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EXHIBIT 10.29.2
AMENDMENT NUMBER ONE TO
LIMITED LIABILITY COMPANY AGREEMENT
OF ▇▇▇▇▇▇▇ CELLULAR LLC
This AMENDMENT NUMBER ONE dated JANUARY 27, 1998 to a Limited
Liability Company Agreement (the "Agreement") is entered into as of July 3,
1996, by and between ▇▇▇▇▇▇▇ Entertainment, Inc., with its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇"), and
Paragon Cellular Services, Inc., with its principal place of business at ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Paragon"):
1. Capitalized terms are used herein with the same meaning as are ascribed
thereto in the Agreement.
2. EFFECTIVE AS OF JULY 3, 1996, SECTION 5.4 OF THE AGREEMENT IS CORRECTED
TO STATE THAT THE REPORTING PERIOD FOR TAX PURPOSES SHALL BE A CALENDAR
YEAR ENDING ON DECEMBER 31 IN EACH YEAR, AND THE FISCAL YEAR FOR OTHER
PURPOSES SHALL END ON NOVEMBER 30.
3. Paragon and ▇▇▇▇▇▇▇ acknowledge that as of December 31, 1997:
▇. ▇▇▇▇▇▇▇ has advanced a total of $500,000.00 on
account of the ▇▇▇▇▇▇▇ Loan and the Additional
▇▇▇▇▇▇▇ Loan referred to in Section 4.1 of the
Agreement on the dates and in the amounts set forth
on the Schedule annexed hereto; and
ii. ▇▇▇▇▇▇▇ has also advanced an additional $1,618,945.00
as a loan to the Company on the dates and in the
amounts set forth on the Schedule annexed hereto
(such $1,618,945.00 OF loans, the Initial ▇▇▇▇▇▇▇
Loan, the Additional ▇▇▇▇▇▇▇ Loan and any other loans
made by ▇▇▇▇▇▇▇ to the Company and referred to in
Section 3 below shall be referred to collectively as
the "▇▇▇▇▇▇▇ Loans").
4. The parties anticipate that additional funds will be required for the
conduct of the Company's business, and ▇▇▇▇▇▇▇ has agreed to waive its
right to request Paragon to contribute a portion of the additional
funds required pursuant to Section 4.3 of the Agreement and has agreed
to provide such additional funds as it determines to be necessary from
time to time for the conduct of the Company's business on the following
terms and conditions:
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i. all such additional funds provided by ▇▇▇▇▇▇▇ will be
loaned to the Company as ▇▇▇▇▇▇▇ Loans, and will be
provided by ▇▇▇▇▇▇▇ in its sole and absolute
discretion;
ii. Section 4.1(a)(i) and (ii) and Section 4.1(b) of the
Agreement are hereby amended to provide that the
terms of repayment of the ▇▇▇▇▇▇▇ Loans, including
the Initial ▇▇▇▇▇▇▇ Loan and the Additional ▇▇▇▇▇▇▇
Loan shall be as follows:
(1) Mandatory prepayments of principal and
interest on the ▇▇▇▇▇▇▇ Loans shall be made
in equal quarterly installments in an amount
equal to twenty (20%) percent of the
Company's retained earnings if retained
earnings as determined by the Company for
the preceding financial quarter are at least
$250,000 or seventy-five (75%) of the
Company's retained earnings if retained
earnings as determined by the Company for
the preceding financial quarter are greater
than $500,000;
(2) Notwithstanding the above, minimum principal
payments of the greater of $10,000.00 or
five (5%) percent of the Company's retained
earnings determined on a semi-annual basis
shall be made semi-annually commencing
January 1, 1997; and
(3) notwithstanding the above or any other
provisions of the Agreement, the ▇▇▇▇▇▇▇
Managers, may, in their discretion, cause
the Company to prepay principal and interest
on the ▇▇▇▇▇▇▇ Loans to the extent of Net
Available Cash, and, in such event, such
prepayments shall be made prior to any
distributions of Net Available Cash under
Sections 5.2(a) and (c) of the Agreement,
subject, however, to the provisions of
Section 5.2(d) of the Agreement which
requires the Company to distribute an amount
equal to forty (40%) percent of the amount
of the Company's profits allocated to each
Member for tax purposes.
iii. effective JANUARY 1, 1997 the Percentage Interest of
Paragon and ▇▇▇▇▇▇▇ shall be as follows:
Member Percentage Interest
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▇▇▇▇▇▇▇ Sixty-five percent (65%)
Paragon Thirty-five percent (35%)
iv. ▇▇▇▇▇▇▇ hereby waives its right under Section 4.3 of
the Agreement to request Paragon to contribute a
portion of any additional funds required by the
Company, and waives any right to provide additional
capital or loans under the provisions of Section
3.2(c) of the Agreement.
5. Nothing herein shall prevent ▇▇▇▇▇▇▇ from proposing that financing for
the operations of the Company be obtained from third parties, subject
to all of the other terms of the Agreement, including Section 3.1.
6. SECTION 5.3 OF THE AGREEMENT IS AMENDED TO PROVIDE AS FOLLOWS,
EFFECTIVE JULY 26, 1996:
A. LOSSES SHALL BE ALLOCATED TO EACH MEMBER IN ACCORDANCE WITH
THEIR RESPECTIVE PERCENTAGE INTERESTS IN THE COMPANY, UNTIL
EACH MEMBER'S CAPITAL ACCOUNT EQUALS ZERO; AND THEREAFTER
B. ONE HUNDRED PERCENT (100%) OF LOSSES SHALL BE ALLOCATED TO
▇▇▇▇▇▇▇; PROVIDED, HOWEVER, THAT IF, AFTER A MEMBER'S CAPITAL
ACCOUNT IS REDUCED TO ZERO, ADDITIONAL CAPITAL CONTRIBUTIONS
ARE MADE BY SUCH MEMBER TO THE COMPANY, LOSSES SHALL
THEREAFTER BE ALLOCATED TO THE MEMBERS IN PROPORTION TO THEIR
RESPECTIVE CAPITAL ACCOUNTS UNTIL EACH MEMBER'S CAPITAL
ACCOUNT EQUALS ZERO; AND
C. PROFITS SHALL BE ALLOCATED TO THE MEMBERS IN PROPORTION TO
THEIR RESPECTIVE NEGATIVE CAPITAL ACCOUNTS UNTIL SUCH TIME AS
ALL MEMBERS' CAPITAL ACCOUNTS EQUAL ZERO; AND, THEREAFTER,
D. PROFITS SHALL BE ALLOCATED TO THE MEMBERS IN ACCORDANCE WITH
THEIR RESPECTIVE PERCENTAGE INTERESTS IN THE COMPANY.
7. SECTION 8.3 OF THE AGREEMENT IS AMENDED TO PROVIDE THAT UPON
DISSOLUTION AND LIQUIDATION OF THE COMPANY, EACH MEMBER WHO HAS A
NEGATIVE CAPITAL ACCOUNT SHALL CONTRIBUTE CAPITAL TO THE COMPANY IN AN
AMOUNT SUFFICIENT SO THAT SUCH MEMBER'S CAPITAL ACCOUNT EQUALS ZERO.
ALL ▇▇▇▇▇▇▇ LOANS SHALL BE REPAID IN FULL PRIOR TO ANY DISTRIBUTION OF
NET AVAILABLE CASH OR ANY OTHER COMPANY PROPERTY TO THE MEMBERS
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UPON SUCH DISSOLUTION AND LIQUIDATION.
8. Except as provided for in this Amendment, the Agreement remains in
full force and effect.
IN WITNESS WHEREOF, the Company and Members have executed this Amendment as of
the date first above written.
COMPANY:
▇▇▇▇▇▇▇ CELLULAR LLC
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
MEMBERS:
▇▇▇▇▇▇▇ ENTERTAINMENT, INC.
By:
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Its President
PARAGON CELLULAR SERVICES, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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4. Seller represents that at the closing of title, or date of possession,
whichever is later, the plumbing (except for children's bathroom), heating and
electrical systems (except for some outside outlets), sump pump, burglar alarm
system, air conditioning systems, pool & sprinkler system, and appliances will
be in working order, with the roof free of leaks, and the pool free of cracks &
leaks. This representation shall not survive the delivery of the deed as set
forth herein. The limit of Seller's liability for non-working appliances is the
market value of such appliances in their condition on the date of this contract.
Purchasers may have the sump pump and burglar system inspected within fifteen
days hereof. Purchasers may have the air conditioning system, pool, pool filter
& heater, & sprinklers inspected prior to closing when weather permits.
22. The purchaser shall have leave the following addition personal property
which was not listed in paragraph #18 of the printed contract of sale; all wall
to wall carpeting, master bedroom built-in cabinet, alarm system, central vacuum
cleaning system & gas BBQ with pole in ground (not operable). The Seller shall
provide keys for all doors including the French doors in the kitchen and family
room and copies of all warranties, if any, for all new appliances and the air
conditioning fan coil units, and the existing (no) termite inspection. The
Seller shall remove the dishwasher and refrigerator from the basement.