261 lines
11 KiB
Markdown
261 lines
11 KiB
Markdown
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# Definitions
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The following terms as used in this Agreement shall be defined as follows:
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## "**Certificate of Formation**"
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means the document filed with the Texas Secretary of State required to form a
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limited liability company in Texas.
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## "**Person**"
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whether capitalized or not, means any individual, sole
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proprietorship, joint venture, partnership, corporation, company, firm,
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bank, association, cooperative, trust, estate, government, governmental
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agency, regulatory authority, or other entity of any nature.
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## "**Company**"
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means the organization defined in Section Company Name
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## "**Membership Interest**" or "**Beneficial Interest**"
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means a Person\'s right to share in the income, gains, losses, deductions,
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credit or similar items of, and to receive distributions from, the
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Company, but does not include any other rights of a Member,
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including the right to vote or to participate in management.
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## "**Member**"
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means a Person who acquires a Membership Interest in the Company,
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as permitted under this Agreement, and who remains a Member of the Company.
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## "**Assignee**"
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means a Person who has acquired a Member's Membership
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Interest in the Company , through a Transfer in accordance with the
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terms of this Agreement.
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## "**Board Of Directors**"
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means the collective group of persons hereafter designated as Board Of Directors in
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accordance with this Agreement.
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## "**Director**"
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means any natural person elected to the Board Of Directors
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in accordance with this Agreement unti such time they are removed from the
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Board Of Directors in accordance with this Agreement.
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## "**Indepdent Directors**"
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A natural person, that the Members and Board Of Directors has determined
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has 'no material relationship' with the Company, either directly or as a
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partner, shareholder or officer of an organization that has a relationship
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with the company.
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## "**Accounting Policies and Procedures**"
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means the policies and procedures adapted from time to time by the Board Of Directors for
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preparation of the Company financial statement, financial projects and
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other accounting reports.
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## "**Adverse Consequences**"
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means all actions, suits, proceedings,
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hearings, investigations, charges, complaints, demands, injunctions,
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judgments, orders, decrees, rulings, damages, dues, penalties, fines,
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costs, amounts paid in settlement, liabilities, obligations, liens,
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losses, expenses, and fees, including court costs and reasonable
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attorney's fees and expenses.
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## "**Affiliate**"
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means, with respect to a Person, another Person,
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directly or indirectly, through one or more intermediaries, controlling,
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controlled by, or under common control with the Person in question. The
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term "control" shall mean the possession, directly or indirectly, of the
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power to direct or cause the direction of the management or policies of
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the controlled Person.
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## "**Assigning Member**"
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means a Member who by means of a Transfer
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has transferred his or her Membership Interest in the Company to an
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Assignee.
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## "**Business Day**"
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means any day other than Saturday, Sunday or
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other day on which commercial banks in Texas are authorized or required
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to be closed under the laws of the state of Texas.
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## "**Capital Account**"
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means, as to any Member, a separate account maintained and adjusted in accordance
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with Section "Distributions To Members".
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## "**Capital Contribution**"
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means, with respect to any Member, the
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amount of money, the forgiveness of any debt, the Fair Market Value of
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any services or property (other than money) contributed to the Company
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(net of liabilities secured by such contributed property that the
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Company is considered to assume or take "subject to" under IRC Section
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752) in consideration of a Percentage Interest held by such Member.
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Under no conditions shall a Capital Contribution be deemed a loan.
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## "**Code"** or "**The Code**" or "**IRC**"
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means the Internal Revenue Code of 1986, as amended, and any successor provision.
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## "**Company Property**"
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means all assets, real, personal and other,
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owned by the Company, whether or not contributed to the Company by a
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Member.
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## "**Encumbrance**"
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means, with respect to any Membership Interest,
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or any element thereof, a mortgage, pledge, security interest, lien,
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proxy coupled with an interest (other than as contemplated in this
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Agreement), option, or preferential right to purchase.
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## "**Encumber**"
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means the act of creating or purporting to create an
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Encumbrance, whether or not perfected under applicable law.
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## "**Fair Market Value**" or "**FMV**"
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means, with respect to any
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item Company Property, the item\'s adjusted basis for federal income tax
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purposes, except as follows:
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A. The Fair Market Value of any property contributed by a Member to the
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Company shall be the value of such property, as mutually agreed by the
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contributing Member and the Company Members; and
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B. The Fair Market Value of any item of Company Property distributed
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to any Member shall be the value of such item of property on the date of
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distribution, as mutually agreed by the receiving Member and the Company.
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## "**Family**"
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means, with respect to a specified individual, such
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individual's lineal or adopted descendants, his or her parents, spouse,
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domestic partner, significant other, siblings, and lineal or adopted
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descendants of any thereof, and any family limited partnership, trust or
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other fiduciary or other entity solely for the benefit of (x) such
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individual, (y) such individual's lineal or adopted descendants or (z)
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such individual's parents, spouse, domestic partner, significant other,
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siblings or lineal or adopted descendants of any thereof.
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## "**Fiscal Year**"
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shall be from January 1 of each year until or unless changed by a Majority Vote of the Members.
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## "**Investment Entity**"
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means any Person in which the Company has an Investment.
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## "**Involuntary Transfer**"
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means, with respect to any Membership
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Interest, or any element thereof, any Transfer or Encumbrance, whether
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by operation of law, pursuant to court order, foreclosure of a security
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interest, execution of a judgment or other legal process, or otherwise,
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including a purported transfer to or from a trustee in bankruptcy,
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receiver, or assignee for the benefit of creditors.
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## "**Member Percentage Interest"**
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means the percentage set forth in the Company agreement.
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## "**Profits and Losses**"
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means, for each fiscal year or other
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period specified in this Agreement, an amount equal to the Company\'s
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taxable income or loss for such year or period, determined in accordance
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with Section 703 (a) of the Code.
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## "**Reserve Amount**"
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means the amount from time to time established
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by the Board Of Directors as a reserve to meet the reasonably
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anticipated working capital needs of the Company.
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## "**Selling Member**"
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means a Member desires to sell any of his or her Membership Interests.
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## "**Sharing Ratios**"
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means the percentages in which Members participate in and bear, certain items.
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## "**Substituted Member**"
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means a Transferee, other than an existing Member, of the Membership Interest
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who may be admitted as a Member with respect to such Membership Interest.
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## "**Successor in Interest**"
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means an Assignee, a successor of a
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Person by merger or otherwise by operation of law, or a transferee of
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all or substantially all of the business or assets of a Person.
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## "**Cause**"
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means (A) a finding by a court or other government body
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or a plea or similar agreement admitting that an act or omission
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constitutes a felony under the laws of the United States or the state of
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Texas, or a violation of the securities law of any United States
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governmental or self-regulatory body, (B) a material and/or fiduciary
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breach of this agreement, or (C) fraudulent behavior.
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## "**Adjusted Capital Account**"
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means, with respect to a Member,
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such Member's Capital Account as of the end of each fiscal year, as the
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same is specially computed to reflect the adjustments required or
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permitted to be taken into account in applying Regulations Section
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1.704-1(b)(2)(ii)*(d)* (including adjustments for Partnership Minimum
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Gain and Partner Nonrecourse Debt Minimum Gain).
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## "**Code**"
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means the Internal Revenue Code of 1986, as amended
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from time to time, and any corresponding provisions of succeeding law.
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## "**Depreciation**"
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means, for each taxable year or other period,
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an amount equal to the depreciation, amortization or other cost recovery
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deduction allowable with respect to an asset for the year or other
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period, except that if the Gross Asset Value of an asset differs from
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its adjusted basis for federal income tax purposes at the beginning of
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the year or other period, Depreciation will be an amount which bears the
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same ratio to the beginning Gross Asset Value as the federal income tax
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depreciation, amortization or other cost recovery deduction for the year
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or other period bears to the beginning adjusted tax basis, provided that
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if the federal income tax depreciation, amortization, or other cost
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recovery deduction for the year or other period is zero, Depreciation
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will be determined with reference to the beginning Gross Asset Value
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using any reasonable method selected by the Board Of Directors.
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## "**Partner Nonrecourse Debt**"
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has the meaning assigned to it in
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Regulations Sections 1.704-2(b)(4) and 1.752-2.
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## "**Partner Nonrecourse Debt Minimum Gain**"
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has the meaning assigned to it in Regulations Section 1.704-2(i)(3).
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## "**Partner Nonrecourse Deductions**"
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has the meaning assigned to it in Regulations Section 1.704-2(i)(2).
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## "**Partnership Minimum Gain**"
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has the meaning assigned to it in Regulations Section 1.704-2(d).
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## "**Profits**" and "**Losses**"
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mean, for each taxable year or
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other period, an amount equal to the Company's taxable income or loss
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for the year or other period determined in
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accordance with Section 703(a) of the Code (including all items of
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income, gain, loss or deduction required to be stated separately under
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Section 703(a)(1) of the Code), with the following adjustments:
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* Any income that is exempt from federal income tax and not
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otherwise taken into account in computing Profits or Losses will be
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added to taxable income or loss;
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* Any expenditures described in Code Section 705(a)(2)(B) or treated
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as Section 705(a)(2)(B) expenditures under Regulations Section
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1.704-1(b)(2)(iv)*(i)*, and not otherwise taken into account in
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computing Profits or Losses, will be subtracted from taxable income or
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loss;
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* Gain or loss resulting from any disposition of property with respect
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to which gain or loss is recognized for federal income tax purposes will
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be computed by reference to the Gross Asset Value of the property,
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notwithstanding that the adjusted tax basis of the property differs from
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its Gross Asset Value;
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* In lieu of depreciation, amortization and other cost recovery
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deductions taken into account in computing taxable income or loss, there
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will be taken into account Depreciation for the taxable year or other
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period;
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## "**Regulations**"
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means the regulations promulgated by the United
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States Department of the Treasury pursuant to and in respect of
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provisions of the Code. All references herein to sections of the
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Regulations shall include any corresponding provisions of succeeding,
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similar, substitute proposed or final Regulations.
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