EFTA01595020.pdf

OPERATING AGREEMENT OF HYPERION AIR. 1.1...0 A t S Vrin IFlands Lint -v.1 THIS OPERATING AGREEMENT (this "Agreement') is made and entered into RS of ()MIXT 19, 2012 by Jellliey E. Epstein (lunrinaftes referred to as 'Sole Meitherl, with an address at 6100 Red Hook Quarter, B3. Si. Thomas, USV1 0080& who hereby forms HYPERION AIR, 1,1..C” a LS. Virgin Islands limited liability company ithe 'Company") pursuant to theU S Virgin Islands Ili:Lilo= Limited Liability Cearpany Act (the -Act-) upoo the following terrns and conditions: SECIIGN I ORVANIZA'FiON & FORMATION A. Fnrnizonn. The rtirriparty has been organized as a U.S. Virgin Islands limited liabilicy company under and pursuant to the U.S. Virgin Islands Limited Liability Company AO (the 'Act') by the filing of Articles or orgaruzation rArticks) with the Office of the Lieutenant Governer. on October 19, 21112. as required by the Act. B. Name. The name of the Company shall be "IlYPERION iVR. :IC', The Company wain proper nntiet and filing with the Office cif the Lieutenant Governor of the U.S. Virgin Islarids mast cinziod its upenrtions unit; one or anent assumed names. C. Purposes_ The porcfrose of the Company is in engage in any lawful activity. operate an:. lass ful enterprise or to base arr,. other lawfid puTrinse permitted by the Law of the !erriinr) of the Virgir, Islands Fhe Company shall hare all the powers necessary or cor.wenient to tined any purpose for which it is formed. including all powers granted by the Act, Dteal'.0a I be Company shut continue in existence perpetually, beginning on the date of filing of tk Articles unless tenni:vied b law or dissol'ed and terminated. E. Registered Office and ResidensAzent and Place of Businsii” The Registered Office and Retident Atter)! of the Compaq for smiec et process withht the territory shall be: Business Basics VI, 1_,LC, at 9100 Pon of Sale Mall, Suite 15, St. Tharnas, U.S. Virtjn :stands 00802, The Company's pri.ncipai place of businem shall be fliGO Red Honk Qua_ricr. 113. St. Thomas U.S. Virgin Islands CO1U2 or such other place or places as the Sole Member may hereafter determine, SECTION II CAPITAL, STRi!C'l E: MEMBERSHIP UNITS AND CO hrEXISII.M014,5iTRANSFER MEN.IBERSIIIP LNITS EFTA01595020 A. Capital Contribution by the Stile Meinbor: Initial liSiAnCe. The Sole Members ownership tights in the Company shall be reflected in 'Membership Uiiits, as retortied in. the Compaty's records. Upon the formation, of the Company, the Sole Member shall make a capita/ conceits...lion le the capital of the Cornpary in the iimuunt of atsh, or of the pmperty-in-kmd of both, •„set forth opposite the Sole Vlernber's name on the Schedule of Capital Cuntribotions attached hereto. The Company shall thereupon issue to the Sole Mete ber that number of Membership (kilts so subscribed arid contributed for as reflected on said Schedule The Sole Member 'nay make additional capital contributions from time to lime arid at any time and in any. Itmuurtis that hr may desire B. Transfer of Membershai Uaits Subject to the provisions of this Section. a Member may transfer and assign any or all of hjs Membership Units to any one or mere petsons or entities, at any time and from time to time. The :Tansfer and assignment of a Membership Unit does not, in and of itself, cuticle the assignee to participate in the management arid affairs of the Company. or LLI hecome a member. Such assignee is only ent;ried to receive, to the extent assi,grieci the distributions the assigning Member would othenei se he entitled to.. and such assignee shall unly eeaame an assignee of a Membership Coit arid not a substaute Member. An assignee of a Membership Unit shall be admitted as it substitute Member and stall be ernided to all the rights and powers of- the assignor only if an the Members consent. If admitted, the substitute Evlernbet, has to the extent assigned, all of the rights and powers, mid is sabject to all of the restriction and liabilities, of a Member of the Cowan) Noiwithatanding the foregoing, without the consent of any other Member. the Sole Member may, by a duly executed agreement with the assignee, assign any or all or the tvlernhership Units and any or all of the iMembershin Interest then held by the Sole Membi r. together with the Sole Member's management and veting rights in the Company with respect to the Membership Units and Ntlernl-nriship Interest so assigned, and, upon constirr.mation of such assignment, the assignee thereof shall be automatically admitied as a xlistitute member, with atl of the righns. and powers held by. and subject to all of the restrictions EFTA01595021 and liabilities imposed upon. the Sole Member immediately prior to such assignment, to the I I extent of the Membership I.:nits and Membership interest so assigned C. Npinterelti No_gatim of Carii_141. Capital oontributinris :o the Company shall net earn interest, except is otherwise expressly providu. for in iltis Agreement. Except az, otherwise provided in this Agreement, a Member shall riot be entitled to withdraw, or to receive a 'atom of„ a c.apital contribution or any portion thereof; provided, however, that, subject to the pmvisions of Section IV hereof, Inc Sole Member shall from time to time and at any time, in the Sole /44ader's discretion, be entitled to withdraw, and receiVe a return of: all or any part of the Sole .Vlember's e,ipttal contribution. SECT LOIS 111 CAPITAL ACIFOI l'Actital Acc,..n.in; A mpital ecount rCapital Aceiturr) shall be maintancit for the Mvittr, a. -td each additional .Vlernber, if any. in accordarite s'ith the pros isiort of :Fos Artit. lc I_ Increases in Capita:: _Account, The Capitol Account of atch Member shall tic increased In: (a) The fair otiattcl value of the lsit.rnbc(s initial capital vontrih-mion and any additional capital contributions by the Member :o the Contort), If any property, otbeT ihaii cash, is contributed to or thstrihtitcd by the Company, the adjustments to Capital Accounts required by Treasury --Z.egulafion Section 1.704- I ibX21(1„ lid), (c). ( t) and ig) and Section 1.704-1(bk1 )11j shall be made. (..b) The iviernhe(s share of the increase in the tax basis of Company property. if any, arising out of Ifit:recapiure of any tax credit. (c) Allueatianis to ihc Member of rrorti, (d) Company income or gai:t income zutd gain exempt /TOM ifICOMC 13)010011) as provided under this Agreement, or °Itemise by Regulation Section 1.704- I (bX2)iv) The amount of Company liohdines that arc- assumed 1.73. the Ment 2. Demedses in Capita) Accoont. The Capital Aeont ni of each Me731,e7 317.3 dozrea5ed hr (a; The amount of money distributed to the Member by the Curnpan) pursuant to any provision of this Airreement (b) The fair market value of property distributed 10 the Member by the Company net of liabilities secured by such distrihaied property that Member is considered to EFTA01595022 assume or take subject to under Code Section 752) (c) Allocations to the Member Or 1055CS. (d) Allocations tit the Member of deductions: expenses, Noir-entitle Deductions and net losses alincatod to him pursuant to this Agreement and die Members share of Curnpiny expenditnes which are neither deductible nor properly charge-4We to eaprtal Accounts under Code Section 705,(e)(2)(13) or arc treated tis such expend cut r s under Treasur3, Regulation Section, 7044 (b)12 X i v)- ( i ). "Nonrecourse Deductions'. shall have the 7:1 e n it g set forth in Treasury Regutation Section 1704-?. Celinprart: 'at: amount of alt) liabilities of the Mernher that are assumed by the SECTION IV ALLOCATIONS AND DIS'IBIllf:710M?: A. A'AncatiunS. For purposes of maintaining each Member's Capital AcCOUS11 an of the Lompari).' 3 ilie; pm tits. net losses expenses and other items of income, nn os, and credit shall be allocated to the Member in proportion to the Membership Units held by such Nolendx'f as compared to the total mintier of outstanding Metribership Units, All items of Company taxable ireome. gain, lots, deduclion. tkrid credit reeogrtized or allowable for Federal income tax purposes shall be ii,iIarlyallocated atid credited or charged to each Member in proportion to the lvtembership Units held by such Member as compared to the total numbe: or outstanding Memhership Inas A. Distributions,. Nct cash flow shall he distributed at such times and in such amounts as may be determined from time to time and at any :UDC by the Sole Member of the Company in the following priority. I. First to the Members in repayment ninny aii.vance of funds to the Company as lender, ro Lac extent of rind in proportion to such advances. inchtding interest thereon% if any... 2. Additional distributions; if any will he made to the Meribers in proportion En the Membership Units held by them respectively, in such amouras and of such times as ma) be I.5.tiermined by tho Sole Member of the Cvnipany Ittibutipn won Liquidation of the Company. 1. At the tennination of the Company and Bier 'ale Company has satisfied or provided fur the satisfaction of all the Company's debts and other obligations. the Company's u5sels will be distributed in cash to the Members and any EFTA01595023 dissociated members whose Interests have um been previously redeemed first, in discharge of their respective capital interests.; and then. ai proportiou to the Membership Units held by them, respectivey. 2. lithe Company larks sufficient usselsto rruake the distributiums describc:". in the fisrepsting paragraph, the Company will rtuti:o (lists:tuitions in proportion to 'ix! amoullr Ilie itIptCtive capital accounts of the Members and any dissociated members whose n r st s have nor been previously redeemed SECTION V MANAGEMENT OF BUSINESS A, locsneral. 'Pic Company shall be nianagcr-inamid. Manager of the COrnreur,e 1..411: he Lawrence Visuski. The kbalager slur' ma,itige busfteni and affairs et' the Company and shall bate full and complete authority, power and ethernet.' to do all things neeessitty or convenient to manage, control and corr.+, out the business. affairs and properties at the Company, to make ail decisions regarding those matters and to orrirtrnt any and all othor akts or actIvities customary or incident to the management of the Company business B. I irnita.tinn of Mower's Autboritv- Notwithstanding the authority of the Nlanager. the writt....n CI:Merl of the Sole :',Iernber shall be required for the Manager lo: Sell., transfer, assign, convey, or otherwise dispose of any part of le Company's assets; Cause the Company to incur any deb; in excress of 55.003, whether or not in thr ordinary course c.fbusiness: 3 Cause the Company lo incur an debt less fhau 5),(16t1 other than in the ordinary course cif business: 4 Cause the Company to encumbeT an asscu in':onnectiun wi:li any debt rderred to in Clank: 2 or 3 above; isSot: or Sell, or approve the trarl.Sler, aSS:grrnent. Conveyance or Cahn' Lbsposinartct any Membership[huts or tvfernbership Interest In the Company: 6 Adopt, ;upend or repeal the ()pending Agreernerit of the Compar.): 7 Appoint or fill the vacancy of the i'vlanager, S. Approve a plan of merger of the Company with arty other entity. 9 Antend, alter, repeal, or take any al. -lion inconsistent with any resolution of the Sole Member; EFTA01595024 Ift. Incur any single expense or cOMbina4nn of relator] expenses in excess of$5,000: I I. GIU.Ne the Company to make any dilisibulions bus Members. C. Vinirg of Membership liniLs. A ?vtembership Unit is entitled to be voted only if it is owned by a Mernbt:" and each such Membership Unit shall be entitled to one vote Neither an assignee nor a transferee inaty vote a Membership Unit unless such u.ssignec or transferee is admitted as ti NiC7lheT. SECTION VI EXCULPATION' OF LIABILITY LNDLMNIFICATION A. Exculpation of Liability. Unless otherwise provided by law or expressly assumed pUISUallt 113 a written instnnnent signed by such person, neither the Sole Member nor the Manager shall be personally liable for ene acts, Liebo, or liabilities f the Company- B. Indemnification I F.xeept as otherwise provided in this Section, the Cotnpany. its receiver or its trustee shall uidenini6., defend and hold harmless the Sole Member and the Manager and their respective heirs, personal representatives, and successors, and ma) indemnify, defend and hold harmless, any employee or agent, vel-ei was or is a party or is du -mitered to be made a party to a ill:atm-led, pending or contpleted action, suit or proceeding, from and ap.n.st any expense, loss, klaittage or Itehilit3, incurred Pr connected with, or any claim, sail, duntioid, loss, judgment, liability, cost or expense, including, without limitation, reasonable attorticy's fres, arising front or retied to, the Company or arty act or omission of the Sole Member% the Manager ur such empinyer or agent on behalt of the Company , and amounts paid it widen:at n1 any of the above, provided that such amounts. ere not the result of fraud, dross negligence, or iecMess or mtentiottal misconduct on the pail of the Sole Member, the Manager LIr slIch rnpln cc or ROM against whom a claim is asserted. The Company m4y advartoe Cu the Sole Member, the Manager or any such cmpluyee or agent and their respective heirs, personal representatives, and successors the costs of defending any claim, soil or action aguinst such person if suth person undenakes 10 repay the funds advanced. with interest, if the person is not entitled to indemoi tin& r ihk Section. 2. To the extent that the Sole Member, the Manager, or any such employee or EFTA01595025 agent of the ('tmipaz h& been successful on the meritc or °therm ise in defense of an action. slit or proceeding or in defense of any daim, issue or other matter in the action, it or proceeding, such person shall be ioderunified against actual and reasonable expenses, including, without attorne) s' fees. incurred by such person in connection with the action. suit or proceeding and an y Liri. suit or procettiling ttut,ghl to enforce the mandatory indemnification provided herein 3. Any indemnification permitted under this Section, tuless ordered by a court. shall be oracle by the Company only as aothori4ed in the specific CM upon a determination that lhr. indemnification is proper under the cin:umstances because the person to be indemnified has met the applicable standard of conduct arid open an evaluation of the reasonableness of expenses and amounts paid in settlement. This detenninatol and evaluation shall he made by the vote of ihc majority of the Membership Units of the members who are not parties er threatenc.4 to be made parties to the action. suit LIT proceeding. Notwithstanding the foregoing to the loontrarys. no indemnification shall be provided to any Manager, employee or agent of the Company for or in connection with the receipt of a fin2J1cial bent fit to which soch person is rot entitled, voting for or assenttna to a distribution in the Members in violation of this Agreement or the Act or a knowing violation of law SECTION VA LLQUikiiQN The Comptuiy shall be dis_vilved, arid shall terminate and wind up is affairs, upon the determination of the Sole Monbcr to da so. SECTION VIII MISCELLANEOUS PROVISIONS A. $octiol Ilcodiogs. The Section headings and numbers contained IL !hts Arcement have been invertcci only as a tnatter or cotivcrticiv.v igo rot ruftreoce, and ri no way Sjoill b construod Jo define, limit or describe the scope or intero of any provision of this Agreement. B. Scrycnikilitv The invalidity or nneaforceability of any particular provision of this Agreement tali not affect the other provisions hereof; and this Agreement shall be construed in all respects as if such invaitd r tnenforetable provisions were omitted. EFTA01595026 C. Amendir,erti Thts Agreement nay be amended or Ttlercked at any !one, i writIngfl with the consent of the Sole Member. No chAnge or mad:ficaton s Agreement shall It valid uriles in writing and signed by the Sole Member, 1). Bindingiffecl. Subject to the provisions of this Agreement relating to transferability, this Agreement witl be binding upon and shall inure lc the benefit of the parties, and their respective distributees, heirs; successors and assigns_ E. Governing, Law. Reg,ardless of the place where this Aga:erne-lit may be executed by the Sole Member, the rights and obligations of the Sole Member, and any claims and disputes relating therco, shall be subject to and governed by, and construed and enforced in accordance with the laws of the Territory of the U.S Virgin Islands. IN WITNESS WHEREOF, the Sole Member rnaks and executes this Operating Agreement on the day and year first weitten above, WITNESSETH: 501 MEMBER: Jeffrey -.-rpstein DESIGNATION AS MANAGER AND THE TERMS HEREOF APPLICABLE TO THE MANAGER ARE ACCEPTAyp EXHIBIT A E.r.si BER LISTING., 4P HAI. (:ON'FIZIRtliit)Ns Number of Percentiye Ctipita) Membership Membrrskp 1,4 embers Comributed bueresi JEFFREY F. EPSTEIN S1000[10 GO 1 fin% ACCEPTED AND AGREED: . OctobeT I JEFFREY E. EFSTEIN Al. 02.26201S :=,c.f.:e Doc Numbe" Ac..5Dun I N LimLE rs C 30,7. Forrn Type z "CITADEL° 7.erit 1, i7F.k.:627.1RD6 EFTA01595027