EXHIBIT 99.2
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U-C HOLDINGS, L.L.C.
A Delaware Limited Liability Company
________________________________________________________________________________
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of May 15, 1997
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT
BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT
EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND
COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
1.1 Certain Definitions 1
1.2 Other Definitions 5
1.3 Construction 5
ARTICLE II ORGANIZATION 6
2.1 Formation 6
2.2 Name 6
2.3 Registered Office; Registered Agent; Principal Office; Other Offices 6
2.4 Purposes 6
2.5 Term 7
2.6 No State-Law Partnership 7
ARTICLE III MEMBERSHIP; MEMBER UNITS 7
3.1 Members 7
3.2 Liability of Members 7
3.3 No Authority to Bind Company 8
3.4 Member Units 8
3.5 Issuance of Additional Units and Interests; Admission of New
Members; Additional Capital Contributions 8
3.6 Representations, Warranties and Agreements of the Members 10
3.7 Initial Capital Contributions 11
3.8 Defaulting Members 11
3.9 Outstanding Units 12
ARTICLE IV CAPITAL ACCOUNTS 12
4.1 Establishment and Determination of Capital Accounts 12
4.2 Computation of Amounts 12
4.3 Interest; Withdrawal 13
ARTICLE V DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES 12
5.1 Generally 13
5.2 Distributions 13
5.3 Allocation of Profits and Losses 14
5.4 Initial Capital Contributions 14
5.5 Tax Allocations; Code Section 704(c) 15
ARTICLE VI MANAGEMENT OF THE COMPANY 15
6.1 Managing Member 16
6.2 Delegation by Managing Member 16
6.3 Resignation; Vacancy; Removal 16
6.4 Compensation 16
6.5 Board Membership of Subsidiaries 17
ARTICLE VII MEMBERS 17
7.1 Membership Status; Resignation 17
7.2 No Participation in Management 18
7.3 Voting Rights Generally; Voting of Units 18
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7.4 Conflicts of Interest 18
7.5 Outside Activities 18
7.6 Confidentiality 18
ARTICLE VIII EXCULPATION AND INDEMNIFICATION 19
8.1 Exculpation 19
8.2 Right to Indemnification 19
8.3 Advance Payment 20
8.4 Indemnification of Employees and Agents 20
8.5 Appearance as a Witness 20
8.6 Nonexclusivity of Rights 20
8.7 Savings Clause 20
ARTICLE IX TAXES 20
9.1 Tax Returns 21
9.2 Tax Matters Partner 21
ARTICLE X BOOKS, REPORTS 21
10.1 Maintenance of Books 21
10.2 Member Tax Information 21
ARTICLE XI TRANSFERS 22
11.1 Assignment by Members 22
11.2 Void Transfers 22
11.3 Substituted Member 22
11.4 Effect of Assignment 23
11.5 Permitted Transfers 23
11.6 Deliveries for Transfer 23
11.7 Prospective Transferees 24
11.8 Legend 24
11.9 Effective Date 24
ARTICLE XII DISSOLUTION, LIQUIDATION AND TERMINATION 24
12.1 Dissolution 24
12.2 Liquidation and Termination 25
12.3 Management Holder Give Back 26
12.4 Cancellation of Certificate 26
ARTICLE XIII GENERAL PROVISIONS 27
13.1 Notices 27
13.2 Entire Agreement 27
13.3 Effect of Waiver or Consent 27
13.4 Amendment, Modification or Waiver 27
13.5 Binding Effect 28
13.6 Governing Law; Severability 28
13.7 Further Assurances 28
13.8 Waiver of Certain Rights 28
13.9 Indemnification and Reimbursement for Payments on Behalf of a Member 28
13.10 Notice to Members of Provisions 29
13.11 Counterparts 29
13.12 Consent to Jurisdiction 29
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13.13 Headings 29
13.14 Remedies 29
13.15 Parties In Interest 29
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SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF U-C HOLDINGS, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF U-C
HOLDINGS, L.L.C. (this "Agreement"), dated as of May 15, 1997, is adopted by,
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and executed and agreed to, for good and valuable consideration, by ▇▇▇▇▇▇ ▇▇▇▇▇
& Partners, L.P., a Delaware limited partnership ("▇▇▇▇▇▇ ▇▇▇▇▇"), and the other
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Persons listed on Schedule A hereto and amends and restates in its entirety the
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Limited Liability Company Agreement, dated as of April 25, 1997, as amended and
restated as of May 9, 1997, by and among ▇▇▇▇▇▇ ▇▇▇▇▇ and the other parties
signatory thereto.
ARTICLE I
DEFINITIONS
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1.1 Certain Definitions. As used in this Agreement, the following terms
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have the following meanings:
"Act" means the Delaware Limited Liability Company Act, Title 6, Sections
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18-106 to 18-1107 and any successor statute, as amended from time to time.
"Affiliate" means, with respect to a Person, another Person that directly,
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or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person, where "control" means the
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possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities,
contract or otherwise.
"Aggregate Management Percentage" means, on any date of determination, the
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lesser of (i) 25% or (ii) the sum of (A) the Applicable Class A Percentage and
(B) the Applicable Class B Percentage.
"Applicable Class A Catch-up Percentage" means, on any date of
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determination, the quotient obtained by dividing (i) the Applicable Class A
Percentage by (ii) the Aggregate Management Percentage.
"Applicable Class A Percentage" means, on any date of determination, the
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lesser of (i) 20% or (ii) 20% of the quotient obtained by dividing (A) the
number of outstanding Class A Management Units on such date by (B) 2,000.
"Applicable Class B Catch-up Percentage" means, on any date of
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determination, the quotient obtained by dividing (i) the Applicable Class B
Percentage by (ii) the Aggregate Management Percentage.
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"Applicable Class B Percentage" means, on any date of determination, the
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lesser of (i) 5% or (ii) 5% of the quotient obtained by dividing (A) the number
of outstanding Class B Management Units on such date by (B) 500.
"Book Value" means, with respect to any Company property, the Company's
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adjusted basis for federal income tax purposes, adjusted from time to time to
reflect the adjustments required or permitted by Treasury Regulation Sections
1.704-l(b)(2)(iv)(d)-(g).
"Business Day" means any day other than a Saturday, a Sunday or a holiday
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on which national banking associations in the State of Illinois are closed.
"Capital Contribution" means the aggregate contributions made by a Member
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to the capital of the Company. The initial Capital Contribution of each Member
is shown opposite such Member's name on Schedule A, as the same may be amended
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from time to time.
"Cash Inflows" means, with respect to the Investors, all payments or
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distributions of cash received by such Investors directly from the Company with
respect to the Investor Units issued to the Investors pursuant to this
Agreement.
"Cash Outflows" means, with respect to the Investors, all Capital
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Contributions made by such Investors with respect to Investor Units issued to
the Investors pursuant to this Agreement.
"Class A Management Units" means (i) the Class A Management Units
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originally issued to ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
pursuant to this Agreement and designated as Class A Management Units on
Schedule A and (ii) any Class A Management Units issued with respect to such
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Class A Management Units by way of dividend or Unit split or in connection with
a combination of Units, recapitalization, merger or other reorganization. A
Class A Management Unit will continue to be a Class A Management Unit in the
hands of any Person to which such Unit is transferred.
"Class B Management Units" means (i) the Class B Management Units
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originally issued pursuant to this Agreement and designated as Class B
Management Units on Schedule A and (ii) any Class B Management Units issued with
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respect to such Class B Management Units by way of dividend or Unit split or in
connection with a combination of Units, recapitalization, merger or other
reorganization. A Class B Management Unit will continue to be a Class B
Management Unit in the hands of any Person to which such Unit is transferred.
"Code" means the Internal Revenue Code of 1986, as amended, and any
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successor statute. Such term shall be deemed to include any future amendments
to the Code or any successor statute to the extent the Managing Member
determines that any such amendments do not adversely affect the relative
economic interests of the Members hereunder.
"Company" means U-C Holdings, L.L.C., a Delaware limited liability company.
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2
"Entity" means any general partnership, limited partnership, corporation,
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association, cooperative, joint stock company, trust, limited liability company,
business trust, joint venture, unincorporated organization, governmental entity
(or any department, agency or political subdivision thereof) or other entity.
"Equity Protection Agreements" means those certain Equity Protection
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Agreements of even date herewith by and between the Company and UCTV.
"Escrow Agreement" means that certain Escrow Agreement of even date
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herewith by and among UCTV, U-C Holdings, L.L.C. and LaSalle National Bank.
"Family Group" means a Unitholder's spouse and descendants (whether natural
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or adopted) and any trust solely for the benefit of such Unitholder and/or such
Unitholder's spouse and/or descendants.
"Fiscal Year" of the Company means the Company's annual accounting period
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ending on December 31.
"Investor" means any holder of Investor Units.
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"Investor Units" means (i) any Investor Units originally issued to the
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Investors pursuant to this Agreement and designated as Investor Units on
Schedule A, (ii) any Investor Units otherwise acquired by a Person holding
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Investor Units and (iii) any Investor Units issued with respect to the Investor
Units referred to in clauses (i) or (ii) by way of dividend or Unit split or in
connection with a combination of Units, recapitalization, merger or other
reorganization. An Investor Unit will continue to be an Investor Unit in the
hands of any Person to which such Unit is transferred.
"IRR" means the annual interest rate (compounded annually) which, when used
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to calculate the net present value as of April 25, 1997, of all (i) Cash Inflows
received by the Investors through the date of determination and (ii) Cash
Outflows made by the Investors through the date of determination, causes such
entire amount to equal zero. The IRR shall be determined by the Company's
regular outside accounting firm. For purposes of the net present value
calculation, each Cash Inflow and each Cash Outflow specified above shall be
deemed to have been received or made on the first day of the month nearest to
the actual date of such payment.
"IRR Target" means that the Investors have achieved an IRR of 30%.
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"Losses" for any period means all items of Company loss, deduction and
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expense for such period determined in accordance with Section 4.2.
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"Management Holder" means any holder of Management Units.
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"Management Units" means, collectively, the Class A Management Units and
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the Class B Management Units.
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"Member" means any Person executing this Agreement as of the date of this
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Agreement as a Member or hereafter admitted to the Company as a Member in
accordance with this Agreement and the Act, but does not include any Person who
has ceased to be a member of the Company or no longer owns Units. The Members
shall constitute the "members" (as that term is defined in the Act) of the
Company.
"Person" means any individual or Entity, and the heirs, executors,
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administrators, legal representatives, successors and assigns of such Person
where the context so permits.
"Permitted Transferee" means (i) with respect to any Unitholder who is a
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natural person, a member of such Unitholder's Family Group and any Transferee
pursuant to applicable laws of descent and distribution and (ii) with respect to
any Unitholder which is an Entity, any of such Unitholder's Affiliates.
"Preferred Units" means (i) any Preferred Units originally issued to ▇▇▇▇▇▇
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▇▇▇▇▇ pursuant to this Agreement and designated as Preferred Units on Schedule
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A, and (ii) any Preferred Units issued with respect to the Preferred Units
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referred to in clause (i) by way of dividend or Unit split or in connection with
a combination of Units, recapitalization, merger or other reorganization. A
Preferred Unit will continue to be an Preferred Unit in the hands of any Person
to which such Unit is transferred.
"Preferred Yield" means at any time an amount calculated on a daily basis
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(without daily compounding) at the rate of 12.5% per annum, compounded annually,
on the Unreturned Preferred Capital.
"Profits" for any period means all items of Company income and gain for
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such period determined in accordance with Section 4.2.
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"Required Interests" means each of (i) the Members holding at least a
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majority of the Investor Units and (ii) the Members holding at least a majority
of the Management Units.
"Restricted Securities" means (i) the securities issued hereunder, and (ii)
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any securities issued with respect to the securities referred to in clause (i)
above in connection with a conversion, combination of shares, recapitalization,
merger, consolidation or other reorganization.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
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"Taxable Year" means the Company's taxable year ending December 31 (or part
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thereof, in the case of the Company's last taxable year), or such other year as
is (i) required by Section 706 of the Code or (ii) determined by the Managing
Manager.
"Transfer" means any sale, transfer, assignment, pledge, mortgage,
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exchange, hypothecation, grant of a security interest or other direct or
indirect disposition or encumbrance of an interest (including, without
limitation, by operation of law) or the acts thereof. The terms "Transferee,"
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"Transferred," and other forms of the word "Transfer" shall have correlative
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meanings.
4
"Treasury Regulations" means the income tax regulations promulgated under
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the Code and effective as of the date hereof. Such term shall be deemed to
include any future amendments to such regulations and any corresponding
provisions of succeeding regulations to the extent the Managing Member
determines that any such amendments and succeeding regulations do not adversely
affect the relative economic interests of the Members hereunder.
"UCTV" means UC Television Network Corp., a Delaware corporation.
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"Unitholder" means any holder of a Unit.
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"Unpaid Preferred Yield" means at any time an amount equal to the excess,
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if any, of (a) the aggregate Preferred Yield accrued through such date, over (b)
all prior distributions made by the Company to the holders of Investor Units
pursuant to Section 5.2(a).
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"Unreturned Preferred Capital" means at any time the aggregate Capital
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Contributions with respect to the Investor Units reduced by all prior
distributions made to the holders of Investor Units by the Company pursuant to
Section 5.2(b).
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"Warrants" means those certain Class C Warrants to purchase common stock of
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UCTV of even date herewith issued to the Company by UCTV.
1.2 Other Definitions. Each of the following defined terms has the
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meaning given such term in the Section set forth opposite such defined term:
Defined Term Section
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"Agreement" Preamble
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"Capital Account" 4.1
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"Certificate" 2.1
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"Certificated Units" 11.8
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"Indemnifying Member" 13.11
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"Initial Capital Account" 3.1
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"LaSalle Note" 2.4
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"Management Notes" 5.4
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"Managing Member" 6.1
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"Note" 2.4
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"Proceeding" 8.2
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"Remaining Assets" 12.2(d)
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"Tax Matters Member" 9.2
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"Unit" 3.4
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1.3 Construction. Whenever the context requires, the gender of all words
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used in this Agreement includes the masculine, feminine and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement, and all references to Schedules are to schedules attached hereto,
each of which is made a part hereof for all purposes.
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ARTICLE II
ORGANIZATION
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2.1 Formation. The Company has been organized as a Delaware limited
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liability company by the filing of a Certificate of Formation (the
"Certificate") under and pursuant to the Act. The rights and liabilities of the
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Members shall be determined pursuant to the Act and this Agreement. To the
extent that the rights or obligations of any Member are different by reason of
any provision of this Agreement than they would be in the absence of such
provision, this Agreement, to the extent permitted by the Act, shall control.
2.2 Name. The name of the Company is "U-C Holdings, L.L.C." and all
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Company business shall be conducted in that name or such other names that comply
with applicable law as the Managing Member may select from time to time.
2.3 Registered Office; Registered Agent; Principal Office; Other Offices.
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The registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the Company) as the Managing Member may designate from time to time in the
manner provided by law. The principal office of the Company shall be at such
place as the Managing Member may designate, from time to time, which need not be
in the State of Delaware, and the Company shall maintain records there.
2.4 Purposes. The nature of the business or purposes to be conducted or
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promoted by the Company is to engage in any lawful act or activity for which
limited liability companies may be organized under the Act. The Company may
engage in any and all activities necessary, desirable or incidental to the
accomplishment of the foregoing. Notwithstanding anything herein to the
contrary, nothing set forth herein shall be construed as authorizing the Company
to possess any purpose or power, or to do any act or thing, forbidden by law to
a limited liability company organized under the laws of the State of Delaware.
The Company shall not (i) create, incur, assume or suffer to exist any
indebtedness for borrowed money or issue evidences of indebtedness or guaranty
indebtedness, or secure the same by a mortgage, pledge or other lien on the
assets of the Company, except for the issuance of the promissory note of the
Company pursuant to that certain Purchase Agreement, dated as of April 25, 1997,
by and between the Company and UCTV (the "Note") and except for the loan in
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favor of the Company to be made by LaSalle National Bank as of May 12, 1997 (the
"LaSalle Note"), or (ii) enter into or engage in any transaction which is
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reasonably likely to cause ▇▇▇▇▇▇ ▇▇▇▇▇ or any of its limited partners which are
exempt from income taxation under Code, Section 501(a) and, if applicable, any
pension plan that any such trust may be a part of, to recognize unrelated
business taxable income as defined in Code, Sections 512 and 514. Without
limiting the generality of the preceding sentence, the Company shall not: (i)
engage in any trade or business other than the passive investment in securities
of a corporation (a "Passive Investment"), (ii) create, incur, assume or suffer
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to exist any indebtedness for borrowed money or issue evidences of indebtedness
or guarantee indebtedness in
6
connection with a Passive Investment, or secure the Passive Investment by a
mortgage, pledge or other lien on the assets of the Company, for any length of
time (other than the Note and the LaSalle Note), (iii) sell or otherwise dispose
of the securities of UCTV for a twelve month period following the date on which
the LaSalle Note has been paid in full with cash (other than cash obtained in a
manner inconsistent with clause (ii) above), or (iv) receive any income
(including dividends, interest or otherwise) with respect to the securities of
UCTV during a taxable year of the Company in which any amounts with respect to
the LaSalle Note shall have been outstanding during such taxable year.
2.5 Term. The term of the Company commenced on the date the Certificate
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was filed with the office of the Secretary of State of Delaware and shall
continue in existence until December 31, 2007 or termination and dissolution of
the Company as determined under Section 12.1 of this Agreement.
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2.6 No State-Law Partnership. The Members intend that the Company shall
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not be a partnership (including, without limitation, a limited partnership) or
joint venture, and that no Member or the Company shall be a partner or joint
venturer of any other Member or the Company, for any purposes other than
federal and, if applicable, state tax purposes, and this Agreement shall not be
construed to the contrary. The Members intend that the Company shall be treated
as a partnership for federal and, if applicable, state income tax purposes, and
each Member and the Company shall file all tax returns and shall otherwise take
all tax and financial reporting positions in a manner consistent with such
treatment.
ARTICLE III
MEMBERSHIP; MEMBER UNITS
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3.1 Members. The name and address of each Member, the number of Units of
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each class owned by such Member at any time, the percentage of each class of
Units owned by such Member, and the initial Capital Contribution and initial
Capital Account (the "Initial Capital Account") of such Member with respect to
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such Units (as determined in accordance with Section 4.1) shall be set forth
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next to each Member's name on Schedule A hereto, as amended from time to time in
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accordance with this Agreement. Each Person listed on Schedule A, upon (i) his
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or its execution of this Agreement or counterpart thereof and (ii) receipt (or
deemed receipt) of such Person's initial Capital Contribution as set forth on
Schedule A, is hereby admitted to the Company as a Member of the Company. No
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Member shall be required to make any additional Capital Contribution except as
required by applicable law or by Section 3.5.
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3.2 Liability of Members. Except as otherwise required by applicable law
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and as expressly set forth in this Agreement, no Member shall have any personal
liability whatsoever in his capacity as a Member, whether to the Company, to any
of the other Members, to the creditors of the Company or to any other third
party, for the debts, liabilities, commitments or any other obligations of the
Company or for any losses of the Company, and therefore, a Member shall be
liable only to make the payments provided herein. In accordance with the Act and
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the laws of the State of Delaware, a member of a limited liability company may,
under certain circumstances, be required to return amounts previously
distributed to such member. It is the intent of the Members that no distribution
to any Member pursuant to Article V hereof shall be deemed a return of money or
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other property paid or distributed in violation of the Act.
3.3 No Authority to Bind Company. No Member (in such Member's capacity
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as a Member) shall have the authority or power to represent or act for or on
behalf of the Company, to do any act that would be binding on the Company or to
make any expenditures or incur any obligations on behalf of the Company other
than the Managing Member. Each Member hereby consents to the exercise by the
Managing Member of the powers conferred on such Managing Member by law and this
Agreement.
3.4 Member Units. Each Member's interest in the Company, including such
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Member's interest, if any, in the capital, income, gains, losses, deductions and
expenses of the Company and the right to vote, if any, on certain Company
matters as provided in this Agreement, shall be represented by "Units" (each,
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individually, a "Unit," and any number of Units, including fractions thereof,
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"Units"). Initially, the Units shall be comprised of "Investor Units,"
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"Preferred Units," "Class A Management Units" and "Class B Management Units."
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The ownership by a Member of "Investor Units," "Preferred Units," "Class A
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Management Units" and "Class B Management Units" shall entitle such Member to
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allocations of Profits and Losses and other items and distributions of cash and
other property with respect to such Units as set forth in Article V hereof.
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Ownership of a Unit by a Member shall entitle such Member to one vote on any
matter voted on by all Members as provided in this Agreement and/or as required
by applicable law. The Managing Member may cause the Company to issue to a
Member certificates representing the Units held by such Member.
3.5 Issuance of Additional Units and Interests; Admission of New
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Members; Additional Capital Contributions.
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(a) Subject to obtaining the consent of the Required Interests and as
otherwise provided in this Agreement, the Managing Member shall have the right
to cause the Company to issue (i) additional Units or other interests in the
Company (including other classes or series thereof having different rights),
(ii) obligations, evidences of indebtedness or other securities or interests
convertible or exchangeable into Units or other interests in the Company and
(iii) warrants, options or other rights to purchase or otherwise acquire Units
or other interests in the Company; provided, however, that at any time following
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the date hereof, the Company shall not issue Units to any Person unless such
Person shall have executed a joinder agreement in form satisfactory to the
Managing Member pursuant to which such Person agrees to be bound by the
provisions of this Agreement; and provided further that no consent of the
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Required Interests shall be required in connection with the issuance of the
Note, the LaSalle Note or the issuance of the additional Units as of the date of
the first amendment and restatement of this Agreement. The Managing Member
shall determine the terms and conditions governing the issuance of such
additional interests, including the number and designation of such additional
interests, the preference (with respect to distributions, in liquidation or
otherwise) over any other Units and any required contributions in connection
therewith. A Person to which the Company issues Units or other interests in the
Company shall be admitted as a Member of the Company only
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with the prior written consent of the Managing Member and if such Person has
executed and delivered a counterpart of this Agreement. Notwithstanding the
foregoing, the Managing Member shall have the right, without obtaining the
consent of the Required Interests or any Member, to cause the Company to issue
additional Investor Units in connection with the repurchase by the Company of
any Units held by any Member pursuant to an agreement with such Member. At least
10 days prior to the issuance and sale of any additional Investor Units in
connection with any such repurchase, the Company shall give written notice of
such issuance to the Investors (other than any Investor whose Units are being
repurchased) and, to the extent permitted under applicable securities laws
without material expenditure by the Company, each such Investor shall be
entitled to purchase in connection with such issuance a number of additional
Investor Units equal to such Investor's pro rata share (based upon the number of
Investor Units held by such Investor and the number of Investor Units held by
all Investors other than any Investor whose Units are being repurchased) of such
additional Investor Units. Any Investor Units which remain unpurchased after
such offer to such Investors, shall be reoffered to such Investors on a pro rata
basis until all of such Investor Units shall have been purchased. Each such
Investor may elect to purchase additional Investor Units by delivering written
notice of such election to the Company together with the purchase price therefor
(in the form specified in the Company's notice) within 10 days after receipt of
the Company notice. Each purchasing Investor shall be entitled to purchase such
additional Investor Units at the same price and on the same terms as such
Investor Units are offered by the Company to the other Investors.
(b) Notwithstanding anything herein to the contrary, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
("▇▇▇▇▇▇") shall have the right, without obtaining the consent of the Required
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Interests or any Member, to cause the Company to issue Class B Management Units
to employees of any Subsidiary of the Company (including, without limitation,
employees of UCTV) in an amount not to exceed 500 Class B Management Units;
provided, however, that prior to any such issuance, ▇▇▇▇▇▇ shall require such
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employees to enter into agreements providing for the repurchase of such Units
upon termination of employment and shall obtain the consent of the Managing
Member solely with respect to adequacy of any repurchase rights in favor of the
Company regarding such Class B Management Units; and provided further that the
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Company shall not issue Class B Management Units to any Person unless such
Person shall have executed a joinder agreement in form satisfactory to the
Managing Member pursuant to which such Person agrees to be bound by the
provisions of this Agreement. In the event ▇▇▇▇▇▇ ceases to be an employee of
any Subsidiary of the Company (including, without limitation, UCTV) or ceases to
be a Member, the Managing Member shall have the right to issue any additional
Class B Management Units.
(c) Notwithstanding anything to the contrary in Section 3.5(a) above, each
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Investor shall be required to make additional Capital Contributions to the
Company from time to time with respect to the Investor Units held by such
Investor when and as called by the Managing Member upon ten days prior written
notice solely to fund the exercise by the Company of the Warrants or the
exercise by the Company of the purchase rights granted pursuant to the Equity
Protection Agreements. The amount of any such additional Capital Contribution
by such Investor shall be limited to such Investor's pro rata share (based upon
the number of outstanding Investor Units held by such Investor and the number of
outstanding Investor Units held by all Investors) of the aggregate Capital
Contribution being made by all Investors pursuant to such capital call by the
Managing Member. No additional Investor Units will be issued in connection with
any such additional Capital Contribution.
9
3.6 Representations, Warranties and Agreements of the Members. Each
--------------------------------------------------------
Member hereby represents and warrants (severally as to itself only) that:
(a) The Units have been purchased by such Member and not by any other
Person, with the Member's own funds and not with the funds of any other Person,
and for the account of such Member, not as a nominee or agent and not for the
account of any other Person. Such Member has purchased the Units for investment
for an indefinite period, not with a view to the sale or distribution of any
part of all thereof by public or private sale or other disposition.
(b) Such Member has been advised that the Units have not been registered
under the Securities Act or registered or qualified under any other securities
law, on the ground, among others, that no distribution or public offering of the
Units is to be effected and the Units will be issued by the Company in
connection with a transaction that does not involve any public offering within
the meaning of Section 4(2) of the Securities Act, or the rules and regulations
of the Securities and Exchange Commission and under comparable exemptive
provisions of the securities laws, rules and regulations of other jurisdictions.
Such Member understands that the Company is relying in part on the Member's
representations as set forth herein for purposes of claiming such exemptions and
that the basis for such exemptions may not be present if, notwithstanding such
Member's representations, such Member has in mind merely acquiring Units for
resale on the occurrence or non-occurrence of some predetermined event. Such
Member has no such intention.
(c) Such Member has such knowledge and experience in financial and business
matters that such Member is capable of evaluating the merits and risks of an
investment in Units and has the capacity to protect such Member's own interests
in connection with such Member's proposed investment in Units.
(d) Such Member acknowledges that such Member has been furnished with such
financial and other information concerning the Company as such Member considers
necessary in connection with such Member's investment in Units. Such Member has
carefully reviewed such information and is thoroughly familiar with the proposed
business, operations, properties and financial condition of the Company and has
discussed with representatives of the Company any questions the Purchase may
have had with respect thereto. Such Member understands: (i) the risks involved
in this offering, including the speculative nature of the investment; (ii) the
financial hazards involved in this offering, including the risk of losing such
Member's entire investment; (iii) the lack of liquidity and restrictions on
transfers of Units; and (iv) the tax consequences of this investment. Such
Member has consulted with such Member's own legal, accounting, tax, investment
and other advisers with respect to the tax treatment of an investment by such
Member in Units and the merits and risks of an investment in Units. Such Member
is an "accredited investor" as defined under the Securities Act or has provided
written notice to the Company that such Member is not an "accredited investor"
prior to purchasing any Units or other interest in the Company.
(e) The execution, delivery and performance by such Member of this
Agreement have been duly authorized by such Member. This Agreement constitutes
a valid and binding obligation
10
of such Member, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(f) Such Member understands that the Units will be "restricted securities"
as that term is defined in Rule 144 under the Securities Act and, accordingly,
that the Units must be held indefinitely unless they are subsequently registered
under the Securities Act and qualified under any other applicable securities law
or exemptions from such registration and qualification are available. Such
Member understands that the Company is under no obligation to register or
qualify Units under the Securities Act, or any other securities law.
(g) Such Member is a resident of the jurisdiction set forth in such
Member's address on Schedule A.
----------
3.7 Initial Capital Contributions. Each Member shall make an initial
-----------------------------
Capital Contribution to the Company in cash or assets in the amount set forth
opposite such Member's name on Schedule A hereto. Upon receipt of the initial
----------
Capital Contribution set forth opposite such Member's name on Schedule A, each
----------
Member shall be deemed to own the number of Investor Units and Management Units
set forth opposite such Member's name on Schedule A.
----------
3.8 Defaulting Members. If any Member (a "Defaulting Member") fails to
------------------ -----------------
make full payment of any portion of any additional Capital Contribution called
by the Managing Member pursuant to Section 3.5(c), the Managing Member may
--------------
undertake any one or more of the following steps:
(a) The Managing Member may pursue and enforce all rights and remedies the
Company may have against such Defaulting Member, including a lawsuit to
collect the overdue amount, with interest calculated thereon at a rate equal
to 12%.
(b) Notwithstanding anything herein to the contrary, from and after any
date on which a Defaulting Member's fails to make any additional Capital
Contribution pursuant to Section 3.5(c), if such Defaulting Member continues
--------------
to hold Units, (i) such Defaulting Member shall have no right to receive any
distributions from the Company until such time as the amount of distributions
that would have been made to the Defaulting Member shall have been reduced by
an amount equal to the sum of (A) an amount equal to 18% per annum,
compounded annually, of the unpaid additional Capital Contribution and (B) an
amount equal to the unpaid Capital Contribution, and such reduced amount
shall have been distributed to the Investors other than the Defaulting Member
pursuant to Section 5.2(b), (ii) such Defaulting Member's Capital Account
--------------
shall not be credited with such Defaulting Member's share of items of income
and gain allocated to such Defaulting Member pursuant to Article V, and (iii)
---------
such Defaulting Member's Capital Account shall continue to be debited for
such Defaulting Member's share of items of loss, deduction and expense
allocated to such Defaulting Member pursuant to Article V.
---------
11
3.9 Outstanding Units. Any Units issued pursuant to this Agreement which
-----------------
are subsequently held by the Company as a result of any repurchase of such Units
by the Company or otherwise, shall not be considered outstanding Units for any
purpose hereunder.
ARTICLE IV
CAPITAL ACCOUNTS
----------------
4.1 Establishment and Determination of Capital Accounts. A capital
---------------------------------------------------
account ("Capital Account") shall be established for each Member in accordance
---------------
with the Treasury Regulations under Section 704(b) of the Code. In accordance
with such Treasury Regulations, the Capital Account of each Member shall consist
of such Member's initial Capital Contribution and shall be (i) increased by any
additional Capital Contributions made by such Member pursuant to the terms of
this Agreement and such Member's share of items of income and gain allocated to
such Member pursuant to Article V and (ii) decreased by such Member's share of
---------
items of loss, deduction and expense allocated to such Member pursuant to
Article V and any distributions to such Member of cash or the fair market value
---------
of any other property (net of liabilities assumed by such Member and liabilities
to which such property is subject) distributed to such Member. Any references in
this Agreement to the Capital Account of a Member shall be deemed to refer to
such Capital Account as the same may be increased or decreased from time to time
as set forth above. The Capital Account maintenance rules set forth in this
Section 4.1 are intended to be consistent with the capital account maintenance
-----------
rules of Treasury Regulation Section 1.704-1(b)(2)(iv).
4.2 Computation of Amounts. For purposes of computing the amount of any
----------------------
item of income, gain, loss, deduction or expense to be reflected in Capital
Accounts, the determination, recognition and classification of each such item
shall be the same as its determination, recognition and classification for
federal income tax purposes; provided that (a) any income that is exempt from
-------------
federal income tax shall be added to such taxable income or losses; (b) any
expenditures of the Company described in Section 705(a)(2)(B) of the Code or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury
Regulation Section 1.704-1(b)(2)(iv)(i), shall be subtracted from such taxable
income or losses; (c) if the Book Value of any Company property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection with
a distribution of such property) or (f) (in connection with a revaluation of
Capital Accounts), the amount of such adjustment shall be taken into account as
gain or loss from the disposition of such property; (d) if property that is
reflected on the books of the Company has a Book Value that differs from the
adjusted tax basis of such property, depreciation, amortization and gain or loss
with respect to such property shall be determined by reference to such Book
Value; and (e) the computation of all items of income, gain, loss, deduction and
expense shall be made without regard to any election pursuant to Section 754 of
the Code that may be made by the Company, unless the adjustment to basis of
Company property pursuant to such election is reflected in Capital Accounts
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m).
4.3 Interest; Withdrawal. No Member shall be paid interest
--------------------
12
on any Capital Contributions to the Company or on the balance of such Member's
Capital Account. No Member shall have any right (a) to demand the return of such
Member's Capital Contributions or any other distribution from the Company
(whether upon resignation, withdrawal or otherwise), except upon dissolution of
the Company pursuant to Article XII hereof, or (b) to cause a partition of the
-----------
Company's assets.
ARTICLE V
DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES
------------------------------------------------
5.1 Generally. Subject to the provisions of Section 18-607 of the Act, the
---------
Managing Member shall have sole discretion regarding the amounts and timing
of distributions to Members, in each case subject to the retention and
establishment of reasonable reserves of, or payment to third parties of, such
funds as the Managing Member deems necessary with respect to the reasonable
business needs of the Company which shall include the payment or the making
of provision for the payment when due of the Company's obligations, including
the payment of any management or administrative fees and expenses or any
other obligations.
5.2 Distributions. Except as provided in Section 5.4, distributions to be
------------- -----------
made at any time shall be made in the following order and priority:
(a) First, to the holders of Investor Units pro rata according to their
-----
ownership of outstanding Investor Units until the aggregate distributions with
respect to the Investor Units made pursuant to this Section 5.2(a) reduces the
--------------
aggregate Unpaid Preferred Yield to zero; and
(b) Second, to the holders of Investor Units pro rata according to their
------
ownership of outstanding Investor Units until the aggregate distributions with
respect to the Investor Units made pursuant to this Section 5.2(b) reduces the
--------------
aggregate Unreturned Preferred Capital to zero; and
(c) Third, to the holders of the Management Units pro rata according to
-----
their ownership of the outstanding Class A Management Units until the aggregate
distributions with respect to the Class A Management Units made pursuant to this
Section 5.2(c) equals the Applicable Class A Percentage of all distributions
--------------
made pursuant to Section 5.2(a) and this Section 5.2(c); and
-------------- --------------
(d) Fourth, until such time as the IRR Target has been achieved, the
------
Applicable Class A Percentage to the holders of Class A Management Units pro
rata according to their ownership of outstanding Class A Management Units and
the remainder to the holders of Investor Units pro rata according to their
ownership of outstanding Investor Units; and
(e) Fifth, after such time as the IRR Target has been achieved, the
-----
Applicable Class A Catch-up Percentage to the holders of Class A Management
Units pro rata according to their ownership of outstanding Class A Management
Units and the Applicable Class B Catch-up Percentage to the holders of Class B
Management Units pro rata according to their ownership of outstanding Class B
Management Units until the aggregate distributions with respect to the
Management Units made
13
pursuant to Sections 5.2(c), (d) and this Section 5.2(e) is equal to the
--------------- --- --------------
Aggregate Management Percentage of the aggregate distributions made pursuant to
Sections 5.2(a), (c), (d) and this Section 5.2(e) with respect to the Investor
--------------- --- --- --------------
Units and Management Units; and
(f) Sixth, the Applicable Class A Percentage to the holders of Class A
-----
Management Units pro rata according to their ownership of outstanding Class A
Management Units, the Applicable Class B Percentage to the holders of the Class
B Management Units pro rata according to their ownership of outstanding Class B
Management Units and the remainder to the holders of Investor Units pro rata
according to their ownership of outstanding Investor Units.
(g) Notwithstanding Sections 5.2(d), (e) and (f), if subsequent to the
----------------------------
making of any distribution pursuant to Section 5.2(e) or (f), a Cash Outflow
---------------------
occurs (a "Post-Distribution Cash Outflow"), then in such case the amount that
------------------------------
would otherwise be distributed to Management Holders pursuant to Sections
--------
5.2(d), (e) and (f) shall be reduced (and such amount shall be distributed to
-------------------
holders of Investor Units, pro rata according to their ownership of Investor
Units) by an amount equal to the excess of (i) the aggregate amount of all
distributions previously made to the Management Holders pursuant to Section
-------
5.2(e) and (f) over (ii) the aggregate amount of the distributions that would
--------------
have been made to the Management Holders pursuant to Section 5.2(e) and (f) if
----------------------
all Post-Distribution Cash Outflows had been taken into account for purposes of
determining whether the IRR Target was met on the date of such distributions.
5.3 Allocation of Profits and Losses. For each Fiscal Year of the Company,
--------------------------------
all Profits and Losses shall be allocated to the Members' Capital Accounts in a
manner such that, as of the end of such Fiscal Year, the Capital Account of each
Member (which may be either a positive or negative balance) shall be equal to
(a) the amount which would be distributed to such Member, determined as if the
Company were to liquidate all of its assets for the Book Value thereof and
distribute the proceeds thereof pursuant to Section 12.2 hereof, minus (b) the
------------ -----
sum of (i) such Member's share of partnership minimum gain (as determined
according to Treasury Regulation Sections 1.704-2(d) and (g)(3)) and partner
minimum gain (as determined according to Treasury Regulation Section 1.704-2(i))
and (ii) the amount, if any, which such Member is obligated to contribute to the
capital of the Company as of the last day of such Fiscal Year.
5.4 Initial Capital Contributions. Notwithstanding anything to the
-----------------------------
contrary contained in Section 5.2, the Members acknowledge that (i) ▇▇▇▇▇▇ ▇▇▇▇▇
made an initial Capital Contribution to the Company in the amount of $29,090.91,
and that in the event this amount is returned to the Company pursuant to the
Escrow Agreement, such amount or other amounts payable to the Company by UCTV
shall be distributed solely to ▇▇▇▇▇▇ ▇▇▇▇▇ as a return of capital and (ii) the
Management Holders paid a portion of their initial Capital Contributions by the
delivery of promissory notes to the Company (the "Management Notes") and that
----------------
all principal and accrued interest with respect to the Management Notes which is
paid by such Management Holders shall be distributed solely to the holders of
Preferred Units as a return of capital. Each of the Management Holders
acknowledges and agrees that until such time as all principal and accrued
interest with respect to the Management Note of such Management Holder is paid
in full, such Management Holder shall have no right to receive any distributions
from the Company and all distributions which would have been paid by the Company
to such Management Holder shall be
14
retained by the Company as payment with respect to the Management Note of such
Management Holder and distributed in accordance with the immediately preceding
sentence until such Management Note is paid in full. Any distributions to the
holders of Preferred Units upon any payment with respect to a Management Note
shall be deemed a return of capital to the holders of Preferred Units.
Notwithstanding anything to the contrary contained in Section 5.2, the Members
acknowledge that (i) a portion of the Capital Contribution of ▇▇▇▇▇▇ ▇▇▇▇▇ in an
amount not to exceed $14,770,000 shall be distributed solely in repayment of the
LaSalle Note and (ii) a portion of the Capital Contributions of the other
Members may be distributed in the discretion of the Managing Member in repayment
of the LaSalle Note and any fees and expenses of the Company in connection
therewith, in each case until such time as the LaSalle Note and such fees and
expenses have been paid in full.
5.5 Tax Allocations; Code Section 704(c).
------------------------------------
(a) The income, gains, losses, deductions and expenses of the Company shall
be allocated, for federal, state and local income tax purposes, among the
Members in accordance with the allocation of such income, gains, losses,
deductions and expenses among the Members for computing their Capital Accounts,
except that if any such allocation is not permitted by the Code or other
-----------
applicable law, the Company's subsequent income, gains, losses, deductions and
expenses shall be allocated among the Members so as to reflect as nearly as
possible the allocation set forth herein in computing their Capital Accounts.
(b) In accordance with Code Section 704(c) and the Treasury Regulations
thereunder, income, gain, loss, deduction and expense with respect to any
property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income
tax purposes and its fair market value at the time of contribution.
(c) If the Book Value of any Company asset is adjusted pursuant to Section
-------
4.2, subsequent allocations of items of taxable income, gain, loss, deduction
---
and expense with respect to such asset shall take account of any variation
between the adjusted basis of such asset for federal income tax purposes and its
Book Value in the same manner as under Code Section 704(c).
(d) Any elections or other decisions relating to such allocations shall be
made by the Members in any manner that reasonably reflects the purpose and
intent of this Agreement. Allocations pursuant to this Section 5.5 are solely
-----------
for purposes of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Member's Capital Account or share of
profits, losses, other items or distributions pursuant to any provisions of this
Agreement.
ARTICLE VI
MANAGEMENT OF THE COMPANY
-------------------------
15
6.1 Managing Member. Except as otherwise required by the Act, the business
---------------
and affairs of the Company shall be managed by or under the direction of a
"manager"(as that term is defined in the Act) who shall be a Member (the
"Managing Member"). The initial Managing Member shall be ▇▇▇▇▇▇ ▇▇▇▇▇. Except as
---------------
otherwise expressly provided for in this Agreement, the Members hereby consent
to the exercise by the Managing Member of all such powers and rights conferred
on them by the Act with respect to the management and control of the Company.
The Managing Member shall have the power on behalf and in the name of the
Company to carry out any and all of the objectives and purposes of the Company
and to perform all acts and enter into and perform all contracts and other
undertakings which the Managing Member, in its sole discretion, deems necessary
or advisable or incidental thereto, including the power to dispose of or vote
any security held by the Company (including any securities of UCTV) or exercise
any right to acquire securities held by the Company (including the Warrants and
the Equity Protection Agreements). Notwithstanding the foregoing and except as
explicitly set forth in this Agreement, if a vote, consent or approval of the
Members is required by the Act or other applicable law with respect to any act
to be taken by the Company or matter considered by the Managing Member, the
Members agree that they shall be deemed to have consented to or approved such
act or voted on such matter in accordance with the determination of the Managing
Member on such act or matter. No Member, in his or its capacity as a Member,
shall have any power to act for, sign for or do any act that would bind the
Company. The Managing Member shall devote such time and effort to the affairs of
the Company as he or it may deem appropriate for the oversight of the management
and affairs of the Company.
6.2 Delegation by Managing Member. The Managing Member shall have the
-----------------------------
power and authority to delegate to one or more other Persons the Managing
Member's rights and powers to manage and control the business and affairs of the
Company, including to delegate to agents and employees of a Member or the
Company, and to delegate by a written agreement with, or otherwise to, other
Persons. The Managing Member may authorize any Person (including, without
limitation, any Member) to enter into and perform under any document on behalf
of the Company.
6.3 Resignation; Vacancy; Removal. The Managing Member may resign by
-----------------------------
delivering his or its written resignation to the Company. Such resignation shall
be effective fourteen (14) business days following receipt of such resignation
by the Company unless some later time is specified in such resignation. If a
vacancy in the position of Managing Member should for any reason occur, a
replacement Managing Member shall be appointed by ▇▇▇▇▇▇ ▇▇▇▇▇. Any subsequent
Managing Member may be removed only by ▇▇▇▇▇▇ ▇▇▇▇▇. The initial Managing Member
may not be removed for any reason. Any subsequent Managing Member may be removed
only by ▇▇▇▇▇▇ ▇▇▇▇▇.
6.4 Compensation. The Managing Member shall not be entitled to
------------
compensation from the Company in connection with its activities as Managing
Member; provided that the foregoing shall not prevent the Managing Member from
receiving reimbursement for out-of-pocket expenses incurred by the Managing
Member on behalf of the Company, receiving distributions as a Member pursuant to
this Agreement or otherwise receiving compensation from the Company for actions
unrelated to its activities as Managing Member.
16
6.5 Board Membership of Subsidiaries.
--------------------------------
(a) The Managing Member and each other Member shall cause the Company to
vote all voting securities of UCTV over which the Company has voting control
and shall take all other necessary or desirable actions within its control
(including in its capacity as a member of the Board, as defined below) so
that the following individuals shall be elected to the board of directors of
UCTV (the "Board") and shall remain directors of the Board until removed in
-----
accordance with Sections 6.5(b) and 6.5(c):
--------------------------
(i) two representatives designated by the holders of a majority of
the Investor Units (the "Investor Directors"), which Investor Directors
------------------
shall initially be ▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
(ii) ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ (the
"Management Directors"), so long as each such Management Director is
--------------------
employed by UCTV; and
(iii) up to six additional representatives designated by the holders of
a majority of the Investor Units, who shall initially include ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (the "Other Directors").
---------------
(b) The removal from the Board (with or without cause) of any Investor
Director or any Other Director shall only be upon written request of the
Managing Member and under no other circumstances.
(c) Each Management Director shall be removed from the Board automatically
if such Management Director ceases to be employed by UCTV for any reason.
(d) In the event that any representative designated hereunder ceases to
serve as a member of the Board during his term of office for any reason, the
resulting vacancy on the Board shall be filled by a representative designated
by the same group or Person that designated such prior representative.
ARTICLE VII
MEMBERS
-------
7.1 Membership Status; Resignation. A Transfer by a Member of all of such
------------------------------
Member's Units shall be deemed to be a resignation by such Member effective upon
consummation of such Transfer and such Member shall not be entitled to any
distributions or payments of any kind from the Company. Transfers may only be
made pursuant to Article XI hereof. To the fullest extent permitted by law, a
----------
Member may not resign or withdraw as a Member of the Company without the consent
of the Managing Member, which consent may be withheld in its sole discretion.
17
7.2 No Participation in Management. The management of the business and
------------------------------
affairs of the Company shall be vested in whole in the Managing Member in
accordance with Article VI of this Agreement. Except with respect to the
----------
execution and filing of the Certificate, as otherwise specifically provided by
this Agreement or required by the Act, no Member, acting solely in the capacity
of Member, shall participate in the management of or be an agent of the Company
or have any authority to act for or bind the Company.
7.3 Voting Rights Generally; Voting of Units. Except as expressly
----------------------------------------
provided in this Agreement or as may be required by the Act, Members shall have
no voting, approval or consent rights. Each Member shall be entitled to one (1)
vote for each Unit held by such Member upon any matter upon which Members are
entitled to vote submitted to a vote at a meeting of the Members called by the
Managing Member. Any action required to, or which may be, taken by Members may
be taken without a meeting if consented thereto in a writing setting forth the
action so taken and signed by all the Members entitled to vote with respect to
the subject matter thereof.
7.4 Conflicts of Interest. The Company may transact business with any
---------------------
Member, its Affiliates and each of their respective stockholders, directors,
officers, controlling persons, members, partners and employees; provided, the
terms of those transactions are no less favorable than those the Company could
obtain from unrelated third parties or are approved by a majority of the Members
who have no direct or indirect interest in that transaction.
7.5 Outside Activities. Each Member of the Company, in its capacity as
------------------
such, its Affiliates and each of their respective stockholders, directors,
officers, controlling persons, members, partners and employees may at any time
and from time to time may engage in and own interests in other business ventures
of any and every type and description, independently or with others (including
ones in competition with the Company) with no obligation to offer to the Company
or any other Member or officer the right to participate therein. Neither the
Company nor any Member of the Company shall have any rights by virtue of this
Agreement or the limited liability company relationship created hereby in any
such business interests or activities of any such Person.
7.6 Confidentiality. Each Member agrees to maintain the confidentiality
---------------
of all proprietary, nonpublic information, documents and materials relating to
the business of the Company or any of its Subsidiaries which the Member now or
in the future may possess, except to the extent disclosure of any such
information is required by law or authorized by the Company or reasonably occurs
in connection with disputes over the terms of this Agreement.
18
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
-------------------------------
8.1 Exculpation. No Member (including the Managing Member) shall have
-----------
any duty to the Company or to any Member of the Company except as expressly set
forth herein. No Member (including the Managing Member) shall be liable to any
other Member or the Company for any loss or damage suffered by the Company or
any Member unless such loss or damage is caused by such Member's gross
negligence, willful misconduct, intentional violation of law or material breach
of this Agreement. No Member (including the Managing Member) shall be liable for
errors in judgment or for any acts or omissions that do not constitute gross
negligence, willful misconduct, intentional violation of law or material breach
of this Agreement. Any Member (including the Managing Member) may consult with
counsel and accountants in respect of Company affairs, and provided such Member
acts in good faith reliance upon the advice or opinion of such counsel or
accountants, such Member shall not be liable for any loss or damage suffered by
the Company or any Member in reliance thereon. The preceding sentence shall in
no way limit any Person's right to rely on information to the extent provided in
Section 18-406 of the Act.
8.2 Right to Indemnification. Subject to the limitations and conditions
------------------------
as provided in this Article VIII, each Person who was or is made a party or is
------------
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative (hereinafter a "Proceeding"), or any appeal in such a Proceeding or
----------
any inquiry or investigation that could lead to such a Proceeding, by reason of
the fact that such Person, or a Person of whom such Person is the legal
representative, is or was a Member of the Company or while a Member of the
Company is or was serving at the request of the Company as a manager, director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic limited liability company,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise shall be indemnified by the Company to the
fullest extent permitted under applicable law, as the same exist or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to such amendment)
against judgments, penalties (including excise and similar taxes and punitive
damages), fines, settlements and reasonable expenses (including, without
limitation, attorneys' fees) actually incurred by such Person in connection with
such Proceeding; provided that (a) such Person's course of conduct was pursued
-------------
in good faith and believed by such Person to be in the best interests of the
Company and (b) such course of conduct did not constitute gross negligence or
willful misconduct on the part of such Person and otherwise was in accordance
with the terms of this Agreement. Indemnification under this Article VIII shall
------------
continue as to a Person who has ceased to serve in the capacity which initially
entitled such Person to indemnity hereunder. The rights granted pursuant to this
Article VIII shall be deemed contractual rights, and no amendment, modification
------------
or repeal of this Article VIII shall have the effect of limiting or denying any
------------
such rights with respect to actions taken or Proceedings arising prior to any
amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Article VIII could involve indemnification for
------------
negligence or under theories of strict liability.
19
8.3 Advance Payment. The right to indemnification conferred in this
---------------
Article VIII shall include the right to be paid or reimbursed by the Company the
------------
reasonable expenses incurred by a Person of the type entitled to be indemnified
under Section 8.2 who was, is or is threatened to be made a named defendant or
-----------
respondent in a Proceeding in advance of the final disposition of the Proceeding
and without any determination as to the Person's ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred
by any such Person in advance of the final disposition of a Proceeding shall be
made only upon delivery to the Company of a written affirmation by such Person
of his or her good faith belief that he has met the standard of conduct
necessary for indemnification under Article VIII and a written undertaking, by
------------
or on behalf of such Person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified Person is not entitled to be
indemnified under this Article VIII or otherwise.
------------
8.4 Indemnification of Employees and Agents. The Company shall indemnify
---------------------------------------
and advance expenses to any officer, director, partner, employee or agent of
the Managing Member or the Company to the same extent and subject to the same
conditions that it may indemnify and advance expenses to the Managing Member
under this Article VIII.
------------
8.5 Appearance as a Witness. Notwithstanding any other provision of this
-----------------------
Article VIII, the Company may pay or reimburse reasonable out-of-pocket expenses
------------
incurred by a Managing Member or such Managing Member's officers, directors,
employees, partners and agents in connection with such Person's appearance as a
witness or other participation in a Proceeding related to or arising out of the
business of the Company at a time when such Person is not a named defendant or
respondent in the Proceeding.
8.6 Nonexclusivity of Rights. The right to indemnification and the
------------------------
advancement and payment of expenses conferred in this Article VIII shall not be
------------
exclusive of any other right which a Person indemnified pursuant to Section 8.4
-----------
may have or hereafter acquire under any law (common or statutory), provision of
the Certificate or this Agreement, agreement, vote of Members or otherwise.
8.7 Savings Clause. If this Article VIII or any portion hereof shall be
-------------- ------------
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Person indemnified
pursuant to this Article VIII as to costs, charges and expenses (including
------------
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article VIII that shall not have been invalidated and to the fullest extent
------------
permitted by applicable law.
ARTICLE IX
TAXES
-----
20
9.1 Tax Returns. The Company shall cause to be prepared and filed all
-----------
necessary federal and state income tax returns for the Company, including making
any elections the Managing Member may deem appropriate and in the best interests
of the Members. Each Member shall furnish to the Managing Member all pertinent
information in its possession relating to Company operations that is necessary
to enable the Company's income tax returns to be prepared and filed.
9.2 Tax Matters Partner. The Managing Member shall be the "tax matters
-------------------
partner" of the Company pursuant to Section 6231(a)(7) of the Code (the "Tax
---
Matters Member"). The Tax Matters Member is authorized to represent the Company
--------------
before the Internal Revenue Service and any other governmental agency with
jurisdiction, and to sign such consents and to enter into settlements and other
agreements with such agencies as the Managing Member deems necessary or
advisable.
ARTICLE X
BOOKS, REPORTS
--------------
10.1 Maintenance of Books. The Company shall keep appropriate books and
--------------------
records of accounts and shall keep appropriate minutes of the proceedings of its
Members and any committees. The Fiscal Year of the Company shall be the calendar
year.
10.2 Member Tax Information. Within forty-five (45) days after the end of
----------------------
each Taxable Year, the Company will cause to be delivered to each Person who was
a Member at any time during such Taxable Year a Form K-1 and such other
information, if any, with respect to the Company as may be necessary for the
preparation of such Member's federal, state and local income tax returns.
21
ARTICLE XI
TRANSFERS
---------
11.1 Assignment by Members. No holder of Units shall Transfer any Units or
---------------------
other interests in the Company on or prior to the first anniversary of the date
on which the LaSalle Note is paid in full. No Management Holder shall transfer
any Management Units of the Company, or offer to Transfer all or any part of
such Management Holder's Management Units in the Company (whether voluntarily or
involuntarily) without the consent of the Managing Member, which consent may be
withheld in the Managing Member's sole discretion. Each transferee of Units or
other interest in the Company shall as a condition prior to such Transfer
execute a joinder agreement in a form satisfactory to the Managing Member
pursuant to which such transferee shall agree to be bound by the provisions of
this Agreement (it being understood that any such Transfer shall have the effect
of Transferring an economic interest in such Units and shall not have the effect
of Transferring any other rights of a Member unless such Transferee is admitted
as a substitute Member pursuant to section 11.3). Any Transfer by a Member of
------------
any part of Units to a Person who is not a Member shall not relieve such
Member of any of its obligations with respect to such Units.
11.2 Void Transfers. Any Transfer by any Member of any Units or other
--------------
interest in the Company (a) in contravention of this Agreement (including,
without limitation, the failure of the transferee to execute a counterpart in
accordance with Section 11.1), (b) prior to the first anniversary of the Escrow
------------
Release Date or (c) which would cause the Company to not be treated as a
partnership for U.S. federal income tax purposes, shall be void and ineffectual
and shall not bind or be recognized by the Company or any other party. No
purported assignee shall have any right to any profits, losses or distributions
of the Company.
11.3 Substituted Member
------------------
(a) An assignee of any Units or other interest in the Company held by a
Member, or any portion thereof, shall become a substituted Member entitled to
all the rights of a Member if and only if the assignor gives the assignee such
right, and prior written consent to such assignment and substitution has been
obtained from the Managing Member, which consent may be withheld in such
Managing Member's sole discretion.
(b) The Company and the Members shall be entitled to treat the record
owner of any Units or other interest in the Company as the absolute owner
thereof and shall incur no liability for distributions of cash or other property
made in good faith to such owner until such time as a written assignment of such
Units or other interest in the Company, which assignment is permitted pursuant
to the terms and conditions of Section 11.1 and Section 11.3 hereof, has been
------------ ------------
received and accepted by the Managing Member and recorded on the books of the
Company.
(c) Upon the admission of a substituted Member, Schedule A attached hereto
----------
shall be amended to reflect the name, address and Units of such substituted
Member and to eliminate the name and address of and other information relating
to the assigning Member with regard to the assigned Units.
22
11.4 Effect of Assignment.
--------------------
(a) Any Member who shall make a permitted assignment under this Agreement
of any Units or other interest in the Company shall cease to be a Member of the
Company with respect to such Units or other interest and shall no longer have
any rights or privileges of a Member with respect to such Units or other
interest, except that unless and until the assignee of such Member is admitted
as a substituted Member in accordance with the provisions of this Article XI,
----------
such assigning Member shall retain the statutory rights and obligations of an
assignor member under applicable law.
(b) Any Person who acquires in any manner whatsoever any Units or other
interest in the Company, irrespective of whether such Person has accepted and
adopted in writing the terms and provisions of this Agreement, shall be deemed
by the acceptance of the benefits of the acquisition thereof to have agreed to
be subject to and bound by of all the terms and conditions of this Agreement
that any predecessor in such Units or other interest in the Company of such
Person was subject to or by which such predecessor was bound.
(c) Following an assignment of any Units or other interest that is
permitted under this Agreement, the transferee of such Units or interest shall
be treated as having made all of the Capital Contributions in respect of, and
received all of the distributions received in respect of, such Units or
interest, shall succeed to the Capital Account associated with such Units or
interest and shall receive allocations and distributions under Articles V and
--------------
XII in respect of such Units or interest as if such transferee were a Member.
---
11.5 Permitted Transfers. Subject in all events to the general
-------------------
restrictions on Transfers contained in Sections 11.1, 11.2 and 11.3, the
----------------------------
restrictions contained in the first sentence of Section 11.1 shall not apply to
------------
any Transfer of Units by any Unitholder among such Unitholder's Permitted
Transferees so long as such Permitted Transferee shall agree in writing to be
bound by the provisions of this Agreement prior to any such Transfer.
11.6 Deliveries for Transfer
-----------------------
(a) In connection with the Transfer of any Restricted Securities, the
holder thereof will deliver written notice to the Company describing in
reasonable detail the Transfer or proposed Transfer. In addition, in the case
of any Certificated Units (as defined below), if the holder of such Restricted
Securities delivers to the Company an opinion of such counsel that no subsequent
Transfer of such Restricted Securities will require registration under the
Securities Act, the Company will promptly upon such contemplated Transfer
deliver new certificates or instruments, as the case may be, for such Restricted
Securities which do not bear the restrictive legend relating to the Securities
Act as set forth below. If the Company is not required to deliver new
certificates or instruments, as the case may be, for such Restricted Securities
not bearing such legend, the holder thereof will not Transfer the same until the
prospective transferee has confirmed to the Company in writing its agreement to
be bound by the conditions contained in this Section 11.6.
------------
(b) Notwithstanding any other provisions of this Article XI, no Transfer
----------
of Units or
23
any other interest in the Company may be made unless in the opinion of counsel
(who may be counsel for the Company), satisfactory in form and substance to the
Managing Member and counsel for the Company (which opinion may be waived, in
whole or in part, at the discretion of the Managing Member), such Transfer would
not violate any federal securities laws or any state or provincial securities or
"blue sky" laws (including any investor suitability standards) applicable to the
Company or the interest to be transferred, or cause the Company to be required
to register as an Investment Company under the Investment Company Act of 1940,
as amended. Such opinion of counsel shall be delivered in writing to the Company
prior to the date of the Transfer.
11.7 Prospective Transferees. Subject to the terms of this Agreement, the
-----------------------
Company agrees to cooperate, as may reasonably be requested, in order to provide
any information and access to any information to any prospective transferee in
connection with a proposed Transfer.
11.8 Legend. In the event that certificates representing the Units are
------
issued ("Certificated Units"), such certificates will bear a legend stating that
------------------
the Transfer of the Units is subject to the conditions specified in this
Agreement.
11.9 Effective Date. Any Transfer and any related admission of a Person as
--------------
a Member in compliance with this Article XI shall be deemed effective on such
----------
date that the transferee or successor in interest complies with the requirements
of this Agreement.
ARTICLE XII
DISSOLUTION, LIQUIDATION AND TERMINATION
----------------------------------------
12.1 Dissolution. The Company shall be dissolved and its affairs shall be
-----------
wound up on the first to occur of the following:
(a) the expiration of its term pursuant to Section 2.5;
-----------
(b) prior to April 25, 2002, the written consent of the Required Interests
to dissolve the Company;
(c) after April 25, 2002, the written determination of the Managing Member
(in its self-discretion) to dissolve the Company;
(d) upon the determination of the Managing Member in the event of a sale
of all or substantially all the Company's assets or in the event the Company no
longer owns any securities of UCTN; and
(e) the entry of a decree of judicial dissolution of the Company under
Section 18-802 of the Act.
24
The death, retirement, resignation, expulsion, incapacity, bankruptcy or
dissolution of a Member, or the occurrence of any other event that terminates
the continued membership of a Member in the Company, shall not cause a
dissolution of the Company, and the Company shall continue in existence subject
to the terms and conditions of this Agreement.
12.2 Liquidation and Termination. On dissolution of the Company, the
---------------------------
Managing Member shall act as liquidator or may appoint one or more Members as
liquidator. The liquidator(s) shall proceed diligently to wind up the affairs of
the Company and make final distributions as provided herein and in the Act. The
costs of liquidation shall be borne as a Company expense. Until final
distribution, the liquidator(s) shall continue to operate the Company properties
with all of the power and authority of the Managing Member and the Members. The
steps to be accomplished by the liquidators are as follows:
(a) as promptly as possible after dissolution and again after final
liquidation, the liquidator(s) shall cause a proper 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 dissolution occurs or the final liquidation is completed, as applicable;
(b) the liquidator(s) shall cause the notice described in the Act to be
mailed to each known creditor of and claimant against the Company in the manner
described thereunder;
(c) the liquidator(s) shall pay, satisfy or discharge from Company funds
all of the debts, liabilities and obligations of the Company (including, without
limitation, all expenses incurred in liquidation) or otherwise make adequate
provision for payment and discharge thereof (including, without limitation, the
establishment of a cash fund for contingent liabilities in such amount and for
such term as the liquidator(s) may reasonably determine); and
(d) the remaining assets of the Company (the "Remaining Assets") shall be
----------------
distributed to the Members in accordance with Sections 5.2 and 5.4 hereof. The
--------------------
Remaining Assets shall be distributed 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).
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 distributees pursuant
to this Section 12.2. The distribution of cash and/or property to a Member in
------------
accordance with the provisions of this Section 12.2 constitutes a complete
------------
return to the Member of its Capital Contributions and a complete distribution to
the Member of its interest in the Company and all the Company's property and
constitutes a compromise to which all Members have consented within the meaning
of the Act. To the extent that a Member returns funds to the Company, it has no
claim against any other Member for those funds. Any Company assets distributed
in kind will first be written up or down to their fair market value, thus
creating Profits or Losses (if any), which shall be allocated in accordance with
Sections 5.3 and 5.4.
------------ ---
25
12.3 Management Holder Give Back. After the final distribution of the
---------------------------
assets of the Company among the Members as provided in Section 12.2 and Article
------------ -------
V, the Management Holders shall contribute to the Company (pro rata according to
-
their ownership of Management Units) an amount equal to the sum of the
following:
(a) first, in the event that the Investors did not receive distributions
-----
in the aggregate pursuant to Sections 5.2(a) and (b) equal to their aggregate
-----------------------
Capital Contributions plus the aggregate Yield accrued through such date, the
Management Holders shall make a Capital Contribution (pro rata according to
their ownership of Management Units) to the Company equal to such deficit and
such amount will be distributed to the holders of Investor Units, pro rata
according to their ownership of Investor Units; and
(b) second, in the event that distributions to Management Holders were not
------
reduced by the entire excess amount described in Section 5.2(g), the Management
--------------
Holders shall make a Capital Contribution (pro rata according to their ownership
of Management Units) to the Company equal to the amount by which distributions
to Management Holders were not reduced by the entire excess amount described in
Section 5.2(g) and such amount will be distributed to the holders of Investor
--------------
Units, pro rata according to their ownership of Investor Units;
provided that such Management Holders Capital Contribution shall not exceed 100%
of the net amount distributed to the Management Holders during the life of the
Company pursuant to Section 5.2. Except as otherwise provided in this Section
----------- -------
12.3, and notwithstanding any custom or rule of law to the contrary, to the
----
extent that any Member has a deficit Capital Account balance, upon dissolution
of the Company such deficit shall not be an asset of the Company and such
Members shall not be obligated to contribute such amount to the Company to bring
the balance of such Member's capital account to zero.
12.4 Cancellation of Certificate. On completion of the distribution of
---------------------------
Company assets as provided herein, the Company is terminated, and the Managing
Member (or such other Person or Persons as the Act may require or permit) shall
file a certificate of cancellation with the Secretary of State of Delaware,
cancel any other filings made pursuant to Section 2.5 and take such other
-----------
actions as may be necessary to terminate the Company.
26
ARTICLE XIII
GENERAL PROVISIONS
------------------
13.1 Notices. Except as expressly set forth to the contrary in this
-------
Agreement, all notices, requests or consents provided for or permitted to be
given under this Agreement must be in writing and shall be deemed delivered: (a)
upon delivery if delivered in person; (b) three (3) business days after deposit
in the United States mail, addressed to the recipient, postage paid, and
registered or certified with return receipt requested; (c) upon transmission if
sent via telecopier, with a confirmation copy sent via overnight mail, provided
--------
that confirmation of such overnight delivery is received; or (d) one (1)
----
business day after deposit with a national overnight courier provided that
-------------
confirmation of such overnight delivery is received. All notices, requests and
consents to be sent to a Member must be sent to or made at the address given for
that Member on Schedule A, or such other address as that Member may specify by
----------
notice to the other Members. Any notice, request, or consent to the Company or
the Managing Member must be given to the Managing Member at the address for the
Managing Member set forth on Schedule A. Whenever any notice is required to be
----------
given by law, the Certificate or this Agreement, a written waiver thereof,
signed by the Person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
13.2 Entire Agreement. This Agreement constitutes the entire agreement of
----------------
the Members and their Affiliates relating to the Company and supersedes all
prior contracts or agreements with respect to the Company, whether oral or
written.
13.3 Effect of Waiver or Consent. A waiver or consent, express or
---------------------------
implied, to or of any breach or default by any Person in the performance by that
Person of its obligations with respect to the Company is not a consent or waiver
to or of any other breach or default in the performance by that Person of the
same or any other obligations of that Person with respect to the Company.
Failure on the part of a Person to complain of any act of any Person or to
declare any Person in default with respect to the Company, irrespective of how
long that failure continues, does not constitute a waiver by that Person of its
rights with respect to that default until the applicable statute-of-limitations
period has run.
13.4 Amendment, Modification or Waiver. Except as otherwise expressly
---------------------------------
provided herein, this Agreement may be amended, modified or waived from time to
time only by a written instrument adopted by the Managing Member; provided,
however, that (a) except as otherwise expressly provided herein, an amendment or
modification reducing disproportionately a Member's Units or other interest in
profits or losses or in distributions or increasing a Member's Capital
Contribution shall be effective only with that Member's consent, (b) an
amendment, modification or waiver to this Agreement which affects the
liabilities, obligations or rights of a particular class of Units in a manner
which is more adverse than such amendment, modification or waiver affects the
rights of all classes of Units shall be effective only with the consent of the
holders of a majority of the outstanding Units of such class, and (c) an
amendment, modification or waiver reducing the Required Interests for any
consent or vote in this Agreement shall be effective only with the consent or
vote of Members having the interest theretofore required, and provided further
that the
27
Managing Member may amend and modify the provisions of this Agreement and
Schedule A hereto to the extent necessary to reflect the issuance of new Units
-----------
or other interests in the Company as contemplated by Section 3.5 as determined
-----------
in good faith by the Managing Member.
13.5 Binding Effect. Subject to the restrictions on Transfers set forth
--------------
in this Agreement, this Agreement is binding on and shall inure to the benefit
of the Members and their respective heirs, legal representatives, successors and
assigns.
13.6 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL
---------------------------
BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and any provision
of the Certificate or any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control. If any provision of this
Agreement or the application thereof to any Person or circumstance is held
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other Persons or circumstances is not affected
thereby and that provision shall be enforced to the greatest extent permitted by
law.
13.7 Further Assurances. In connection with this Agreement and the
------------------
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
13.8 Waiver of Certain Rights. Each Member irrevocably waives any right
------------------------
it may have to demand any distributions or withdrawal of property from the
Company or to maintain any action for dissolution of the Company or for
partition of the property of the Company.
13.9 Indemnification and Reimbursement for Payments on Behalf of a
-------------------------------------------------------------
Member. If the Company is obligated to pay any amount to a governmental agency
------
(or otherwise makes a payment) because of a Member's status or otherwise
specifically attributable to a Member (including, without limitation, federal,
state or local withholding taxes, state personal property taxes, state
unincorporated business taxes, state personal property replacement taxes, etc.),
then such Member (the "Indemnifying Member") shall indemnify the Company in full
-------------------
for the entire amount paid (including, without limitation, any interest,
penalties and expenses charged against the Capital Account of the Indemnifying
Member, and, at the option of the Members, either:
------
(a) promptly upon notification of an obligation to indemnify the Company,
the Indemnifying Member shall make a cash payment to the Company equal to the
full amount to be indemnified (and the amount paid shall be added to the
Indemnifying Member's Capital Account but shall not be treated as a Capital
Contribution), or
--
28
(b) the Company shall reduce distributions which would otherwise be made
to the Indemnifying Member, until the Company has recovered the amount to be
indemnified (and, notwithstanding Section 4.1, the amount withheld shall not be
-----------
treated as a Capital Contribution).
The provisions of this Section 13.9 shall survive a liquidation, dissolution or
------------
termination of the Company.
13.10 Notice to Members of Provisions. By executing this Agreement, each
-------------------------------
Member acknowledges that it has actual notice of (i) all of the provisions
hereof (including, without limitation, the restrictions on the transfer set
forth in Article XI) and (ii) all of the provisions of the Certificate.
----------
13.11 Counterparts. This Agreement may be executed in multiple
------------
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
13.12 Consent to Jurisdiction. Each Member irrevocably submits to the
-----------------------
non-exclusive jurisdiction of the United States District Court for the Northern
District of Illinois and the state courts of the State of Illinois, sitting in
Chicago, for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each Member further
agrees that service of any process, summons, notice or document by U.S.
certified or registered mail to such Member's respective address set forth above
shall be effective service of process in any action, suit or proceeding in
Illinois with respect to any matters to which it has submitted to jurisdiction
as set forth above in the immediately preceding sentence. Each Member
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the Northern
District of Illinois or the state courts of the State of Illinois, sitting in
Chicago, and hereby irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in such court has been brought in an inconvenient forum.
13.13 Headings. The headings used in this Agreement are for the purpose
--------
of reference only and will not otherwise affect the meaning or interpretation of
any provision of this Agreement.
13.14 Remedies. The Company and the Members shall be entitled to enforce
--------
their rights under this Agreement specifically, to recover damages by reason of
any breach of any provision of this Agreement (including costs of enforcement)
and to exercise any and all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that the Company or any
Member may in its or his sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance or injunctive relief (without
posting a bond or other security) in order to enforce or prevent any violation
or threatened violation of the provisions of this Agreement.
13.15 Parties in Interest. Except as expressly provided in the Act,
-------------------
nothing in this Agreement shall confer any rights or remedies under or by reason
of this
29
Agreement on any Persons other than the Members and their respective successors
and assigns nor shall anything in this Agreement relieve or discharge the
obligation or liability of any other Person to any party to this Agreement, nor
shall any provision give any other Person any right of subrogation or action
over or against any party to this Agreement.
* * * * * *
30
IN WITNESS WHEREOF, the Members have executed this Agreement as of the date
first set forth above.
MEMBERS:
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.L.C.
Its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇ ▇. ▇▇▇▇▇
Its Manager
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
31
SCHEDULE A
----------
Initial
Capital
Initial Capital Account with
Account with Number of respect to
Number of respect to Percentage Class A Class A
Name and Address Investor Investor of Investor Management Management
of Members Units Units Units Units Units
---------------- ---------- --------------- ----------- ---------- -------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P. 15,200,000 $15,200,000.00 93.3949% 0 $0.00
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Avy ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 75,000 $ 75,000.00 0.4608% 0 0
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 333,334 $ 333,333.40 2.0481% 800 $ 800.00
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 333,333 $ 333,333.30 2.0481% 800 $ 800.00
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ III 333,333 $ 333,333.30 2.0481% 400 $ 400.00
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
No. 17-G
Atlanta, GA 30305
TOTALS 16,275,000 $16,275,000.00 100.0000% 2,000 $2,000.00
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Initial
Capital Initial
Account with Capital
Percentage of Number of respect to Percentage of Account with Percentage
Class A Class B Class B Class B respect to of
Management Management Management Management Number of Preferred Preferred
Units Units(1) Units Units Preferred Units Clients Units
---------- -------------- ------------- ------------- --------------- ----------- ----------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P. 0.0000% 0 $0.00 0.0000% 1,000,000 $1,000,000 100%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Avy ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 0% 0 0.00 0.0000% 0 0 0%
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 40.0000% 0 0.00 0.0000% 0 0 0%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 40.0000% 0 0.00 0.0000% 0 0 0%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ III 20.0000% 0 0.00 0.0000% 0 0 0%
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, N.W.
No. 17-G
Atlanta, GA 30305
TOTALS 100.0000% 0 0.00 0.0000% 1,000,000 $1,000,000 100%
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(1) Class B Management Units not to exceed 500 Class B Management Units to be
distributed at a later date at the discretion of ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.
32