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TABLE OF CONTENTS
ARTICLEI..................................................................................................................................1
DEFINITIONS.................................................................................................................1
1.1 Certain Definitions..........................................................................................1
1.2 Additional Definitions.....................................................................................4
ARTICLEII.................................................................................................................................4
ORGANIZATIONAL MATTERS.......................................................................................4
2.1 Formation......................................................................................................4
2,2 Name.............................................................................................................4
2.3 Name and Address of Initial Members...........................................................4
2.4 Registered Office and Registered Acent........................................................4
2.5 Principal Office and Other Offices..................................................................5
2.6 Purpose.........................................................................................................5
2,7 Certificate: Foreign Qualification....................................................................5
2.8 Term..............................................................................................................5
2.9 Meraer, Conversion, Interest Exchange.........................................................5
ARTICLEIII................................................................................................................................6
MEMBERS......................................................................................................................5
3.1 Place of Meetings of Members.......................................................................5
3.2 Annual Meetings of Members........................................................................5
3.3 Special Meetings of Members........................................................................6
3.4 Notices of Meetings of Members....................................................................6
3.5 Waiver of Notice............................................................................................6
3.6 Quorum of Members......................................................................................6
3,7 Voting at Meetings of Members: Impasse......................................................6
3.8 Voting by Proxy..............................................................................................6
3.9 Record Date...................................................................................................7
3.10 List of Members Entitled to Vote..................................................................7
3.11 Members of Record.....................................................................................7
3.12 Actions by Members Without a Meeting.......................................................7
3.13 Meetings by Conference Telephone............................................................7
ARTICLEIV................................................................................................................................7
RIGHTS AND DUTIES OF MANAGERS.........................................................................7
4.1 Management Powers of Managers................................................................7
4.2 Number of Managers.....................................................................................9
4.3 Qualification of Managers..............................................................................9
4.4 Election of Managers... .................................................................................. 9
4.5 Intentionally Deleted......................................................................................9
4.6 Vacancies......................................................................................................9
4.7 Place of Meetings of Manaaers......................................................................9
4.8 Annual Meetings of Managers.......................................................................9
4.9 Regular Meetings of Managers......................................................................9
4,10 Special Meetings of Manaaers...................................................................10
4.11 Notices and Waivers of Notice...................................................................10
4.12 Quorum of Manaaers.................................................................................10
4.13 Votina at Meetings of Managers.................................................................10
4.14 Compensation of Managers.......................................................................10
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4.15 Committees of Managers .........................
4.16 Contracts and Obligations ........................
4.17 Executive Manager ..................................
4.18 Administrative Manager ..............
4.19 Officers .......................................
4.20 Removal and Vacancies .............
4.21 Dealing with the Company ..........
4.22 Reimbursement ..........................
4.23 Other Business ...........................
4.24 Standards of Performance ..........
4.25 indemnity ....................................
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ARTICLEV...............................................................................................................................12
CONTRIBUTIONS TO CAPITAL...................................................................................12
5.1 Initial Contributions......................................................................................12
5.2 Additional Contributions...............................................................................13
5.3 Optional Contributions .......................................
:......... ................................ 13
5.4 Failure to Make Contributions......................................................................13
5.5 Readjustment of Membership Interest..........................................................13
5.6 Security Interest...........................................................................................14
5.7 Maintenance of Capital Accounts.................................................................14
5.8 Compliance with Code and Treasury Regulations
........................................14
5.9 Effect of Transfers.. .................................
*"*"*'* ........ , ..... * ......... * ................... 14
5.10 No Interest on Contributions......................................................................16
5.11 No Withdrawal of Contributions..................................................................15
5.12 No Prioritv..................................................................................................15
5.13 Negative Capital Accounts.........................................................................15
5.14 Limited Liability of Members.......................................................................15
5.15 Loans.........................................................................................................15
ARTICLEVI..............................................................................................................................15
ALLOCATIONS AND DISTRIBUTIONS........................................................................15
6.1 Allocations of Profits and Losses.................................................................15
6.2 Interim Distributions.....................................................................................15
6.3 Distributions on Termination........................................................................16
6.4 Limitation on Distributions...........................................................................A6
6.5 Distributions in Kind.....................................................................................16
ARTICLEVII.............................................................................................................................16
ACCOUNTING AND TAX MATTERS............................................................................16
7.1 Books and Records.....................................................................................16
7.2 Tax Returns.................................................................................................17
7.3 Tax Elections...............................................................................................17
7.4 Tax Matters Partner.....................................................................................17
ARTICLEVill............................................................................................................................17
TRANSFERS OF MEMBERSHIP INTERESTS.............................................................17
8.1 Transfers in General....................................................................................17
8.2 Permitted Transfers.....................................................................................17
8.3 Conditions to Permitted Transfers................................................................18
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8.4 Tax Restrictions on Transfers ....
8.5 Securities Restrictions on Transfer ...........................
8.6 Assignment Procedures ............................................
8.7 Effect of Assignment .................................................
8.8 Rights of Assignees ..................................................
8.9 Admission of Assignees as Members ........................
8.10 Admission of New Members ...................................
8.11 Buy Sell Provisions .................................................
if
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ARTICLE1X..............................................................................................
WINDING UP AND TERMINATION ...............................................
9.1 Event Reauirina a Winding Up .....................................
9.2 Revocation...................................................................
9.3 Cancellation.................................................................
9.4 Interim Manager...........................................................
9.5 Effect of Event Reauirina a Windina Uo .......................
9,6 Winding Uo and Termination ........................................
9.7 Cancellation of Certificate ............................................
9.8 Distributions in Kind .....................................................
ARTICLEX................ ......................... ..................................... I ... I..........
CERTIFICATES REPRESENTING MEMBERSHIP INTEREST..
10.1 Form of Certificates ................................................
10.2 Lost Certificates.....................................................
10.3 Transfer of Membership Interest .............................
10.4 Restriction on Transfer ...........................................
ARTICLE XI
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MISCELLANEOUS PROVISIONS.................................................................................27
11,1 Notices.......................................................................................................27
11.2 Governing Law...........................................................................................27
11.3 No Partition Action.....................................................................................27
11.4 Captions and Headings..............................................................................27
11.5 Amendment of Certificate...........................................................................27
11.6 Amendment of this Aareement...................................................................27
11.7 Number and Gender..................................................................................28
11.8 Binding Effect.............................................................................................28
11.9 Severabiiitv................................................................................................28
11.10 Counterparts............................................................................................28
11.11 Sole and Absolute Discretion...................................................................28
CONSENTBY SPOUSE...........................................................................................................29
EXHIBITA................................................................................................................................30
NAMES, INITIAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS OF MEMBERS ....30
EXHIBITB................................................................................................................................30
LEGAL DESCRIPTION OF PROPERTY
100094605)
COMPANY AGREEMENT
OF
JIBS GATEWAY, LLC
This Company Agreement of JBS GATEWAY, LLC, (the "Company") is adopted effective
the 7th day of September, 2010 (the "Effective Date"), by the undersigned Members and
Managers of the Company,
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. The following terms shall have the meanings specified below
when used in this Agreement unless otherwise expressly specified herein to the contrary:
(a) "Accounting Year" means the Company's accounting year for accounting
and tax purposes, which shall be the calendar year.
(b) "Agreement" means this Company Agreement, as amended from time to
time.
(c) "Additional Contribution" means the contributions described under
Section 5.2 of this Agreement.
(d) Intentionally Deleted.
(e) "Authorized Purposes" shall mean the purposes of the Company
specified in the Certificate or authorized by a vote of a Majority in Interest of all of the Members
in accordance with the provisions of this Agreement.
(f) "Capital Account" means, with respect to any Member, the account
maintained for such Member in accordance with Section 5.7 of this Agreement.
(g) "Capital Contribution" means any Initial Contribution, Additional
Contribution or Optional Contribution to the capital of the Company in cash or property when
and as such contribution is actually made to the Company by a Member.
(h) "Certificate" means the Certificate of Formation of the Company filed with
the Secretary of State of the State of Texas pursuant to the TLLCL, as amended or restated
from time to time.
(1) "Company" means the limited liability company formed pursuant to this
Agreement.
Q) "Default Interest Rate" means the lesser of eighteen percent (18%) per
annum or maximum lawful rate allowed by applicable law.
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(k) "Distributable Cash" means the amount by which (1) the aggregate
amount of all cash and other current funds on account from time to time held by the Company
on hand or in bank accounts or other temporary investments pending distribution, exceeds (2)
the aggregate amount of all amounts paid or set aside by the Company for (A) all principal and
interest payments on indebtedness of the Company and all other sums payable to lenders; (B)
all cash expenditures Incurred incident to the normal operations of the Company's business;
and (C) such cash reserves as the Managers deem reasonably necessary to the property
operation of the Company's business.
(1) "Initial Contribution" means the initial Capital Contribution to the Company
made by a Member.
(m) "IRS Code" means, at any time, the Internal Revenue Code of 1986, as
amended, or, from and after the date any successor statute becomes, by its terms, applicable to
the Company, such successor statute, in each case as amended at such time by amendments
that are, at that time, applicable to the Company. All references to sections of the IRS Code
include any corresponding provision or provisions of any such successor statute.
(n) "Losses" means, for each Accounting Year (or portion thereof, as may be
applicable), the losses and deductions of the Company determined in accordance with
accounting principles consistently applied from year to year under the Company's Method of
Accounting and as reported, separately or in the aggregate as appropriate, on the Company's
information tax return filed for federal income tax purposes, plus any expenditures described in
Section 705(a) (2) (B) of the IRS Code.
(o) "Manager" means each individual named as such in the Certificate, or
any other person who succeeds such individual in such capacity pursuant to the terms herein
and any other individual who is elected to act as a Manager of the Company as provided in this
Agreement.
(p) "Managers" means all persons at any time then acting in the capacity as
a Manager of the Company (unless reference is made in specific instances to a smaller group of
Managers).
(q) "Ma'orit " means, with respect to any referenced group of Managers, a
combination of any of such Managers constituting more than fifty percent (bb%) of the number
of Managers of such referenced group who are then elected and qualified.
(r) "Majority in Interest" means, with respect to any referenced group of
Members, a combination of any of such Members who, in the aggregate, own more than fifty
percent (60%) of the Membership Interests owned by all of such referenced group of Members.
(s) "Member" means each person designated as a Member of the Company
on Exhibit A which is attached hereto and hereby made a part hereof by reference for all
purposes, any successor to all or any part of any such person's Membership Interest in the
Company who has been duly admitted as a Member of the Company in accordance with this
Agreement and any other person admitted as an additional Member of the Company in
accordance with this Agreement.
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(t) "Members" means all Members of the Company collectively in their
capacity as Members of the Company (unless reference is made in specific instances to a
smaller group of Members).
(u) "Membership Interest" means, at any time, the interest of a Member in the
Company, including the right to receive distributions of Company assets and the right to receive
allocations of income, gain, loss, deduction, or credit of the Company, but does not include the
voting rights or management rights reserved to the Members under the terms of this Agreement
(or the right to vote the Units relating thereto) until such holder of the Membership Interest has
been admitted to the Company as a Member as to that Membership Interest.
(v) "Method of Accounting" shall mean a cash basis method of accounting.
(w) "Optional Contribution" means a Capital Contribution by a Member
pursuant to Section 5.3 of this Agreement.
(x) "Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association or other entity.
(y) "Principal Office" means 1289 North Harvey Mitchell Parkway, Bryan,
Texas 77803, or such other location within the State of Texas as may from time to time be
determined by the Managers and specified by written notice from the Managers to the
Members.
(z) "Profits" means, for each Accounting Year (or portion thereof, as may be
applicable), the income and gains of the Company determined in accordance with accounting
principles consistently applied from year to year under the Company's Method of Accounting
and as reported, separately or in the aggregate as appropriate, on the Company's information
tax return filed for federal income tax purposes, plus any income described in Section 705(a)(1)
(B) of the IRS Code.
(aa) "ProiecY' means the purchase and development of the Property.
(bb) "Pro ert ' means the real property located in College Station, Texas, and
more particularly described on Exhibit B attached here to and incorporated herein by reference.
(cc) "Registered Agent" means the registered agent for the Company
specified in the Certificate of Formation, as such registered agent may be changed from time to
time In accordance with the TLLCL.
(dd) "TLLCL" means, at any time, the Texas Limited Liability Company Law of
the State of Texas, as defined by the Texas Business Organizations Code and as amended, or,
from and after the date any successor statute becomes, by its terms, applicable to the
Company, such successor statute, in each case as amended at such time by amendments that
are, at that time, applicable to the Company. All references to sections of the TLLCL include
any corresponding provision or provisions of any such successor statute.
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(ee) "Term" means the term of existence of the Company, which shall be
perpetual, unless the Company is earlier dissolved in accordance with the provisions of either
this Agreement or the TLLCL.
(ff) 'Transfer" means (a) any sale, transfer, encumbrance, gift, donation,
assignment, pledge, hypothecation, or other transfer of any Membership Interest or any interest
therein, whether voluntary or involuntary, and whether during the transferor's lifetime or upon or
after the transferor's death, including any transfer by operation of law, by court order, by judicial
process, or by foreclosure, levy, or attachment; or (b) the act of making any of the foregoing.
(gg) "Treasury Regulations" or "Regulations" means, at any time, the Federal
income tax regulations promulgated under the IRS Code that are in effect at such time and that,
by their terms, are applicable to the Company at such time. All references to sections of the
Regulations include any corresponding provision or provisions of any such successor
regulations.
(hh) "Units" means an increment of interest in the Company assigned to each
Member in connection with a Membership Interest that represents an original Capital
Contribution of $1.00 and which, in each case where the Members, or a group of Members are
entitled to vote or make a decision under the terms of this Agreement, will carry one vote.
1.2 Additional Definitions. Additional terms which are defined in other provisions of
this Agreement shall have the meanings assigned to such terms in such provisions.
ARTICLE II
ORGANIZATIONAL MATTER
2.1 Formation. The Members hereby form the Company pursuant to the TLLCL, as
of the Effective Date.
2.2 Name. The name of the Company is "JBS GATEWAY, LLC" The business of
the Company will at all times be conducted under such name and such other name or names as
the Managers may select, from time to time.
2.3 Name and Address of Initial Members. The name and address of each Member
is set forth on Exhibit A. Each such person shown on Exhibit A on the Effective Date of this
Agreement is admitted to the Company as a Member upon its formation. Any change in the
name or address of a Member of which the Company is given notice will be as set forth in the
records of the Company and Exhibit A will be deemed amended appropriately. The Managers
may substitute a new Exhibit A (indicating its effective date) to reflect such additional and/or
different information. The records of the Company will be prima facia evidence of the status of
any person as a Member.
2.4 Registered Office and Registered Agent. The address of the registered office
and agent of the Company in the State of Texas will be David W. Scarmardo, 1289 North
Harvey Mitchell Parkway, Bryan, Texas 77803. The Managers may at any time, and from time
to time, designate a new successor registered office or registered agent, or both. By executing
this Agreement, David W. Scarmardo consents to his appointment as registered agent of the
Company.
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2.5 Principal Office and Other Offices. The principal address and place of business
of the Company will be 1289 North Harvey Mitchell Parkway, Bryan, Texas 77803, or such
other location within the State of Texas as may from time to time be determined by the as the
Manager may designate from time to time by notice to the Members. The Company may have
such other office or offices as the Manager may designate from time to time by notice to the
Members.
2.6 Purpose.,. The purpose of the Company is to transact any or all lawful business
for which companies maybe organized under the TLLCL, including owning the Property and
developing the Project,
2.7 Certificate: Foreign Qualification. A certificate of formation that met the
requirements of the TLLCL was filed with the Secretary of State of Texas on June 18, 2009, and
will be amended from time to time as required by the TLLCL. Upon the request of the
Managers, each Member will immediately execute all certificates and other documents
consistent with the terms of this Agreement that the Managers believe are necessary or
desirable for the Managers to accomplish all filing, recording, publishing, an other acts as may
be appropriate to comply with all requirements to form, operate, qualify, and continue the
Company as a (a) limited liability company under the TLLCL and the laws of the State of Texas
and (b) limited liability company, or a company in which each Member has limited liability in all
other jurisdictions where the Company proposes to operate.
2.8 Term. The Company's existence commenced on June 18, 2009, the effective
date of the initial filing of the Certificate with the Secretary of State of the State of Texas, and
will continue until the Company terminates pursuant to the terms of this Agreement.
2.9 Merger, Conversion. Interest Exchange. The Company may effect or participate
in a merger, conversion, or interest exchange (as such terms are defined in the TLLCL) or enter
into an agreement to do so with the consent of the Majority of the Managers.
ARTICLE III
MEMBERS
3.1 Place of Meetings of Members. All meetings of the Members shall be held at the
Principal Office of the Company or at such other place within or without the State of Texas as
may be determined by the Managers and set forth in the respective notice or waivers of notice
of such meeting or other written consent of all persons entitled to vote at such meeting.
3.2 Annual Meetinas of Members. The annual meeting of the Members for the
election of Officers and the transaction of such other business as may properly come before the
meeting, shall be held on the last Friday of August of each year, and if a legal holiday, then on
the next full business day following, at two o'clock (2:00) p.m., at which the Members transact
such other business as may properly be brought before the meeting. Annual meetings of the
Members shall be called in the same manner as provided in this Agreement for calling special
meetings of the Members, except that the purposes of such annual meetings need not be stated
in the notices of such annual meetings unless and to the extent otherwise required by applicable
law with respect to such annual meetings. If the annual meeting is not held on the date above
specified, the Manager shall cause a meeting in lieu thereof to be held as soon thereafter as
Page 5
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convenient, and any business transacted or election held at that meeting shall be as valid as if
held at the annual meeting. Failure to hold the annual meeting at the designated time shall not
work a dissolution of the Company
3.3 Special Meetings of Members. Special meetings of the Members may be called
by a Manager or by Members owning, in the aggregate, not less than twenty percent (20%) of
the Membership Interests. Business transacted at all special meetings shall be confined to the
purposes stated in the notices of such meetings.
3.4 Notices of Meetings of Members. Written or printed notice stating the place, date
and time of the meeting and, in the case of special meetings, the purposes or purposes for
which such meeting is called, shall be delivered not less than ten (10) days nor more than sixty
(60) days prior to the date of such meeting, either personally or by mail, by or at the direction of
the Managers or the Members calling such meeting, to each Member of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to have been delivered when
deposited in the United States mail, postage prepaid, addressed to the Member at the address
of such Member as it appears on the transfer records of the Company.
3.5 Waiver of Notice. Attendance of a Member at any meeting shall constitute a
waiver of notice of such meeting, except where the Member attends a meeting for the express
purpose of objecting to the transaction of business at such meeting on the ground that such
meeting is not lawfully called or convened. Any Member may waive notice of any meeting by
signing a written waiver to such effect before or after such meeting and such waiver shall be
effective for all purposes as satisfying all notice requirement of this Agreement or applicable
law.
3.6 Quorum of Members. A Majority in Interest of all of the Members shall constitute
a quorum at all meetings of the Members, except as otherwise provided by law or the
Certificate. Once a quorum is present at a meeting of the Members, the subsequent withdrawal
from the meeting of any Member prior to adjournment or the refusal or any Member to vote shall
not affect the presence of a quorum at the meeting. If, however, such quorum shall not be
present at any meeting of the Members, the Members present and entitled to vote at such
meeting shall have the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until Members owning the requisite amount of Membership
interests shall be present or represented.
3.7 Voiina at Meetings of Members. At any meeting of the Members at which a
quorum is present, the vote of the Members owning a Majority In Interest of the Members
present in person or by proxy and entitled to vote at such meeting shall be the act of the
Members, unless the vote of a greater percentage of the Membership Interests is required by
law, the Certificate of Formation or this Agreement.
3.8 Voting by Proxy. Each Member shall be authorized to vote by proxy at any
meeting of the Members. Each proxy must be executed in writing by the Member or such
Member's duly authorized attorney -in -fact. No proxy shall be valid more than eleven (11)
months after the date of its execution. Each proxy shall be revocable unless the proxy form
states conspicuously that the proxy is Irrevocable and the proxy is coupled with an interest.
Page 6
3.9 Record Date. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any Company, or in order to make a determination of
Members for any other proper purpose, the Managers shall fix in advance a date as the record
date for any such determination of Members. Such record date in any case shall not be more
than sixty (60) days, and in the case of a meeting of Members not less than ten (10) days, prior
to the date on which the particular action requiring such determination of Members is to be
taken. If a determination of Members entitled to vote at any meeting of Members has been
made as provided in this Section 3.9, such determination shall apply to any adjournment
thereof. The transfer books of the Company shall not be closed for the purpose of making a
determination of Members under this Section 3.9.
3.10 Lisi of Members Entitled to Vote. The Managers shall make, at least ten (10)
days before each meeting of Members, a complete list of the Members entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order by the surnames of the
Members, which list shall contain the address of each such Member and the Membership
Interest held by each such Member. Such list shall, for a period of ten (10) days prior to such
meeting, be kept on file at the Registered Office of the Company and shall be subject to
inspections by any Member at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject to inspection
of any Member during the whole time of the meeting. The failure to comply with the provisions
of this Section 3.10, however, shall not affect the validity of any action taken at any such
meeting of the Members.
3.11 Members of Record. The Company shall be entitled to treat the holder of record
of any Membership Interest as the holder in fact of such Membership Interest for all purposes.
Accordingly, the Company shall not be bound to recognize any equitable or other claim to or
interest in any Membership Interest on the part of any other person which is not reflected on the
transfer records of the Company, whether or not it shall have actual or other notice of such
claim or interest, except as expressly provided to the contrary by this Agreement or applicable
law.
3.12 Actions by Members Without a Meeting. Any action required by the TLLCL or
this Agreement to be taken by the Members at a meeting may be taken by the Members without
a meeting, without prior notice and without a vote, if a written consent or consents, setting forth
the action so taken, shall be signed by Members having not less than the minimum number of
votes which would be necessary to take such action at a meeting at which all Members entitled
to vote on the action were present and voted.
3.13 Meetings by Conference Telephone. Subject to the provisions of this Agreement
regarding notice and waiver thereof, annual and special meetings of the Members may be
conducted by conference telephone call or other electronic means allowing all Members present
at such meeting to communicate among themselves.
ARTICLE IV
RIGHTS AND DUTIES OF MANAGERS
4.1 Manaoement Powers of Managers. The powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the Company shall be
managed under, its designated Manager or Managers. In addition to the powers and authorities
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expressly conferred by this Agreement upon the Managers, the Managers, without the approval
of the Members, may exercise all such powers of the Company and do all such lawful acts and
things as are not directed or required to be exercised or done by the Members by the TLLCL,
the Certificate or this Agreement, including, but not limited to, the following:
(a) acquire by purchase, tease, or otherwise any real or personal property which
may be necessary, convenient, or incidental to the accomplishment of the purposes of the
Company;
(b) operate, maintain, finance, improve, construct, own, grant options with respect to,
sell, convey, assign, mortgage, and lease any real estate or any personal property necessary,
convenient, or incidental to the accomplishment of the purposes of the Company;
(c) execute any and all agreements, contracts, documents, certifications, and
instruments necessary or convenient In connection with the management, maintenance, and
operation of the Company property, or in connection with managing the affairs of the Company;
(d) borrow money and issue evidences of indebtedness necessary, convenient, or
incidental to the accomplishment of the purposes of the Company, and secure the same by
mortgage, pledge, or other lien on any Company property;
(e) execute, in furtherance of any or all of the purposes of the Company, any deed,
lease, mortgage, deed of trust, mortgage note, promissory note, bill of sale, contract or other
instrument purporting to convey or encumber any or all of the Company property;
(f) prepay in whole or in part, refinance, recast, increase, modify, or extend any
liabilities affecting the property of the Company and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Company property;
(g) care for and distribute funds to the Member by way of cash, income, return of
capital, or otherwise, all in accordance with the provisions of this Agreement, and perform all
matters in furtherance of the objectives of the Company or this Agreement;
(h) contract on behalf of the Company for the employment and services of
employees and/or independent contractors, such as lawyers, accountants, and investment
advisors, and delegate to such persons the duty to manage or supervise any of the assets or
operations of the Company;
(i) engage in any kind of activity and perform and carry out contracts of any kind
(including contracts of insurance covering risks to Company property and Manager/Member
liability) necessary or incidental to, or in connection with, the accomplishment of the purposes of
the Company, as may be lawfully carried on or performed by a partnership under the laws of
each state in which the Company is then formed or qualified;
Q) take, or refrain from taking, all actions, not expressly proscribed or limited by this
Agreement, as may be necessary or appropriate to accomplish the purposes of the Company;
(k) institute, prosecute, defend, settle, compromise, and dismiss lawsuits or other
judicial or administrative proceedings brought on or in behalf of, or against, the Company or the
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Member in connection with activities arising out of, connected with, or incidental to these this
Agreement, and to engage counsel or others in connection therewith;
(1) Sell, lease, exchange or otherwise dispose of all or any part of the Company's
property and assets and execute any and all agreements, contracts, documents, certifications,
and instruments necessary or convenient to accomplish same.
4.2 Number of Managers, The initial number of Managers shall be three (3) or, in the
event of a vacancy as described in Section 4.6, as otherwise may be determined by action of
the Managers from time to time, but no decrease in the number of Managers shall have the
effect of shortening the term of any incumbent Manager. If none of the Initial Managers (as
defined in Section 4.4 below) remain in office, then a Majority in Interest of the Members shall
determine the number of Managers and elect one or more individuals as Managers.
4.3 Qualification of Managers. Managers need not be residents of the State of
Texas. Managers need not be Members of the Company.
4.4 Election of Manaaers. The initial three (3) Managers are David W. Scarmardo,
Carl Gregory Scarmardo, and Mark C. Scarmardo (the "Initial Managers"). Each Initial Manager
elected shall serve until such Manager dies, becomes incapacitated or resigns. Thereafter,
each Manager elected shall hold office until his successor is elected and qualified.
4.5 Intentionally Deleted
4.6 Vacancies. If one or more of the Initial Managers dies, becomes incapacitated or
resigns for any reason, the remaining Managers shall remain and continue as Managers without
any requirement to fill the vacancy in the Manager position; grovided, however, such remaining
Manager(s) may, at such Managers' sole discretion, by vote of a Majority of the remaining
Managers appoint a lineal descendant of the deceased or incapacitated Manager as such
Manager's replacement, provided, further, a person or entity who is not a direct lineal
descendant of one of the three (3) Initial Managers may be appointed as a Manager of the
Company upon the prior unanimous written consent of all of the then existing Managers. Any
Manager elected to fill such a vacancy shall be elected fora term determined by the electing
Managers.
4.7 Place of Meetings of Managers. All meetings of the Managers may be held
either within or without the State of Texas.
4.8 Annual Meetings of Managers. The annual meeting of the Managers shall be
held, without further notice, immediately following the annual meeting of Members, and at the
same place, or at such other time and place as shall be fixed with the written consent of all of
the Managers.
4.9 Regular Meetings of Managers. Regular meetings of the Managers may be held
without notice at such time and place either within or without the State of Texas as shall from
time to time be determined by the Managers.
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4.10 Special Meetings of Managers, Special meetings of the Managers may be called
by any Manager on not less than three (3) days' notice to each Manager, either personally or by
mail, telephone, telegram or facsimile transmission.
4.11 Notices and Waivers of Notice. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Managers need be specified in the notice or
waiver of notice of such meeting. Attendance of a Manager at any meeting shall constitute a
waiver of notice of such meeting, except where the Manager attends a meeting for the express
purpose of objecting to the transaction of business at such meeting on the ground that such
meeting is not lawfully called or convened. Any Manager may waive notice of any meeting by
signing a written waiver to such effect before or after such meeting and such waiver shall be
effective for all purposes as satisfying all notice requirements of this Agreement or applicable
law.
4.12 Quorum of Managers. At all meetings of the Managers, the presence of a
Majority of the Managers shall be necessary and sufficient to constitute a quorum for the
transaction of all business unless a greater number is required by law. if a quorum shall not be
present at any meeting of the Managers, the Managers present at the meeting may adjourn the
meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
4.13 Voting at Meetings of Managers. The act of a Majority of the Managers present
at a meeting at which a quorum is present shall be the act of the Managers, except as otherwise
provided by law or as otherwise provided in this Section 4.13. In the event a Member of the
Company triggers the buy -sell provisions of Section 8.11 herewith, all decisions of the Company
with respect to the Company's exercise of any of its options under Section 8.11 shall be made
by a majority of the Managers excluding the Offeror (as defined in Section 8.11 hereof) or by a
Majority in Interest of the Members if the Offeror is an Initial Manager serving as the sole
Manager of the Company.
4.14 Compensation of Managers. Managers, as such, shall not receive any stated
salary for their services, but shall receive such compensation for their services as may be from
time to time approved by vote of the Majority of the Managers at an annual meeting or a special
meeting called for such purpose. Nothing in this Agreement shall be construed to preclude any
Manager from serving the Company in any other capacity and receiving compensation for such
purposes.
4.15 Committees of Managers. The Managers may designate from among the
Managers one or more committees, each of which shall be comprised of one or more
Managers, and may designate one or more of the Managers as alternate members of any
committee, who may, subject to any limitations imposed by the Managers, replace absent or
disqualified Managers at any meeting of that committee. Any such committee shall have and
may exercise all of the authority of the Managers to the extent delegated by the Managers to
such committee subject to the limitations on such delegation set forth in the TLLCL.
4.16 Contracts and Obligations. Debts, liabilities and other obligations may be
incurred, and contracts and other instruments may be executed, on behalf of the Company for
any Authorized Purpose by any Manager only if, when and as such action is authorized by the
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affirmative vote of a Majority of the Managers present at any meeting at which there is a
quorum.
4.17 Executive Manager. The Managers shall be authorized to establish the position
of Executive Manager (herein so called) of the Company and to elect an Executive Manager
from among the Managers then elected and serving as such. Any such Executive Manager who
is elected by the Managers shall be responsible for supervising and conducting the day-to-day
activities of the Company and presiding at meetings of the Managers and Members and shall
perform such other duties and exercise such other authorities as may from time to time be
designated by resolution of the Managers. Any such Executive Manager who is elected shall
serve until the next annual meeting of the Managers and until a successor Executive Manager is
elected and qualified.
4.18 Administrative Manager. The Managers shall be authorized to establish the
position of Administrative Manager (herein so called) of the Company and to elect an
Administrative Manager from among the Managers then elected and serving as such. Any such
Administrative Manager who is elected by the Managers shall be responsible for maintaining, or
supervising the maintenance of, the books and records of the Company and recording minutes
of all meetings of the Managers and Members and shall perform such other duties and exercise
such other authorities as may from time to time be designated by resolution of the Mangers.
Any such Administrative Manager who is elected shall serve until the next annual meeting of the
Managers and until a successor Administrative Manager is elected and qualified.
4.19 Officers. The Managers shall be authorized to designate one or more persons as
officers of the Company who are not Managers. Any such officer so designated by the
Managers shall perform such duties and exercise such authorities as may from time to time be
designated by resolution of the Managers. Any such officer who is designated by the Managers
shall serve until the next annual meeting of the Managers and until a successor officer is elected
and qualified.
4.20 Removal and Vacancies. Any Executive Manager, Administrative Manager or
other officer of the Company shall be subject to removal, with or without cause, at any regular or
special meeting of the Managers. Any vacancy in the position of Executive Manager,
Administrative Manager or other officer of the Company resulting from removal, resignation or
other event may be filled by the Managers at any regular or special meeting of the Managers.
4.21 Dealings with the Company. The Company may enter into agreements and
transact business with a Manager, Member or any Affiliate of a Manager or Member but the
terms of such agreement or transaction must be no less favorable to the Company than those
the Company could obtain from unrelated third parties and must be approved by a Majority of
the Managers. Notwithstanding anything herein to the contrary, it is understood and agreed that
the Company may employ any Member and/or Manager and any person affiliated with any
Member and/or Manager to render services on behalf of the Company and may compensate the
person rendering the services on customary terms and at competitive rates.
4.22 Reimbursement. A Manager or Managers are entitled to be reimbursed for out-
of-pocket costs and expenses incurred by it in performing its duties under this Agreement.
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4.23 Other Business. Any Member and Manager may engage in or possess an
interest in other business ventures of any nature or description, independently or with others,
similar to, or competitive with the business conducted by the Company. Neither the Company
nor any Member or Manager shall have any rights in or to such Independent ventures or the
income or profits derived from these other activities. No Member or Manager is required to
devote more of its time to Company affairs than is reasonably required.
4,24 Standards of Performance.
(a) Except as of otherwise provided in this Agreement, the Managers shall perform their
duties with respect to the Company in good faith and in the best interest of the
Company and shall devote such time and effort to the Company business and
operations as is reasonably necessary to manage the affairs of the Company
prudently.
(b) The Manager is liable for acts, errors, or omissions in performing its duties with
respect to the Company only if such performances are conducted in bad faith or
with gross negligence. THE MANAGER IS NOT LIABLE FOR ACTS, ERRORS,
OR OMISSIONS IN PERFORMING ITS DUTIES WITH RESPECT TO THE
COMPANY FOR ANY OTHER REASON THAN INCLUDING THE MANAGER'S
SOLE, PARTIAL, OR CONCURRENT NEGLIGENCE.
4.25 Indemnity. Subject to any applicable limitations contained in the TLLCL or other
applicable law, the Company to the extent of its assets legally available for that purpose, will
indemnify and hold harmless the Members, Officers and Managers and any partner, interest
holder, director, member, manager, shareholder, officer and Affiliate of any of them (collectively,
the "Indemnified Persons"), from and against any and all loss, damage, expense (Including
without limitation fees and expenses of attorneys and other advisors and any court costs
incurred by any Indemnified Person) or liability by reason of anything any Indemnified Person
does or refrains from doing for, or in connection with the business or affairs of, the Company
(INCLUDING ANY LOSS, DAMAGE, EXPENSE OR LIABILITY CAUSED BY OR
ATTRIBUTABLE TO THE ORDINARY OR SIMPLE NEGLIGENCE, AS OPPOSED TO GROSS
NEGLIGENCE, OF THE INDEMNIFIED PERSON), except to the extent that the loss, damage,
expense or liability results primarily from the Indemnified Person's proven gross negligence,
fraud, illegal conduct or willful breach of a material provision of this Agreement which in either
event causes actual, material damage to the Company. The Company shall pay or reimburse,
in advance of the final disposition of any claim for which indemnification is required pursuant to
this Section 4.25 to all Indemnified Persons, all reasonable expenses incurred by any
Indemnified Person who was, is or is threatened to be made a named defendant or respondent
in any claim for which indemnification is required pursuant to this Section 4.25 to the fullest
extent permitted by the TLLCL, provided that such Indemnified Person has agreed in writing to
reimburse the Company for all amounts paid to such Indemnified Person if it is determined that
such Indemnified Person was not entitled to indemnification under this Section 4,25.
ARTICLE V
CONTRIBUTIONS TO CAPITAL
5.1 Initial Contributions. Concurrently with the execution of this Agreement, each
Member shall contribute the property to the capital of the Company referenced as the Initial
Contribution of such Member as set forth in Exhibit A which is attached hereto. Such property
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shall be the Initial Contribution of each such Member and, upon the contribution and
incorporated herein by reference of such Initial Contribution, each such Member shall receive
such Member's Membership Interest and the number of Units in the Company set out on Exhibit
A.
5.2 Additional Contributions. In addition to the contributions described in Paragraph
5.1, the Members may be required to make additional capital contributions. The Company may
assess additional contributions by vote of a Majority of the Managers. The amount of additional
contribution a Member will pay will be in accordance with the Member's percentage of
Membership Interest in the Company. Such Additional Contributions shall be paid by each
Member within thirty (30) days following the receipt of notice from the Managers.
5.3 Ootional Contributions. At any time, the Managers may determine that additional
contributions of cash or property to the Company are desirable. Within ten (10) days following
the receipt of notice from the Managers, each Member may contribute cash or property to the
Company as a "Voluntary Capital Contribution" on the terms and subject to the conditions set
forth in the notice from the Managers. All such additional voluntary capital contributions shall be
requested in proportion to the then Membership Interests of the individual Members in the
Company to the total outstanding Membership Interests of the Company.
5.4 Failure to Make Contributions. If any Member fails to timely make any capital
contribution required pursuant to Section 5.2, any other Member or Members may, no later than
thirty (30) days after the expiration of the thirty (30) day period set forth in Section 5.2:
(a) pay that portion of any contribution which is in default, which payment shall
constitute a demand loan to the defaulting Member, and all Company distributions that would
otherwise have been distributed to such Member (whether before or after dissolution of the
Company) shall, instead, be distributed to the Member or Members that makes such
contribution (but for all other purposes of this Agreement the same shall be treated as if
distributed to the defaulting Member) until such time as the entire sum so contributed, together
with interest thereon at the Default Interest Rate from the date that such contribution was made
until repaid;
(b) exercise the rights of a secured party under the Uniform Commercial Code of the
State of Texas (the "UCC"); or
(c) exercise any other rights, remedies, and recourses to which such Member may
be entitled at law or in equity.
In the event that more than one of the participating Members elects to pay that portion of
any Additional Contribution which is in default, such contributions may be allocated between the
participating Members in such proportion as the participating Members may agree among
themselves or, in the absence of an agreement, in the same proportion in which the
Membership Interests owned by each of the participating Members bears to all of the
Membership Interests in the Company, excluding the Membership Interests owned by the
defaulting Member and the non -participating Members.
5.5 Readjustment of Membership Interests. When any Member makes a capital
contribution pursuant to Article 5 in an amount smaller than that Member's current Membership
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Interest, or elects not to participate at all, and the other Members do not fully participate as
provided in Section 5.4 (a), then the Membership Interests of the Members shall be readjusted
based on the newly adjusted capital account balance of each Member.
5.6 Security Interest. Each Member grants to the Company and to the other
Members, as security for the payment of all contributions to be made by such Member and the
performance of all other agreements of such Member under this Agreement, a security interest
in and to its Membership Interest pursuant to and in accordance with the provisions of the UCC,
and agrees in the event of any default in such payment or performance which continues for a
period fifteen (15) days after receipt by the defaulting Member of notice of such default, the
Company and the non -defaulting Members shall each have all of the rights, remedies, and
recourses, afforded a secured party under the UCC. To evidence such security interest each
Member shall execute such documents from time to time as may be reasonably necessary or
appropriate, including a financing statement (which may be recorded or filed in accordance with
applicable law) and continuation statements. If the Membership Interest of the defaulting
Member is foreclosed and sold or the Interest retained pursuant to the UCC, the non -defaulting
Members are authorized to executed all documents and take such other action as may be
required to effectuate the transfer of the defaulting Member's interest. Such authorization shall
be deemed coupled with an interest and shall be irrevocable.
5.7 Maintenance of Capital Accounts. A separate Capital Account shall be
established and maintained for each Member and shall be increased and decreased in
accordance with the following provisions:
(a) Each Member's Capital Account will be increased by (1) the amount of
money contributed by such Member to the Company; (ii) the fair market value of any property
contributed by such Member to the Company; (iii) the amount of any liabilities of the Company
that are assumed by the Member or that are secured by any property distributed by the
Company to the Member; and (iv) the amount of Profits allocated to such Member.
(b) Each Member's Capital Account will be decreased by (1) the amount of
money distributed to such Member by the Company; (ii) the fair market value of any property
distributed to such Member by the Company; (Ili) the amount of any liabilities of such Member
that are assumed by the Company or that are secured by any property contributed by such
Member to the Company; and (iv) the amount of Losses allocated to such Member.
5.8 Compliance with Code and Treasury Regulations. The Members intend that the
terms of this Agreement regarding the computation and maintenance of the Capital Accounts of
the Members shall comply in all respects with the provisions of Section 704(b) of the IRS Code
and Treasury Regulations Section 1.704-1(b)(2)(iv) and applicable provisions of succeeding law
or regulations. The Company shall make such adjustments as may from time to time be
necessary in order to effectuate the intent of the Members with respect to such compliance.
6.9 Effect of Transfers. in the event of a permitted sale or other disposition of a
Membership Interest in the Company, the Capital Account of the transferor shall become the
Capital Account of the transferee to the extent such Capital Account relates to the transferred
portion of the Membership Interest.
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5.10 No Interest on Contributions. No Member shall be entitled to receive any interest
on such Member's Capital Contributions to the Company.
5.11 No Withdrawal of Contributions. No Member shall have the right to withdraw all
or any part of such Member's Capital Contribution or to receive any return on or of any part of
such Member's Capital Contribution, except as may otherwise be specified in these
Regulations.
5.12 No Prioritv. No Member shall have priority over any other Member, either as to
the return of Capital Contributions or as to Profits, Losses or distributions; provided, however,
that this subsection shall not apply to loans which a Member has made to the Company with the
approval of the Managers.
5.13 Negative Capital Accounts. No Member shall at any time have any liability to the
Company or the other Members for any negative balance in such Capital Accounts except to the
extent that such negative balance arose as the result of distributions in violation of this
Agreement or applicable law. Any negative capital account balance will not be a Company
asset: (a) to the extent that the deficit in any Member's capital account is attributable to the
Company's deductions and losses (including noncash items such as depreciation); or (b) to the
extent that the deficit in any Member's capital account is not attributable to distributions of
money in accordance with this Agreement to all Members in proportion to their respective
Membership Interests.
5.14 Limited Liability of Members. No Member shall be liable for the debts, obligations
or liabilities of the Company beyond such Member's Initial Contributions and Additional
Contributions to the Company.
5.15 Loans. Any Person may, with the consent of the Managers, lend or advance
money to the Company. If any Member shall make any loan or loans to the Company or
advance money on its behalf, the amount of any such loan or advance shall not be treated as a
Capital Contribution but shall be a debt due from the Company, repayable out of the Company's
cash and bearing interest at a rate agreed to by the Managers and the lending Member, but not
in excess of the maximum rate permitted by law. The rate of interest shall be determined by
taking into consideration prevailing interest rates and shall be no less favorable to the Company
than if the lender had been an independent third party. None of the Members shall be obligated
to make any loan or advance to the Company.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 Allocations of Profits and Losses. The Profits and Losses of the Company for
each Accounting Year (or portion thereof) shall be allocated among the Members in proportion
to their respective Membership Interests in the Company. Any credit available for federal
income tax purposes shall be allocated among the Members in the same manner.
6.2 Interim Distributions. Interim distributions of Distributable Cash shall be made at
such times as shall be determined by the Managers, in their sole discretion, by the Company to
the Members as follows:
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(a) First, 100% to the Members in the ratios of their Capital Contributions
until each of the Members has received cumulative distributions equal to his Capital
Contribution; and
(b) The balance to be distributed to the Members pro rata in accordance with
their respective Membership Interests.
6.3 Distributions on Termination. Upon the winding -up and termination of the
Company, its assets shall be distributed in the manner prescribed in Section 9.6 hereof.
6.4 Limitation on Distributions. Any other provision hereof to the contrary
notwithstanding, no interim distribution, withdrawal distribution or termination distribution to any
Member shall be declared and paid unless, after the distribution is made, the fair market value
of the assets of the Company is in excess of all liabilities of the Company other than liabilities to
the Members on account of their Capital Contributions.
6.5 Distributions in Kind. Regardless of the form of a Member's Capital Contribution
to the Company, such Member shall not be entitled to demand or receive a distribution from the
Company in any form other than cash.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 Books and Records. At the expense of the Company, the Managers shall
maintain those books and records required by Sections 3.15 and 101.501 of the TLLCL and
such other books and records of account as the Managers, in their reasonable discretion, deem
appropriate full and complete books and records of the operations and expenditures of the
Company at the Principal Office of the Company. Such books and records shall include, without
limitation, the following:
(a) A current list that states the name and mailing address of each Member
and the Membership Interest in the Company owned by each such Member;
(b) Copies of the federal, state and local information or income tax returns for
each of the Company's six (6) most recent tax years;
(c) A copy of the Certificate and this Agreement, together with all
amendments or restatements thereof, executed copies of any powers of attorney and copies of
any document that creates, in the manner provided by the Certificate or this Agreement, if any,
classes or groups of Members;
(d) Unless contained in the Certificate or this Agreement, a written statement
of the following:
(1) The amount of the cash Capital Contribution and a description and
statement or the agreed value of any other Capital Contribution made by each Member, and the
amount of the cash Additional Contribution and a description and statement of the agreed value
of any other Additional Contribution that the Member has agreed to make in the future;
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(2) The times at which Additional Contributions are to be made or
events requiring Additional Contributions to be made;
(3) The events requiring the Company to be terminated and its affairs
wound up; and
Member; and (4) The date on which each Member in the Company became a
(e) Correct and complete books and records of account of the Company
maintained in accordance with its Method of Accounting.
(f) An executed copy of any power of attorney.
7.2 Tax Returns, The Managers shall cause the timely preparation and filing of all
tax returns required to be filed by the Company pursuant to the IRS 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 therefrom, shall be furnished to the
Members within seventy-five. (76) days after the end of each Accounting Year of the Company.
7.3 Tax Elections. All tax elections permitted to be made by the Company under
federal, state or local laws shall be made by the Managers with the consent of a Majority in
Interest of all of the Members.
7.4 Tax Matters Partner. To the full extent permitted by the IRS Code and/or other
applicable law, the Members hereby designate David W. Scarmardo as the "Tax Matters
Partner" of the Company as that term is defined in Section 6231(a)(7) of the IRS Code. The
Tax Matters Partner shall be authorized to represent the Company and the Members in any
administrative or judicial proceeding involving the federal income tax liabilities of the Members
resulting from the activities of the Company. Costs and expenses incurred by the Tax Matters
Partner in connection with any such proceeding, including without limitation legal and
accounting fees and expenses, shall be borne by the Company.
ARTICLE Vill
TRANSFERS OF MEMBERSHIP INTERESTS
8.1 Transfers in General. Without obtaining the prior consent of the Majority of the
Managers, no Member shall have the right to sell, transfer or assign all or any portion of such
Member's Membership Interest in the Company, except for a Permitted Transfer (as defined in
Section 8.2 below) which meets the requirements of this Article Vill.
8.2 Permitted Transfers, Subject to the conditions and restrictions set forth in Section
8.3 hereof, a Member may at any time Transfer all or any portion of its Membership Interest to
(1) any other Member, (2) a Transfer according to the terms of Section 8,11 herein, (3) any
member of such Member's Immediate Family, or (4) a trust for the benefit of such Member or
any member of such Member's Immediate Family (any such Transfer being referred to in this
Company Agreement as a "Permitted Transfer"). For the purposes of this Agreement,
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"Immediate Family" shall mean the spouse, children, parents and/or lineal descendants of a
Member,
8.3 Conditions to Permitted Transfers. A Transfer shall not be treated as a Permitted
Transfer under Section 8.2 hereof unless and until the following conditions are satisfied:
(a) The transferor and transferee shall execute and deliver to the Company
such documents and instruments of conveyance as may be necessary or appropriate in the
opinion of counsel to the Company to effect such Transfer and to confirm the agreement of the
transferee to be bound by the provisions of this Article VIII.� In all cases, the Company shall be
reimbursed by the transferor and/or transferee for all costs and expenses that it reasonably
incurs in connection with such Transfer.
(b) Except in the case of a Transfer involuntarily by operation of law, the
transferor shall furnish to the Company an opinion of counsel, which counsel and opinion shall
be satisfactory to the Company, that the Transfer will not cause the Company to terminate for
federal income tax purposes.
(c) The transferor and transferee shall furnish the Company with the
transferee's taxpayer identification number, sufficient information to determine the transferee's
initial tax basis in the Membership Interest transferred, and any other information reasonably
necessary to permit the Company to file all required federal, state and local tax returns and
other legally required information statements or returns. Without limiting the generality of the
foregoing, the Company shall not be required to make any distribution otherwise provided for in
this Agreement with respect to any transferred Membership Interest until it has received such
information.
(d) Either (a) such Membership Interest shall be registered under the
Securities Act of 1933, as amended, and any applicable state securities laws, or (b) the
transferor shall provide an opinion of counsel, which opinion and counsel shall be satisfactory to
the Company, to the effect that such Transfer is exempt from all applicable registration
requirements and that such Transfer will not violate any applicable laws regulating the Transfer
of securities.
8A Tax Restrictions on Transfers. Any other provision hereof to the contrary
notwithstanding, no Member shall sell, transfer or assign any portion of such Member's
Membership Interest without the prior written consent of the Managers and all of the other
Members if such sale, transfer or assignment:
(a) Would, when added to the total of all other sales, transfers or
assignments of Membership Interest effected within the preceding twelve (12) months, result in
the Company being considered to have terminated for federal income tax purposes within the
meaning of Section 708 of the Code; or
(b) Would otherwise cause the Company to lose its status as a partnership
for federal income tax purposes.
8.5 Securities Restrictions on Transfer. The Membership Interests have been
acquired for investment and have not been registered under the Securities Act of 1933, as
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amended (the "1933 Act"), or any state securities laws and may not be transferred in violation of
the 1933 Act or any applicable state securities law or any rule or regulation promulgated
thereunder. Consequently, any other provision hereof to the contrary notwithstanding, no
Membership Interest may at any time be sold, pledged or otherwise transferred until and unless
either (i) such Membership Interest has been registered under the 1933 Act and all applicable
state securities laws; or (if) the Company has been provided with an opinion of counsel
satisfactory to the Company in all respects that such registration is not required for such sale,
pledge or other transfer. It is not anticipated that the Company will, and the Company shall at
no time be obligated to, register any of the Membership Interests under the 1933 Act or any
state securities laws or maintain any information regarding the company publicly available for
purposes of any provisions of 1933 Act or any state securities laws or any rule or regulation
promulgated thereunder.
8.6 Assignment Procedures, Subject to the foregoing restrictions, all or part of a
Member's Membership Interest (the "Assigned Interest") may be transferred by such assigning
Member (the "Assignor") to the assignee (the "Assignee") named in a written instrument of
assignment (the "Assignment") in form and substance satisfactory to the Company and which
otherwise complies with the provisions of this Agreement. An Assignment shall be duly
executed and acknowledged by the Assignor and the Assignee (or their respective personal
representatives or authorized agents) and shall contain (i) an agreement by the Assignee to be
bound by all the terms of this Agreement and (ii) a representation by the Assignor and the
Assignee that such transfer has been made in compliance with the 1933 Act and all applicable
state securities laws as required by Section 8.6 hereof. The Assignment shall be delivered to
the Company and shall be accompanied by such evidences of authority, such assurances of
genuineness and effectiveness, such consents, approvals or waivers of governmental or other
authorities and such other documentation as may reasonably be required by the Company.
Such Assignment and other documentation shall be accompanied by a payment to the
Company of such amount as shall be reasonably required as reimbursement by the Company
for its costs and expenses paid or incurred in connection with such Assignment. Any such
Assignment shall be effective, as to the Company, as of the later of (i) the effective date
specified in such Assignment; or (ii) the date on which such Assignment has been determined
by the Company to conform to the requirements of this Agreement and has been duly recorded
in the books of the Company.
8.7 Effect of Assignment. No Assignment shall entitle the Assignee to become, or to
exercise the rights or powers of, a Member of the Company until and unless the requirements of
Section 8.9 hereof have been satisfied. Whether or not an Assignee becomes a Member of the
Company, the Assignor shall not be released from the Assignor's liability to the Company with
respect to the Assigned Interest. Until and unless an Assignee becomes a Member in
accordance with Section 8.9 hereof, the Assignor will continue to be a Member with respect to
the Assigned Interest and will continue to have the power to exercise any rights or powers of a
Member with respect to such Assigned Interest, except to the extent that such rights or powers
are assigned; provided, however, that the assignment of such rights or powers shall, except as
otherwise expressly provided herein to the contrary, be binding only as between the Assignor
and the Assignee and the Company may continue to rely on the exercise of such rights and
powers by the Assignor as to the Assigned Interest until and unless the Assignee becomes a
Member in the manner herein prescribed with respect to the Assigned Interest. Except as
otherwise provided in the preceding sentence, an Assignor who has assigned all of such
Assignor's Membership Interest shall cease to be a Member of the Company.
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8.8 Rights of Assignees. An Assignee who has not become a Member shall be entitled,
from and after the effective date of the Assignment, to receive allocations and distributions from
the Company with respect to the Assigned Interest, and, for any proper purpose, to require
reasonable information or account from the Company and to make reasonable inspection of the
Company's books and records.
8.9 Admission of Assignees as Members. Except as a result of a Permitted Transfer,
no Assignor shall have the right to substitute an Assignee as a Member with respect to any
Assigned Interest. Any such Assignee may be admitted as a Member of the Company with
respect to the Assigned Interest only with the prior written consent of the Majority of the
Managers, which consent may be granted or withheld in the sole discretion of such other
Managers. The foregoing provisions to the contrary notwithstanding, however, any Assignee
who was a Member prior to and at the time of any Assignment shall automatically be entitled to
exercise the rights of a Member with respect to the Assigned Interest without any further action
on the part of the other Members.
8.10 Admission of New Members. Any person may become a Member by purchasing a
new Membership Interest from the Company on such terms and conditions as shall have been
approved by a Majority of the Managers.
8.11 Buy Sell Provisions.
(a) Any Member may exercise its right to initiate the provisions of this Section 8.11,
provided either such exercise shall not cause a breach of, nor a default under, any contract or
agreement by which the Company is bound, or such Member obtains the necessary consents
and/or approvals for the exercise of such right from the appropriate parties. The Member
desiring to exercise such right (the "Offeror") shall do so by giving notice to the Company and all
other Members (the "Offerees") setting forth a statement of intent to invoke its rights under this
Section 8.11; stating therein the aggregate dollar amount (the "Valuation Amount") which the
Offeror would be willing to pay for the assets of the Company as of the Closing Date (hereinafter
defined) free and clear of all liabilities, and setting forth a calculation of the amounts which the
Offeror and each of the Offerees would receive, respectively, from the sale of their Membership
Interests, applying the subsequent provisions of this Section 8.11.
(b) After receipt of such notice from the Offeror, the Company shall have the option, to
be authorized by a vote of a Majority of the Managers, for a period of thirty (30) days from the
date such notice from the Offeror described above, to purchase the entire Membership Interest
of the Offeror for an amount equal to the amount the Offeror would have been entitled to receive
if the Company had sold all its assets for the Valuation Amount on the Closing Date and the
Company had Immediately paid their interests in the Company pursuant to Section 9.6 (the
"Offeror's Sale Price"). if the Company exercises its option to purchase the entire Membership
Interest of the Offeror, delivery of such Membership Interest by the Offeror and payment
therefor shall be made as follows:
(i) At closing to occur within thirty (30) days after the Company exercises its
option, the Offeror shall deliver the certificate or certificates, if any, representing
the Membership Interest to be sold at the principal place of business of the
Company duly endorsed in blank or transfer or accompanied by an appropriate
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stock power, together with all other documents necessary or appropriate for an
effective transfer. Offeror shall transfer and assign to the Company, free and
clear of all liens, claims, and encumbrances, with covenants of general warranty,
the interest being disposed of, and shall execute and deliver to the Company all
documents which may be required to give effect to the disposition and acquisition
of such interest; and
(ii) The Company shall simultaneously with the delivery of the Membership
Interest as hereinabove provided deliver to the Offeror at the principal place of
business of the Company, the Offeror's Sale Price which shall be paid as follows:
Ten percent (10%) of the Offeror's Sale Price to be paid in cash at closing and
the execution and delivery of a promissory note executed by the Company
payable to the Offeror for the remaining ninety percent (90%) of the Offeror's
Sale Price (hereinafter the "Note"). The Note shall provide for payment of the
principal and interest in ten (10) equal annual installments and shall bear interest
at the Prime Rate (as defined below) established as of the date of the closing.
The Note shall be delivered at closing and shall be secured by Membership
Interest being sold. The first installment shall be due one year from the date of
delivery as provided in Section 8.11(b)(1) above. The Note shall provide that
upon default in the payment of any installment, the entire unpaid balance thereof
may, at the option of the payee, become due and payable immediately. As used
herein "Prime Rate" refers to the highest variable rate of interest, per annum,
regularly published in the "Money Investing" section of The Wail Street Journal
Newspaper as the PRIME RATE under the MONEY RATES. As presently
published such rate is followed by the words "The base rate on corporate loan at
large U.S. Money Center Banks." In the event the Wall Street Journal ceases
to publish a prime rate in exactly this manner, the rate as given by the new
manner of publication will be used, so long as it continues to represent "The base
rate on corporate loans at large U. S. Money Center Banks." In the event the
Wall Street Journal ceases to be published, or ceases to publish a prime rate
conforming to the previous sentence, the prime or base rate of the JPMorgan
Chase Bank, N.A. will be used.
(c) In the event the Company does not exercise its option to purchase the entire
Membership Interest of the Offeror within the thirty (30) day period as described in Section
8.11(b) above, the Offerees, other than the Company, shall either (I) sell all of their Membership
Interests to the Offeror for an amount equal to the amount the Offerees would have been
entitled to receive if the Company had sold its assets for the Valuation Amount on the Closing
Date and the Company had immediately paid all Company liabilities and distributed the net
proceeds of sale to the Members in satisfaction of their interests in the Company pursuant to
Section 9.6; or (11) purchase the entire Membership Interest of the Offeror for an amount equal to
the amount the Offeror would have been entitled to receive if the Company had sold all its
assets for the Valuation Amount on the Closing Date and the Company had immediately paid
their interests in the Company pursuant to Section 9.6. The Offerees shall have thirty (30) days
after the expiration of the 30-day option period granted to the Company described in Section
8.11(b) In which to exercise either of their options by giving written notice to the Offeror. In the
event that more than one of the Offerees elect to purchase all of the Membership Interests of
Offeror, such Membership Interests may be purchased in such proportion as the acquiring
Offerees may agree among themselves or, in the absence of an agreement, in the same
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proportion in which the Membership Interests owned by each of the acquiring Offerees bears to
all of the Membership Interests in the Company, excluding the Membership Interests owned by
the Offeror and the non -acquiring Offerees.
For the purchase of the Offeror's Membership Interest by each individual acquiring
Offeree, the following procedures shall apply. The closing of an acquisition by an acquiring
Offeree pursuant to this Section 8.11(c) shall be held at the principal place of business of the
Company on a mutually acceptable date (the "Closing Date") not later than thirty (30) days after
the acquiring Offerees' election to purchase of the Offeror's Membership Interest. At the
Closing of the disposition and acquisition of such interest the following shall occur:
(1) The Offeror shall deliver the certificate or certificates, if any,
representing the Membership Interest to be sold at the principal place of
business of the Company duly endorsed in blank or transfer or
accompanied by an appropriate stock power, together with all other
documents necessary or appropriate for an effective transfer. The Offeror
shall transfer and assign to the acquiring Member, free and clear of all
liens, claims, and encumbrances, with covenants of general warranty, the
interest being disposed of, and shall execute and deliver to the acquiring
Member all documents which may be required to give effect to the
disposition and acquisition of such interest; and
(H) Each acquiring Member shall, simultaneously with the delivery of the
Membership Interest as hereinabove provided, deliver to the Offeror at
the principal place of business of the Company, the acquiring Member's
percentage share of the Offeror's Sale Price which shall be paid as
follows: Ten percent (10%) of the acquiring Member's percentage share
of the Offeror's Sale Price to be paid in cash at closing and the execution
and delivery of a promissory note executed by the acquiring Member
payable to the Offeror for the remaining ninety percent (90%) of the
acquiring Member's percentage share of the Offeror's Sale Price
(hereinafter the "Note"). The Note shall provide for payment of the
principal and interest in ten (10) equal annual installments and shall bear
interest at the Prime Rate (as defined above) established as of the date of
the closing. The Note shall be delivered at closing and shall be secured
by Membership Interest being sold to the individual acquiring Member.
The first Installment shall be due one year from the date of delivery as
provided in Section 8.11(c)(i) above. The Note shall provide that upon
default in the payment of any installment, the entire unpaid balance
thereof may, at the option of the payee, become due and payable
immediately.
(d) If none of the Offerees exercise the option to purchase all of the Membership
Interest of the Offeror set forth in Section 8.11(c) above by giving written notice within such time
period as provided herein, all Offerees shall be deemed to have elected to sell their interests to
the Offeror. The closing of an acquisition by the Offeror pursuant to this Section 8.11(d) shall be
held at the principal place of business of the Company on a mutually acceptable date (the
"Closing Date") not later than thirty (30) days after the expiration of the Offerees' 30-day election
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period provided in Section 8.11(c). At the Closing of the disposition and acquisition of such
interest, the following shall occur:
(i) The Offerees shall deliver the certificate or certificates, if any,
representing the Membership Interest to be sold at the principal place of
business of the Company duly endorsed in blank or transfer or
accompanied by an appropriate stock power, together with all other
documents necessary or appropriate for an effective transfer. The
Offerees shall transfer and assign to Offeror, free and clear of all liens,
claims, and encumbrances, with covenants of general warranty, the
interest being disposed of, and shall execute and deliver to Offeror all
documents which may be required to give effect to the disposition and
acquisition of such interest; and
(ii) Offeror shall pay to the Offerees the Valuation Amount in cash, and
shall execute an agreement indemnifying the selling Members from all
debts, obligations, and liabilities of the Company except those arising out
of a breach hereof by the selling Members.
(e) Remedies to Enforce Buy -Sell. The remedy at law for breach of the obligations of
the Members and the Company set forth in this Section 8.11 is inadequate in view of (i) the
complexities and uncertainties in measuring the actual damage to be sustained by reason of the
failure of a Member to comply fully with such obligations, and (ii) the uniqueness of the
Company business and the Members' relationship. Accordingly, each of such obligations shall
be, and is hereby expressly made, enforceable by a specific performance.
ARTICLE IX
WINDING UP AND TERMINATION
9.1 Event Requiring a Winding -Up. Except as set out below, upon the happening of
the first to occur of the following events. The Company will begin to wind up its affairs:
(a) Upon the execution of an instrument approving the winding up of the
Company by all of the Managers;
(b) The last remaining Member discontinues being a Member of the
Company.
(c) The occurrence of a non-waivabie event under the terms of the TLLCL
which requires the winding up of the Company
9.2 Revocation. If an event of the type described in Section 9.1(a) occurs or any
other voluntary act of the Members which require a winding up of the Company, the event may
be revoked at any time prior to the termination of the Company by a determination of Majority
of the Members.
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9.3 Cancellation. If an event of the type described in Section 9.1(c) occurs, the
event may be cancelled, in writing, at any time within 1 year after the occurrence of such event
if such action meets the requirements of Section 11.152(d) of the TLLCL.
9.4 Interim Manager. If an event requiring winding up occurs and there is no
remaining Manager, a Majority of the Members may appoint an interim manager of the
Company, who will have and may exercise only the rights, powers, and duties of the Managers
necessary to preserve the Company assets, until new Managers, if any, are elected.
9.6 Effect of Event Requiring a Winding Up. If an event requiring a winding up
occurs and is not canceled or revoked, the Company will begin winding up its affairs and will
continue until the assets have been distributed as set out below:
9.6 Winding Up and Termination.
(a) General. As expeditiously as possible following the occurrence of an
event requiring a winding up, the Managers will proceed to wind up the affairs of the Company,
liquidate assets, pay liabilities, and make liquidating distributions to the Members, in the
following order of priority:
(1) the Managers shall cause an accounting to be made by a
recognized firm of certified public accountants of the Company's assets,
liabilities, and operations through the last day of the calendar month in
which the event requiring winding up occurs;
(2) the Managers will use commercially reasonable efforts to
maximize the value of the Company assets and then to sell Company
assets. Any resulting Profits or Losses from each sale will be computed
and allocated to the Capital Accounts of the Members in the manner
described in Article 6;
(3) the Managers shall cause the notice described in Section 11.052
of TLLCL to be mailed to each known creditor of and claimant against
the Company in the manner described in that Section);
(4) the Managers will pay, to the extent there are funds available
therefor, all of the Company's obligations and establish such reserves as
the Managers deems prudent (the "Liquidation Reserve");
(5) all remaining assets of the Company shall be distributed to the
Members as follows:
(A) with respect to all Company property that has not been
sold, the fair value of that property shall be determined and the
Capital Accounts of the Members shall be adjusted to reflect the
manner in which the unrealized income, gain, loss, and deduction
inherent in property that has not been reflected in the Capital
Accounts previously would be allocated among the Members if
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there were a taxable disposition of that property for the fair value
of that property on the date of distribution; and
(B) Company property shall be distributed among the
Members in accordance with the positive capital account
balances of the Members, as determined after taking into account
all capital account adjustments for the taxable year of the
Company during which the liquidation of the company occurs;
and those distributions shall be made by the end of the taxable
year of the Company during which the liquidation of the Company
occurs (or, if later, 90 days after the date of the liquidation).
(C) All distributions in kind to the Members shall be made
subject to the liability of each distributee for costs, expenses, and
liabilities theretofore incurred or for which the Company has
committed prior to the date of termination and those costs,
expenses, and liabilities shall be allocated to the distributee
pursuant to this Article.
(D) all remaining cash and other Company property (other
than the Liquidation Reserve) will be distributed among the
Members as set out in Article VI.
(E) The distribution of cash and/or property to a Member in
accordance with this Article constitutes a complete return to the
Member of its Capital Contributions and a complete distribution to
the Members of its Membership Interest.
(b) Powers. Until final distribution, the Managers will continue to operate the
Company properties with all of the power and authority of the Managers.
(c) Cost of Liquidation. The costs of liquidation will be borne as a Company
expense.
(d) Termination: Release of Liquidation Reserve. At the time such
distributions are made and the Liquidation Reserve established in accordance with subsection
(a), the Company will terminate, but if at any time thereafter any of the funds in the Liquidation
Reserve are released because, in the opinion of the Managers, the need for such reserve has
ended, such funds will be distributed in accordance with subsection (a).
(e) No Recourse, No Member will have any recourse against the Company
or any other Member for the return of its Capital Contributions or any distributions not required
by this Agreement.
9.7 Cancellation of Certificate. On completion of the distribution of Company assets
as provided herein, the Company is terminated, and the Managers (or such other person or
persons as the TLLCL may require or permit) will cause the cancellation of the Certificate and
any other filings made by the Company and will take such other actions as may be necessary
to terminate or reflect the termination of the Company.
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9.8 Distributions in Kind. If any assets of the Company are distributed in kind, such
assets shall be distributed to the Members entitled thereto as tenants in common in the same
proportions as the Members would have been entitled to cash distributions if such property has
been sold for cash and the net proceeds thereof distributed to the Member. In the event that
distributions in kind are made to the Members upon termination and liquidation of the
Company, the Capital Account balances of such Members shall be adjusted to reflect the
Members' allocable share of gain or loss which would have resulted if the distributed property
had been sold at its fair market value.
ARTICLE X
CERTIFICATES REPRESENTING MEMBERSHIP INTEREST
10.1 Form of Certificates. The Company shall deliver certificates representing all
Units to which Members are entitled. Certificates representing Units shall be in such form as
shall be determined by the Members and shall be numbered consecutively and entered in the
books of the Company as they are issued. Each certificate shall state on the face thereof that
the Company is organized under the Law of this State, the holder's name and the number of
Units. They shall be signed by the Manager(s) or by the President or a Vice President and the
Secretary or an Assistant Secretary, and may be sealed with the seal of the Company or a
facsimile thereof if the Company shall then have a seal.
10.2 Lost Certificates. The Members may direct that a new certificate be issued in
place of any certificate theretofore issued by the Company alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to
be lost or destroyed, When authorizing the issue of a new certificate, the Members, in Its
discretion and as a condition precedent to the issuance thereof, may require the owner of the
lost or destroyed certificate, or his legal representative, to advertise the same In such manner
as it shall require and/or give the Company a bond in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be made against the
Company with respect to the certificate alleged to have been lost or destroyed.
10.3 Transfer of Membership Interest. Units may be transferable only on the books
of the Company by the holder thereof in person or by his duly authorized attorney and, upon
surrender to the Company or to the transfer agent of the Company of a certificate representing
the Units duly endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, it shall be the duty of the Company or the transfer agent of the Company
to issue a new certificate to the person entitled thereto (provided such person has complied
with the requirements of this Agreement, and the transfer has been approved by a Majority in
Interest of the Members) cancel the old certificate, and record the transaction upon its books.
10.4 Restriction on Transfer. Any restrictions imposed by the Company on the sale
or other disposition of its Membership Interest and on the transfer thereof must be copied at
length or in summary form and placed conspicuously on the face of each certificate
representing Membership Interest to which the restriction applies. The certificate may,
however, state on the face that such a restriction exists pursuant to a specified document and
that the Company will furnish a copy of the document to the holder of the certificate without
charge upon written request to the Company at its principal place of business.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Notices, Any notice, demand or communication required or permitted to be
given by any provision of this Agreement shall be made in writing, shall be sent or addressed
as set forth below and shall be deemed to have been sufficiently given or served for all
purposes (1) upon actual receipt thereof, if given by regular mail, personal delivery, courier
service, telegram, telex, facsimile transmission or other commercially reasonable means; and
(ii) upon the earlier of actual receipt of three (3) business days after being deposited in a
receptacle for the deposit of mail regularly maintained by the U.S. Postal Service, if given by
registered or certified mail, return receipt requested, with postage and charges prepaid.
Notices and other communications to the Company shall be sent or addressed to its Principal
Office and notices and other communications to the Members and Managers shall be sent or
addressed to their last known address as it appears on the records of the Company. The
Company and any Member shall be entitled to change any such address for notice purposes
upon giving not less than ten (10) days' prior written notice of such change of address to the
Company or the Member, as may be applicable.
11.2 Governing Law. This Agreement and the construction, interpretation and
application thereof, shall be governed exclusively by the TLLCL and other applicable laws of
the State of Texas.
11.3 No Partition Action. No Member (or former Member) shall have any right to
maintain any action for partition with respect to the property of the Company or with respect to
any assets distributed to the Members in kind as tenants in common upon the winding up and
termination of the Company.
11.4 Captions and Headings. The captions and headings used in this Agreement are
for convenience of reference only and shall not be taken into account in construing the
meaning and/or intent of this Agreement.
11.5 Intentionally Deleted.
11.6 Amendment of this Aareement. While the Initial Managers are the Managers of
the Company, the Certificate and this Agreement may be amended, supplemented or restated
by written consent of a Majority of the Managers. In the event one or more of the Initial
Managers are no longer acting in that capacity and except as herein otherwise expressly
provided, the Certificate and/or this Agreement may be amended, supplemented or restated by
written consent of a Majority of the Managers; provided, however, that any such amendment
which would reduce the required voting requirements of the Members or would reduce a
Member's interest in the Company or would impose any personal liability on such Member to
make additional Capital Contributions to the Company or create personal liability as a result of
any Company indebtedness, except as may already be expressly provided for herein, will
require the approval and consent of the affected Members. In the event none of the Initial
Managers are acting as Managers and except as herein otherwise expressly provided, the
Certificate or this Agreement may be amended, supplemented or restated by written consent of
a Majority in Interest of the Members. A copy of any amendment to be approved by the
Managers will be mailed in advance to the Members. Upon obtaining the approval of any such
amendment, supplement or restatement as to the Certificate, the Managers shall cause an
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amended certificate of formation to be prepared, executed and filed in accordance with the
TLLCL.
11.7 Number and Gender. Where the context so indicates, the singular shall include
the plural, the use of any gender shall include all other genders and any reference to the term
"person" shall include an individual and a corporation, limited liability company, association,
partnership, joint venture, estate, trust or any other entity.
11.8 Binding Effect. Except as herein otherwise expressly provided, this Agreement
shall be binding upon and shall inure to the benefit of the Managers and the Members and their
respective heirs, legal representatives, executors, administrators, distributes, successors and
assigns.
11.9 Severability. If any one or more of the provisions contained in this Agreement
for any reason are held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof and this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions had never been
contained herein.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original and shall be binding upon the Manager or Member who
executed same, but all of such counterparts together shall constitute one instrument and may
be sufficiently evidenced by one counterpart.
11.11 Sole and Absolute Discretion. Notwithstanding anything herein to the contrary,
whenever a party to this Agreement is entitled to exercise its "sole" or its "sole and absolute"
discretion, such discretion may be exercised by that party for any reason or for no reason,
whether such discretion is arbitrary, uncontrolled or unreasonable. Any parties' exercise of its
"sole" or its "sole and absolute" discretion shall be final and shall not be subject to appeal or be
subject to adjudication by a court of law, arbitration, mediation, or otherwise.
IN WITNESS WHEREOF, the undersigned Members and Managers have adopted and
signed this Agreement as of the date first written above.
MEMBERS AN MANAGERS:
Da 'd W. Scarmardo,
Member and
�Manager
l t�+
A" "
Carl Gregory Scarmard ,
Member and Manager
(000946051
9
Mark C. Scarmardo,
Member and Manager
Page 28
CONSENT BY SPOUSE
Doreen Scarmardo, the wife of David W. Scarmardo, Member, hereby subscribes her
name in evidence of her agreement to the covenants, ms and conditionsons of the
Company Agreement dated effective September 7, 201 .
Doreen carmardo
CONSENT BY SPOUSE
Annette Scarmardo, the wife of Carl Gregory Scarmardo, Member, hereby subscribes
her name in evidence of her agreement to the covenants, terms and conditions of the foregoing
Company Agreement dated effective September 7, 2010.
Annette Scarmardo
CONSENT BY SPOUSE
Shannon Scarmardo, the wife of Mark C. Scarmardo, Member, hereby subscribes her
name in evidence of her agreement to the covenants, terms and conditions of the foregoing
Company Agreement dated effective Septe4;A
o
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Names and
Addresses
David W. Scarmardo
P.O. Box 4508
Bryan, TX 77805
Carl Gregory Scarmardo
P.O, Box 4508
Bryan, TX 77805
Mark C. Scarmardo
P.O. Box 4508
Bryan, TX 77805
100MI1:3111
NAMES, INITIAL CONTRIBUTIONS AND
MEMBERSHIP INTERESTS OF MEMBERS
Initial
Membership
Contribution
Interest
$1,000.00
1,000 units
$1,000.00 1,000 units
$1,000,00 1,000 units
(00094605) 'age 30
LEGAL DESCRIPTION OF PROPERTY
Parcel I: Block Y, University Park, Section Il, City of College Station, according to the correction plat
thereof recorded in Volume 519, Page 384, of the Deed Records of Brazos County, Texas; and
Parcel II: Lots 3B and 3D, Block 1, Gateway Subdivision Phase 3, being a repiat of Lot 1, Block 1, City of
College Station, according to plat thereof recorded in Volume 9112, Page 139, of the Official Records of
Brazos County, Texas.
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