Company.
1.16 "Manager" or "Managers" means Joel Young, Jr. and/or any person
elected as a Manager as provided in the Articles of Organization or this
Agreement.
1.17 "Manager-Managed" means that no Member, in its capacity as a Member,
will have any authority to bind or act for the Company and shall not have any
right to participate in the management or affairs of the Company, including, the
right to vote on, consent to or otherwise participate in any matter unless
otherwise provided for in this Agreement or the Act. Day to day operations of
the Company will be conducted by the Officers of the Company (as more
specifically provided for in Section 4 of this Agreement).
1.18 "Members" means the persons designated on Schedule A of this
Agreement, their successors and any other person admitted to the Company
pursuant to this Agreement.
1.19 "Person" means any natural person, corporation, partnership, joint
venture, association, limited liability company, or other business or legal
entity.
1.20 "Profits" and "Losses" of the Company mean for each taxable year of
the Company (or other period for which profit or loss must be computed), the
Company's taxable income or loss determined in accordance with the Code.
1.21 "Tax Matters Member" or "TMM" means Joel Young, Jr., or his successor,
as defined in Code Section 6231(a)(7).
1.22 "Transfer" means, any voluntary or involuntary sale, pledge,
hypothecation, disposition or other transaction that conveys the economic
interest of an Interest Holder to any person other than the present owner or
confers the rights and powers of a Member on any other person, including,
without limitation, a disposition by will or intestacy, a distribution from a
trust, and the filing of a petition, whether voluntary or involuntary, in
bankruptcy or other proceeding for relief from debt; and means, as a verb,
voluntarily or involuntarily to make a Transfer.
1.23 "Transferor" means a person who makes a Transfer; and "Transferee"
means a person who obtains an economic interest in the Interest Transferred, or
who obtains the rights and powers of a Member, from the Transferor, including
the estate of a deceased or bankrupt Member, the successor-in-interest to a
Member that has dissolved, liquidated or terminated, the estate of a deceased or
bankrupt Interest Holder and a distributee from a trust.
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SECTION 2
BUSINESS OF THE COMPANY; TERM;
OFFICES AND REGISTERED AGENT; PROPERTY
2.1 NAME. The Company shall conduct business under the name of YOUNG
AVIATION, LLC unless the Managers deem it to be in the best interests of the
Company to change the name.
2.2 PURPOSE. The purpose of the Company is to conduct any lawful business
for which limited liability companies may be organized and to carry out and
exercise all powers necessary or reasonably connected with that purpose.
2.3 TERM. The Company will commence its existence on the Effective Date and
exist in perpetuity, unless dissolved as provided in this Agreement or in the
Act.
2.4 CONTINUATION OF COMPANY. If any Member ceases to be a Member and if
there is at least one remaining Member, then the business of the Company must be
continued by the remaining Member(s), and all of the Member(s) hereby consent to
such continuation of the Company.
2.5 BUSINESS OFFICES AND REGISTERED AGENT. The initial principal place of
business of the Company is 7918 S.W. 5th Street, North Lauderdale, FL 33068. The
registered agent for the Company is Joel Young, Jr. with his address at 7918
S.W. 5th Street, North Lauderdale, FL 33068. The Managers may change the
principal place of business of the Company, from time to time; and, in such
event, the Managers must notify the Members in writing within thirty (30) days
of the effective date of such change. The Managers may, in their discretion,
establish additional places of business of the Company.
2.6 COMPANY PROPERTY. No Member will have the right to require partition of
the property or to compel any sale or appraisal of the Company's assets or any
sale of a deceased Member's interest in the Company's assets, notwithstanding
any provision of law to the contrary.
SECTION 3
MANAGERS; MANAGEMENT OF THE COMPANY
3.1 MANAGEMENT AND CONTROL OF COMPANY. The Company shall be manager-
managed. All Managers must be Members of the Company. Subject to the delegation
of rights and powers provided in this Agreement, the Managers shall have the
sole 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. No Member shall have any authority to act
for or bind the Company, but shall only have the right to vote on actions
provided in this Agreement or those actions specified to be voted on or approved
by the Members. At any time there is only one Member, any and all action
provided in this Agreement or to be taken or approved by the Members shall be
taken or approved by the sole Member.
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3.2 NUMBER, APPOINTMENT AND TERM. The number ofManagers may be fixed from
time to time by a Majority in Interest of the Members but there shall be no less
than one (1) Manager. Managers will serve for a term of one year, subject to
reappointment by a Majority in Interest of the Members.
3.3 APPOINTMENT OF OFFICERS. The Company may appoint certain officers as
provided for in Section 4. The Managers may appoint, employ or otherwise
contract with such other persons or entities for the transaction of the business
of the Company or the performance of services for or on behalf of the Company,
as they determine in their sole discretion.
3.4 VACANCY. A vacancy in the office of Manager arising from any cause,
maybe filled for the unexpired portion of the term by written consent of a
Majority in Interest of the Members.
3.5 RESIGNATION. Any Manager may resign at any time by giving thirty (30)
days written notice to the Members.
3.6 REMOVAL OF A MANAGER. A Majority Interest of Members may remove a
Manager at any time, with Cause, at a special meeting of the Members called for
that purpose. Such removal of a Manager shall be without prejudice and shall not
affect the Manager's rights as a Member, if any.
"Cause" for the purposes of this Section shall mean: (i) if a Manager was
grossly negligent in performing a material obligation as a Manager under this
Agreement; (ii) if a Manager breached a material obligation under this Agreement
and failed to cure the breach within thirty (30) calendar days or, provided that
if the material breach is of such a nature that the Manager cannot completely
cure such breach within the thirty (30) day period but the Manager uses its best
efforts to cure such breach, the Manager shall have an additional thirty (30)
calendar days to cure such breach; (iii) if a Manager committed a fraud, theft
or conversion of the Company's assets; (iv) the commencement of bankruptcy,
reorganization or other proceedings for relief from debt, or liquidation
proceedings, state or federal, by the Manager; or (v) the dissolution of the
Manager.
3.7 LIMITATION ON LIABILITY. The debts, obligations and liabilities of the
Company, whether arising in tort, contract or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Manager or officer of
the Company shall be obligated personally for any such debt, obligation or
liability of the Company solely by reasons of being a Manager or an officer.
3.8 DUTIES AND OBLIGATIONS OF MANAGER. The Managers must take all actions
which may be necessary or appropriate (a) for the continuation of the Company's
valid existence as a limited liability company under the laws of the State of
Florida, and (b) for the accomplishment of the Company's purposes in accordance
with the provisions of this Agreement and applicable laws and regulations. The
Managers are under a fiduciary duty to conduct the affairs of the Company in the
best interests of the Company and of the Members, including the safekeeping and
use of all Company property and the use for the exclusive benefit of the
Company.
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3.8 TAX MATTER MEMBER (TMM). Joel Young, Jr., or any other Manager that the
Members may appoint from time to time, will serve as the TMM for the Company.
The TMM will act as a liaison between the Company and the Internal Revenue
Service in connection with all administrative and judicial proceedings involving
tax controversies of the Company, and must assume all the rights and duties of a
TMM as set forth in the Code and Treasury Regulations promulgated under the
Code.
3.9 COMPENSATION. Notwithstanding any provision in this Agreement to the
contrary, any amounts paid to Members (other that Distributable Cash),
Officers, or Managers shall be determined only by a Majority in Interest of the
Members.
SECTION 4
OFFICERS
4.1 OFFICERS. The Company may have certain officers, which may consist of
any officers as the Managers deem fit. These officers shall be vested with such
authority as provided in Section 4.4 below.
4.2 APPOINTMENT AND TERM OF OFFICE. The officers of the Company shall be
appointed at such times as determined by the Managers and each officer shall
hold office until his or her successor shall have been duly elected and shall
have qualified or until his or her death or until he or she shall resign or
shall have been removed from office in the manner provided in Section 4.3.
4.3 REMOVAL. Any officer appointed by the Managers under Section 4.2 may be
removed by the Managers at any time, with or without cause, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Appointment of an officer or agent shall not of itself create
contractual rights.
4.4 AUTHORITY. Each Officer shall be vested with specific authority (as set
forth below) as provided for by the Managers. Each Officer shall serve at the
pleasure of, and at all applicable times report to, the Managers of the Company.
Notwithstanding any provision to the contrary herein, no Officer shall have the
authority, without the written consent of the Managers, to do the following:
A. Employ or to contract with (as employees, agents, or independent
contractors), such persons, firms or entities which aggregate contract
value exceeds $200,000 per annum;
B. Incur indebtedness on behalf of the Company in excess of $100,000;
C. Do any act in contravention of this Agreement;
D. Do any act which would make it impossible to carry on the Business of
the Company;
E. Confess a judgment against the Company;
F. Execute or deliver any general assignment for the benefit of creditors
of the Company or file a petition in bankruptcy for or on behalf of
the Company;
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G. Assign rights in specific Company property for other than a Company
purpose;
H. Knowingly or willfully do any act which would cause the Company to
become an association taxable as a corporation;
I. Enter into any agreements to sell any assets (or Membership Interests)
of the Company; J. Take any steps to dissolve the Company; or
K. Admit new Members to the Company.
4.5 PRESIDENT. It is the intention of the Managers that Joel Young shall
serve as the President of the Company until his or her removal, death or
resignation. The President shall supervise and control all day-to-day business
and affairs of the Company and perform all duties incident to the office of
President and any other duties prescribed by the Managers from time to time.
Except as otherwise prohibited in Section 4.4, the President is expressly
authorized to:
A. Procure and maintain with responsible companies such insurance as may
be advisable in such amounts and covering such risks as are deemed
appropriate;
B. Take and hold assets of the Company in the Company's name;
C. Execute and deliver on behalf of and in the name of the Company all
instruments necessary or incidental to the conduct of the Company's
day to day Business and operations;
D. Hire and supervise employees and other agents and contractors as and
where appropriate (subject to Section 4.4);
E. Protect and preserve the assets of the Company; and
F. Open Company bank accounts in which all Company funds shall be
deposited and from which payments shall be made.
4.6 VICE-PRESIDENT. It is the intention of the Managers that N/A shall
serve as the Vice President of the Company until his removal, death or
resignation. The Vice President shall assist the President in carrying out the
President's duties and shall perform such other duties as are delegated or
assigned by the President from time to time, or prescribed by the Managers from
time to time.
SECTION 5
MEMBERS
5.1 NAMES AND ADDRESSES OF MEMBERS. The names and addresses of the Members
are set forth on Schedule A to this Agreement.
5.2 RESIGNATION OR WITHDRAWAL. No Member shall have the right to resign or
withdraw from the Company except as set forth in Section 7.
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5.3 ADDITIONAL MEMBERS. The Managers shall have the right to admit
additional Members upon (i) prior written approval of a Majority in Interest of
the Members; and (ii) upon terms and conditions, at such time, and for such
Capital Contributions as determined by the Managers. Schedule A shall be amended
to reflect the name, address and Capital Contribution of any additional Member
and any agreed to changes in the percentage of Interests.
5.4 ACCEPTANCE OF TERMS. Each person who becomes a Member in the Company
ratifies and agrees to be bound by the terms of this Agreement.
5.5 RIGHT TO INDEMNIFICATION. Each person (including successors, assigns,
heirs, executors, or administrators who (a) is or was a Member; (b) who is or
was a Manager of the Company; or (c) who is or was serving at the request of the
Company in the position of a director, officer, trustee, partner, agent, or
employee of another corporation, partnership, joint venture, trust or other
enterprise, must be indemnified by the Company as of right to the fullest extent
permitted or authorized by the Act or future legislation or by current or future
judicial or administrative decision. Said persons shall be indemnified against
all fines, liabilities, settlements, losses, damages, costs and expenses,
including attorneys' fees, asserted against him or incurred by him in his
capacity as a Member, Manager, director, officer, trustee, partner, agent or
employee, or arising out of his status as a Member, Manager, director, officer,
trustee, partner, agent or employee. In the case of future legislation or
decision, indemnification applies only to the extent that it permits the Company
to provide broader indemnification rights than permitted prior to the
legislation or decision.
The foregoing right of indemnification is not exclusive of the rights to
which those seeking indemnification may be entitled. The Company may maintain
insurance, at its expense, to protect itself and the indemnified persons against
all fines, liabilities, costs and expenses, including attorney's fees, whether
or not the Company would have the legal power to indemnify him directly against
such liability. Notwithstanding the foregoing provisions of this Section, no
Member or Interest Holder is entitled to be indemnified or otherwise protected
against the loss of its Capital Contribution or other investment in the Company.
5.6 DEATH OF AN INDIVIDUAL MEMBER. Upon the death of an individual Member,
the deceased Member will cease to be a Member. The estate of the deceased Member
may be admitted to the Company as a Member upon compliance with Subsection 5.3.
Until it is so admitted, the estate of the deceased Member will only be an
Interest Holder.
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5.7 INCAPACITY OF AN INDIVIDUAL MEMBER. Upon the incapacity of an
individual Member, the legal representative of the incapacitated Member may
exercise that Member's rights as a Member for so long as the incapacity
continues, but in no event longer than 90 days; and once that Member is no
longer incapacitated, then he or she may once again exercise his or her rights
as a Member. If the Member remains incapacitated for 90 days, then the
incapacitated Member will be cease to be a Member on the 91 st day after the
commencement of his or her incapacity and, thereafter will be only an Interest
Holder. An individual Member will be deemed to be "incapacitated" at such time
as there is either (a) a currently applicable court order adjudicating that
individual to be legally incapacitated to act on his or her own behalf with
regard to financial matters, or appointing a conservator or guardian to act for
that individual with regard to financial matters, or (b) duly executed,
witnessed and acknowledged written certificates of two physicians who are
licensed to practice medicine in any state of the United States, one of whom
must be the physician with primary responsibility for the care and treatment of
the individual, if there is one. Each such certificate must state that such
doctor has examined that individual and has concluded that the individual was,
as of the date of the certificate, unable to manage his or her own financial
affairs with judgment and reason, due to a physical or mental condition.
5.8 DISSOLUTION, LIQUIDATION OR TERMINATION OF AN ENTITY MEMBER. A Member
that is an entity ceases to be a Member upon the date on which it dissolves,
liquidates, terminates, or otherwise makes a distribution of all of its
Interest. The Transferee of an Interest from such an entity may be admitted to
the Company as a Member upon compliance with Subsection 5.3. Until it is so
admitted, the Transferee of an Interest from such an entity will only be an
Interest Holder.
5.9 SECURITIES LAW REGISTRATION. The Members understand that the Membership
Interests evidenced by this Agreement have not been registered under the
Securities Act of 1933, the Florida Securities Act or any other state securities
laws (the "Securities Acts") in reliance upon exemptions from registration. The
Members also understand that the interest being acquired must be held
indefinitely, unless it is later registered under the Securities Act of 1933 and
applicable state securities laws, or unless exemptions from registration are
otherwise available, and that the Company has no obligation to register the
interest. The Members agree that the interest will not be offered, sold,
transferred, pledged, or otherwise disposed of without registration under the
Securities Act of 1933 and applicable state securities laws or an opinion of
counsel acceptable to the Company that such registration is not required.
SECTION 6
MEETINGS OF MEMBERS
6.1 ANNUAL MEETING. An annual meeting of Members shall be held within three
(3) months after the close of the fiscal year on a date and at a time and place
determined by the Managers. At the annual meeting, the Members shall elect
Managers and transact business as may be properly brought before the meeting.
6.2 SPECIAL MEETING. A special meeting of the Members may be called at any
time by the Managers at the request in writing of a Majority in Interest of the
Members. Any request for a special meeting shall state the purposes of the
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proposed meeting and any business transacted at a any special meeting shall be
confined to the purposes stated in the notice.
6.3 WRITTEN NOTICE. The Managers shall provide written notice of the time,
place and purpose of every meeting of Members (and if other than a annual
meeting, the person(s) at whose discretion the meeting in being called) to each
Member. Notice shall be delivered to each Member not less than ten (10) and no
more than (60) days prior to the date set for the meeting. Notice may be given
either personally or by mailing by first class mail to each Member at his
address appearing in the books of the Company or at such other address supplied
by him in writing to the Managers of the Company.
6.4 ADJOURNMENTS. All notices given to an original meeting shall extend to
any adjournments. Any business that might have been transacted at the original
meeting may be transacted at any adjournment. No notice of an adjourned meeting
is required if an announcement of the time and place of the adjourned meeting is
made at the original meeting.
6.5 WAIVER. A written waiver of notice setting forth the purposes of the
meeting and signed by the person entitled to such notice, whether before or
after the time of the meeting, shall be deemed equivalent to giving notice. A
Member's attendance at a meeting, either in person or by proxy without
protesting the lack of notice, shall constitute a waiver of notice of said
Member.
6.6 QUORUM. The holders of a Majority in Interests of Members present in
person or represented by proxy, shall be constitute a quorum. If, however, a
quorum is not present or represented at any meeting of Members, the Members
entitled to vote, present or represented by proxy, shall have power to adjourn
the meeting without notice until a quorum is attained. At any adjourned meeting
subject to this Section, in which a quorum is present, any business may be
transacted which might have been transacted at the original meeting. When a
quorum is present to organize a meeting, the quorum shall not be deemed broken
by the subsequent withdrawal of any Member(s).
6.7 VOTING RIGHTS. Every Member shall be entitled to vote in accordance
with his Membership Interest in the Company held by him on the record date fixed
for said meeting. Members may vote either in person or by proxy. Any Company
action must be authorized by a Majority in Interest of the votes cast by the
Members entitled to vote except as otherwise provided by the Act, the Articles
of Organization, or this Agreement.
6.8 PROXIES. Every proxy must be signed by the Member entitled to vote or
by his duly authorized attorney-in-fact and shall be valid only if filed with
the Managers prior to the commencement of voting on the matter represented by
the proxy. No proxy shall be valid after the expiration of eleven (11) months
from the date of its execution unless otherwise expressly provided for in the
proxy. Every proxy shall be revocable at the pleasure of the executing Member
except as otherwise provided by the Act. Unless the terms of the proxy provide
for a specific revocation date, and except as otherwise provided for by statute,
revocation of a proxy shall not be effective unless and until such revocation is
filed with the Managers prior to the voting of the proxy.
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6.9 PRESIDING MANAGER. A Manager shall preside at all meetings of Members,
or if not present, by a Member chosen by a Majority in Interest of the Members
at the meeting. The Manager or person presiding at the meeting may appoint any
person to act as secretary of the meeting.
SECTION 7
TRANSFERABILITY; REDEMPTIONS, WITHDRAWALS
7.1 RESTRICTIONS ON RESIGNATION AND TRANSFER. Except as otherwise permitted
by this Section 7, no Member may withdraw from the Company or Transfer all or
any portion of its Membership Interest, without the prior written consent of the
Managers. Any withdrawal or Transfer in violation of this Agreement is void AB
INITIO; however, if the Company is, nevertheless, required by law to recognize
such a Transfer, then that Transfer is deemed a "Forced Transfer" and will be
subject to a Mandatory Redemption as set forth in Section 7.2 below.
In the event of a Forced Transfer, the transferring Member shall indemnify
the Company and the remaining Members against any and all loss, damage, or
expense (including, without limitation, tax liabilities or loss of tax benefits)
arising directly or indirectly as a result of any Transfer or purported Transfer
in violation of this Section 7. The Company shall not be required to make any
Distribution otherwise provided for in this Agreement with respect to any
transferred Membership Interest until the redemption requirements of this
Section 7 are met. The Company shall have the right to withhold payment of any
Distribution otherwise payable on account of the interest conveyed until the
amount, if any, of any damages, costs, or losses (including without limitation
attorneys' fees) incurred by the Company or its Members as a result of or in
connection with the Transfer has been determined by the Company and paid by the
transferee, and the Company may apply such amount withheld toward any debt,
liability or obligation owed to the Company or the other Members.
7.2 MANDATORY REDEMPTION.
A. REDEMPTION EVENT. For purposes of this Agreement, "Redemption Event"
means with respect to any Member, the first to occur of:
i. the unpermitted Transfer of a Membership Interest;
ii. the death of a Member (See Section 7.6);
iii. the commencement of bankruptcy, reorganization or other
proceedings for relief from debt, or liquidation proceedings,
state or federal, by a Member;
iv. the appointment of a bankruptcy or similar trustee, receiver,
conservator, custodian or other judicial representative for the
Member or the Membership Interest;
v. the attachment of, execution against, levy upon, or other seizure
of the Membership Interest;
vi. an assignment by a Member of its Membership Interest for the
benefit of creditors;
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vii. the dissolution of an entity Member;
vii. a Forced Transfer of a Membership Interest; or
ix. the failure or refusal of a Member to otherwise abide by the
material terms of this Agreement. The Member with respect to whom
a Redemption Event occurs shall cease to be a Member and shall
have no further right to participate in the Company's Business,
profits, losses or distributions.
B. REDEMPTION PRICE. The "Redemption Price" of the Member's Membership
Interest subject to Mandatory Redemption shall be an amount equal to
the "Net Equity" of the Membership Interest, and such Mandatory
Redemption shall be completed in accordance with Section 7.4 below.
C. PROCEDURE. Upon the occurrence of a Redemption Event, the Member
subject to a Redemption Event, or a legal representative of a Member,
shall notify the Company immediately upon such event. The Member (or
its legal representative) agrees to sell such Membership Interest to
the Company at the Redemption Price and the Company agrees to purchase
such Membership Interest upon such Redemption Event at the Redemption
Price. The Company shall make arrangements to purchase and close (in
accordance with the Payment Terms set forth below) on such Membership
Interest within thirty (30) days of such Notice.
7.3 PERMISSIBLE WITHDRAWALS. Notwithstanding anything to the contrary in
this Agreement, a Member may withdraw all or any part of its Membership Interest
only in the manner and extent as provided for in this Section 7.3:
A. At any time on or after the date which is five (5) years from the date
of this Agreement, any Member (the "Withdrawing Member") shall be
permitted to give written notice to the Managers (the "Withdrawal
Notice"), which notice shall state that such Member intends to
withdraw as a Member on a specified date, such date not to be earlier
than the ninetieth (90th) day following the day of such Withdrawal
Notice.
B. The Company shall continue in existence following the permitted
withdrawal of a Member pursuant to Section 7.3(A) above. The
Withdrawing Member shall cease to be a Member as of the date of its
withdrawal, and shall thereafter have no right to participate in the
Company's Business, profits, losses or distributions.
C. Unless otherwise agreed to by the parties, the price for a Withdrawing
Member's Membership Interest shall be an amount equal to the Net
Equity of such Membership Interest (as defined in Section 7.4 below),
and shall be paid in accordance with Section 7.5 below.
14
7.4 NET EQUITY. Net Equity of a Member's Interest shall be an amount that
would be distributed to such Member (as if a Company Liquidation occurred at the
time of such Mandatory Redemption) in liquidation of its Membership Interest
pursuant to Section 12 of this Agreement. The Net Equity of the Member's
Membership Interest shall be determined, without audit or certification, from
the books and records of the Company by the accounting firm regularly employed
by the Company, and the amount of such Net Equity shall be disclosed to the
Company and each of the Members by written notice. The Net Equity determination
of such accountant shall be final and binding in the absence of a showing of
gross negligence and willful misconduct.
7.5 PAYMENT TERMS. Unless otherwise agreed to by the parties, the closing
of a Mandatory Redemption shall be paid to the Member, the Member's legal
representative, or another representative in the case of a Forced Transfer as
follows:
A. 10% in cash at the closing; and
B the balance to be paid within one (1) year from closing, and quarterly
payments shall include interest at the Applicable Federal Rate.
7.6 DEATH OF MEMBER. Notwithstanding anything in this Agreement to the
contrary, upon the death of a Member, the Member's estate or legal
representative shall have the option of allowing such Interest to be subject to
a Redemption Event in accordance with Section 7.2 herein or direct to the
Company to allow (which the Company hereby consents to), the Interest to pass to
such Member's heirs, designees or personal representatives. Such transferee may
become a Member of the Company subject to the unanimous written consent of the
Managers and the execution of any and all documents which the Managers deem
necessary in order for the transferee Member to become obligated by all terms
and conditions of this Agreement.
7.7 COSTS AND EXPENSES. All costs and expenses incurred by the Company in
connection with the assignment of the Member's interest, including any filing
fees, publishing costs, and the fees and disbursements of counsel, shall be paid
by the transferor.
SECTION 8
CAPITAL CONTRIBUTIONS
8.1 CAPITAL CONTRIBUTIONS. In exchange for their membership interests, the
Members have contributed to the Company their interests in the cash and other
property as set forth on Schedule A.
8.2 CAPITAL ACCOUNT. The Managers must maintain a Capital Account for each
Member throughout the term of the Company. No Member or Interest Holder is
entitled to withdraw any part of his Capital Account or to receive any
distributions from the Company except as expressly provided for in this
Agreement.
15
8.3 ADDITIONAL CONTRIBUTIONS. Members shall have no right or obligation to
make any further capital contributions to the Company unless otherwise agreed to
by written consent of all Members.
8.4 DISTRIBUTION OF ASSETS. Any assets of the Company shall be distributed
to the Members in kind and in proportion to each Member's proportionate Interest
of record as of the date of the distribution. The Capital Accounts of the
Members will be adjusted to reflect the difference between the fair market value
of the assets on the date of the distribution and the basis of the Company in
such assets.
8.5 ADMISSION OF ADDITIONAL MEMBERS. Upon prior written approval of
aMajorityin Interest of the Members and upon terms and conditions for Capital
Contributions as determined by the Managers, persons hereafter admitted as
Members of the Company shall make such contributions of cash, property at fair
market value, services rendered, a promissory note or other obligation to the
Company as determined and approved by the Managers at the time of each
admission.
8.6 INTEREST. No interest shall be paid on the Capital Account of any
Member.
8.7 TAXATION. The Company will be taxed as a partnership for federal,
state, local and foreign income tax purposes. At any time the Company has only
one Member, the Company shall be disregarded for federal, state, local and
foreign income tax purposes and 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.
8.8 TAX ELECTION. In the event of (i) transfer of a Member's interest; (ii)
upon the death of a Member; or (iii) in the event of the distribution of Company
property to any party hereto, the Company may, at the discretion of the Managers
file an election in accordance with the Code Section 754 to cause the basis of
the Company Property to be adjusted for Federal income tax purposes as provided
for in the Code Sections 734 and 743.
8.10 LIMITED LIABILITY OF MEMBERS; GUARANTIES. The liability of Members is
limited to the Capital Contribution with respect to their Interests. No Member
shall be personally liable for any obligations of the Company. The debts,
obligations and liabilities of the Company, whether arising in tort, contract 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 reasons of being a
Member.
SECTION 9
PROFITS AND LOSSES
9.1 DETERMINATION OF PROFITS AND LOSSES. The Net Profits and Net Losses of
the Company shall be the Net Profits and Net Losses of the Company as determined
for federal income tax purposes.
16
9.2 ALLOCATION OF NET PROFITS AND LOSSES. The Net Profits and Net Losses of
the Company and each item of income, gain, loss, deduction or credit entering
into the computation thereof, shall be allocated to the Members in the same
proportions that they share in distributions of Cash Flow pursuant to Section
10, or if there is no Cash Flow, that they would have shared if there had been
Cash Flow.
9.3 SPECIAL ALLOCATIONS TO CAPITAL ACCOUNTS. References in this Agreement
to "Reg. Sec." are to the regulations promulgated by the United States Treasury
to the Code. The terms "minimum gain", "minimum gain chargeback", "qualified
income offset", "nonrecourse deduction" and "nonrecourse liability" are to be
interpreted consistent with the definitions and use of such terms in Reg. Sec.
1.704-2 and Reg. Sec. 1.704-1. "Nonrecourse liability" means any liability with
respect to which no Member bears the risk of loss under Code Section 752. The
following special allocations shall be made in the following order:
A. Except as otherwise set forth in Reg. Sec. 1.704-2(f), if there is a
net decrease in minimum gain, during the fiscal year of the Company,
each Member, shall be specially allocated items of gross income and
gain for such fiscal year (and, if necessary, subsequent fiscal years)
in an mount equal to that Member's share of the net decrease of
minimum gain determined in accordance with Reg. Sec. 1.704-2(g).
Allocations in accordance with this Section shall be made first from
the disposition of Company assets subject to nonrecourse liabilities,
to the extent of the minimum gain attributable to those assets, and
thereafter, from a pro-rata portion of the Company's other items of
income and gain for the taxable year. This Section is intended to
comply with the minimum gain chargeback requirement of Reg. Sec.
1.704-2(f).
B. Except as otherwise set forth in Reg. Sec. 1.704-2(i)(4), if there is
a net decrease in a Member's nonrecourse liability minimum gain
attributable to Members' nonrecourse liabilities during any fiscal
year, each Member who has a share of the Member nonrecourse liability
minimum gain attributable to Member nonrecourse liability shall be
specially allocated items of gross income and gain for such fiscal
year (and, if necessary, subsequent fiscal years)in an amount equal to
that Member's share of the net decrease in Members' nonrecourse debt
minimum gain attributable to such Member nonrecourse debt. Allocations
pursuant to this Section shall be made first from gain recognized from
the disposition of Company assets subject to Member nonrecourse
liabilities to the extent of Member minimum gain attributable to those
assets, and thereafter, from a pro-rata portion of the Company's other
items of income and gain for the fiscal year. This section is intended
to comply with the minimum gain chargeback requirements of Reg. Sec.
1.704-2(i).
C. A Member who unexpectedly receives an adjustment, allocation or
distribution described in (4), (5) or (6) of Reg. Sec.
1.704-l(b)(2)(ii)(d) will be allocated items of income and gain in an
amount and manner sufficient to eliminate such deficit balance as
17
quickly as possible. An allocation shall be made pursuant to this
Section and if and to the extent a Member would have a deficit in his
adjusted Capital Account after all other allocations provided for in
this Section 8.3 were made as if this paragraph were not in the
agreement.
D. Nonrecourse deductions shall be allocated among the Members in the
same proportion in which they share the Cash Flow of the Company.
E. Any nonrecourse deduction shall be allocated to any Member who bears
the economic risk of loss with respect to the Member nonrecourse
liability to which such deduction is attributable.
9.4 BUILT-IN GAIN OR LOSS. Company gain or loss realized with respect to
property, other than money, contributed to the Company by a Member shall be
shared among the Members pursuant to Code section 704(c) and regulations to be
promulgated thereunder so as to take account of the difference between the
Company basis and the fair market value of the property at the time of the
contribution ("built-in gain or loss"). Such built-in gain or loss shall be
allocated to the contributing Member upon the disposition of the property.
9.5 EFFECT OF ADMISSION OF A NEW MEMBER. No new Member shall be entitled to
any retroactive allocation of losses, income or expense deductions incurred by
the Company. In accordance with the provisions of Section 706(d) of the Code and
the Treasury Regulations promulgated thereunder, the Managers may, at the time a
new 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 a new Member for that portion of the Company's tax year during
which such Member was an Member.
9.6 ACCOUNTING PRINCIPLES. The Net Profits and Net Losses of the Company
shall be determined in accordance with accounting principles applied on a
consistent basis using the method of accounting recommended by the Company's
accountants. It is intended that the Company will elect those accounting methods
which provide the Company with the greatest tax benefits.
9.7 INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS. No Member shall be
entitled to (i) interest on its Capital Contribution; or (ii) return of its
Capital Contribution except as otherwise specifically provided for in this
Agreement.
9.8 RETURNS AND OTHER TAX ELECTIONS. The Managers 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. Copies of such
returns, or pertinent information (Schedule K-l), shall be furnished to the
Members within ninety (90) days after the end of the Company's Fiscal Year. All
elections permitted to be made by the Company under federal or state laws shall
be made by the Managers in their sole discretion.
18
SECTION 10
DISTRIBUTIONS
10.1 DISTRIBUTIONS TO MEMBERS. The Company shall distribute to the Members
from time to time, the net cash of the Company which is not required for the
operation or reasonable working capital requirements of the Company. The
availability of Distributable Cash shall be determined by the Managers as of the
last day of each calendar year and distribution must be made no later than April
1 of the following calendar year subject to the limitations set forth in Section
10.2.
10.2 LIMITATION ON DISTRIBUTIONS. A Member may not receive a Distribution
of Distributable Cash to the extent that, after giving effect to the
Distribution, all liabilities of the Company, other than liabilities to Members
on account of their Membership Interest, would exceed the fair market value of
the Company's assets or if after the distribution, the Company would be
insolvent.
10.3 ALLOCATION OF DISTRIBUTABLE CASH. Distributions of Distributable Cash
will be made to and among the Members in proportion to their Interests of record
as of the date of the distribution.
10.4 DISTRIBUTIONS IN KIND. The Managers may not compel any Member, except
in the case of a Distribution to the Members in proportion to their Ownership
Interests, to accept a Distribution in property other than cash, except upon
Liquidation.
10.5 LIQUIDATION PROCEEDS. Upon the dissolution of the Company, the
Liquidation Proceeds shall be applied and distributed pursuant to Section
608.444 of the Act as follows:
A. First, to creditors, including Members who are creditors, to the
extent permitted by law in satisfaction of liabilities of the Company,
whether by payment or establishment of reserves, other than
liabilities for Distributions to Members.
B. Second, to the payment of the expenses of the sale or other
disposition of the Company's assets;
C. Third, to the Members or Interest Holders with positive balances in
their Capital Accounts as of the date of the distribution.
19
If the Company makes distributions in kind, then the Members or Interest
Holders that receive a distribution of property subject to an indebtedness will
be severally liable (as among themselves, but not for the benefit of others) for
a share of the indebtedness proportionate to the share of the property received.
No Member or Interest Holder will be deemed to have assumed any liability on any
indebtedness secured by property distributed to the Member or Interest Holder
for which the Member or Interest Holder is not liable under the terms of the
instrument creating the indebtedness; but rather, the liability of each Member
or Interest Holder to other Members or Interest Holders for indebtedness secured
by property distributed to it will be limited to the value of its interest in
the property. Notwithstanding anything to the contrary in the preceding portions
of this Section, indebtedness secured by property distributed to Members or
Interest Holders in kind need not be discharged out of the Liquidation Proceeds.
SECTION 11
BOOKS OF ACCOUNT, FINANCIAL REPORTS, RECORDS,
FISCAL YEAR, BANKING AND ACCOUNTING DECISIONS
11.1 BOOKS, RECORDS AND TAX REPORTS. The Managers shall maintain complete
and accurate books of account at the Company's principal place of business to
include: records of every transaction; a current list of the full name and last
known mailing address of each Member together with the contribution and share in
profits and losses to each Member; a copy of the Articles of Organization; a
copy of the Agreement and any amendments; and a copy of the Company's federal,
state, and local income tax returns for the three (3) most recent fiscal years.
The books of the Company shall be kept in accordance with sound accounting
practices and principles and with the methods of accounting employed for Federal
income tax purposes. All determinations by the Managers with respect to the
treatment of any item or its allocation for Federal, state or local tax purposes
shall be binding upon all of the Members unless the determination is
inconsistent with any express provision of this Agreement.
11.2 INSPECTION OF BOOKS, RECORDS AND TAX REPORTS. Any Member, at his
expense, shall have the right to inspect and examine the Company's books at
reasonable business times and upon prior written notice to the Managers.
11.3 FISCAL YEAR. The fiscal year of the Company for both financial
reporting and federal income tax purposes will begin on January 1 and end on
December 31.
11.4 ANNUAL STATEMENTS OF ACCOUNT. Within a reasonable period after the
close of each year, the Managers shall provide an annual statement to each
Member. The annual statement shall contain but is not limited to (i) an annual
reporting of the Company's gross receipts and operating expenses; (ii) the
annual capital account of that Member; (iii) a profit and loss report indicating
the Member's share of the Company's profits or loss for that year; and (iv) the
Member's allocable share of all items of income, gain, loss, deduction, and
credit for Federal income tax purposes.
20
SECTION 12 DISSOLUTION;
LIQUIDATION; TERMINATION
12.1 DISSOLUTION OF COMPANY. The term of the Company begins on the
Effective Date and the Company must be dissolved and its business terminated
upon the earliest occurrence of any of the events described in (i) Section
608.441 of the Act (or a successor provision in the Act); (ii) as set forth in
this Agreement; or (iii) upon the unanimous written consent of the Members. The
Company will continue to exist after the occurrence of any of the foregoing
events solely for the purpose of winding up its affairs in accordance with the
Act.
12.2 PROCEDURE ON LIQUIDATION. Unless the business of the Company is
continued pursuant to the provisions of this Agreement, upon the dissolution of
the Company, the person(s) required by law to wind up the Company's affairs must
liquidate the assets of the Company and apply the proceeds of liquidation in the
order of priority provided in Subsection 10.5 for the fiscal year of
liquidation. A reasonable time must be allowed for the orderly liquidation of
the assets of the Company and the discharge of its liabilities to minimize
losses that might otherwise occur in connection with the liquidation. Unless all
of the Members agree otherwise, the Company must follow the procedures contained
in Section 608.4421 of the Act. Upon liquidation and winding up of the Company,
unsold Company property must be valued at fair market value to determine the
gain or loss that would have resulted if the property were sold, and the Capital
Accounts of the Members or Interest Holders that have been maintained in
accordance with this Agreement must be adjusted to reflect the manner in which
the gain or loss would have been allocated if the property had been sold at its
assigned values. Upon completion of the liquidation of the Company and
distribution of the proceeds, the person supervising the liquidation must file
articles of dissolution with the Secretary of State as set forth in Section
608.445 of the Act.
SECTION 13
ALTERNATIVE DISPUTE RESOLUTION; BINDING ARBITRATION
13.1 AGREEMENT TO USE ALTERNATIVE DISPUTE RESOLUTION. The Members and the
Managers have entered into this Agreement in good faith and in the belief that
it is advantageous to all of them. It is with that same spirit of cooperation
that they pledge to attempt to resolve any dispute amicably without the
necessity of litigation. Accordingly, all parties agree that if any dispute
arises between or among them relating to this Agreement, they and any successors
must first attempt to negotiate a resolution and then, if such procedures fail
to resolve the dispute, submit the dispute to binding arbitration as provided in
this Section. The provisions of this Section are binding on all Interests.
13.2 ARBITRATION. In the case of any dispute between the Members or between
the Member(s) and the Managers which has not been resolved through negotiation
between the parties, such dispute shall be settled and determined through
arbitration in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association ("AAA"). Any arbitration pursuant to this
Agreement shall be held in Broward County, Florida, and shall be conducted by a
single arbitrator. In the event of a dispute between the Members, the
arbitration shall be conducted by a single arbitrator to be selected by two (2)
independent arbitrators, one each to be selected by each Member. In the event of
a dispute between the Managers and the Member(s), the arbitration shall be
21
conducted by a single arbitrator to be selected by two (2) independent
arbitrators, one of whom shall be selected by the Managers and the other to be
selected by the Member(s). The written decision of the arbitrator so selected
shall be binding, final and conclusive on the parties. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction. The
fees and expenses of arbitration shall be paid for by the Company. The
prevailing party in any arbitration (subject to the discretion of the
arbitrator) shall recover its expenses and costs including reasonable attorney's
fees from the other party.
SECTION 14
MISCELLANEOUS
14.1 NOTICES. All notices, payments, demands and communications required or
permitted to be given by this Agreement must be in writing and may be (i)
delivered personally to the party or to an officer of the party to whom the
notice is directed; or (ii) sent by registered or certified mail, postage and
charges prepaid. Any notice may be waived by the person entitled to receive the
notice.
A. If to the Company, deliver care of the Managers at the address of the
Company.
B. If to the Managers, to them at the address of the Company.
C. If to any Member, to the address of the Member on record with the
Company.
14.2 EFFECT OF INCONSISTENCIES WITH THE ACT. The Members, Managers and the
Company hereby agree that the duties and obligations imposed on the Members and
Managers of the Company as such shall be those set forth in this Agreement,
which is intended to govern the relationship among the Company and the Members
and Managers, notwithstanding any provision of the law to the contrary. In the
event the Act is subsequently amended or interpreted in such a way to make valid
any provision of this Agreement that was formerly invalid, such provision shall
be considered to be valid from the effective date of such interpretation or
amendment. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid, illegal or unenforceable to any extent,
the remainder of this Agreement and the application there of shall not be
affected and shall be enforceable to the fullest extent permitted by law.
Without limiting the generality of the foregoing sentence, to the extent any
provision of this Agreement is prohibited or ineffective under the Act or common
law, this Agreement shall be considered amended to the smallest degree possible
in order to make this Agreement effective under the Act or law.
14.3 SECTION CAPTIONS. Section titles and other captions contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of any part of
this Agreement.
14.4 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision is illegal or invalid for any reason
whatsoever, the illegality or invalidity will not affect the validity of the
remainder of this Agreement.
22
14.5 AMENDMENTS. Amendments maybe made to this Agreement from time to time
by the Managers as they determine necessary for purposes of continuing to
qualify the Company as a limited liability company under the laws of the State
of Florida, to qualify the Company as a partnership, as opposed to an
association taxable as a corporation, for purposes of federal, state and local
income tax law, and to effectuate the admission of additional Members pursuant
to Sections 5.3 and 8.5 of this Agreement. In all other respects, amendments to
this Agreement shall be made upon the affirmative vote or consent of a Majority
in Interest of the Members.
14.6 GOVERNING LAW. This Agreement and the rights of the Members are
governed by, construed and enforced in accordance with the laws of the State of
Florida.
14.7 COUNTERPART EXECUTION. This Agreement may be executed in any number of
counterparts with the same effect as if all parties had signed the same
document. All counterparts must be construed together and constitute one
instrument.
14.8 PARTIES IN INTEREST. This Agreement is binding upon and inures to the
benefit of the parties and their respective heirs, successors and permitted
assigns.
14.9 NUMBER AND GENDER. Where the context so requires, the masculine
includes the feminine and neuter, the singular includes the plural.
14.10 INTEGRATED AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties with respect to its subject matter,
and there are no agreements, understandings, restrictions, representations or
warranties between or among the parties other than those set forth in this
Agreement.
[SIGNATURE PAGE TO FOLLOW]
23
Each Member, prior to acquiring a Membership Interest, has made an
investigation of the Company and its business, and the Company has made
available to each such Member all information with respect thereto which such
Member needed to make an informed decision to acquire the Membership Interest.
Each Member considers himself, herself or itself to be a Person possessing
experience and sophistication as an investor which are adequate for the
evaluation of the merits and risks of such Member's investment in the Membership
Interest.
Each Manager acknowledges that he has been advised to seek the advice of
independent counsel and has had the opportunity to seek the advice of
independent counsel, read all of the terms of this Agreement, understands the
Agreement and agrees to abide by its terms and conditions.
This Limited Liability Company Operating Agreement of YOUNG AVIATION, LLC,
has been executed as of the 15th day of June, 2004.
MANAGERS: MEMBERS:
/s/ Joel Young, Jr. /s/ Joel Young, Jr.
------------------------------- -------------------------------------
Joel Young, Jr. Joel Young, Jr.
24
SCHEDULE"A"
MEMBERS/CAPITAL CONTRIBUTIONS
Initial Capital
Name/Address Contribution Shares Interest
------------ ------------ ------ --------
$ %
--------------------------- --------- --------- ------
---------------------------
---------------------------
Joel Young, Jr. $ %
--------------------------- --------- --------- ------
---------------------------
---------------------------
SCHEDULE"B"
ARTICLES OF ORGANIZATION
