EXHIBIT 3.23
OPERATING AGREEMENT
OF
99 COMMISSARY, LLC
OPERATING AGREEMENT
OF
99 COMMISSARY, LLC
THIS OPERATING AGREEMENT is made and entered into as of the 10th day of
December, 2002, by and among the persons listed on Exhibit A hereto (each,
together with the other persons who may become members under the terms of this
Agreement, a "Member" and collectively, the "Members").
W I T N E S S E T H:
WHEREAS, the Member hereto desires to form a limited liability company
under and pursuant to the Act (as defined below), to conduct certain business as
a limited liability company, and to set forth the mutual rights and obligations
of the Members in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
undertakings hereinafter contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Members hereby
agree as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. As used herein the following terms have the
indicated meanings:
1.1.1 "Act" means the Delaware Limited Liability Company
Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated,
as amended from time to time, and any corresponding provisions of any successor
legislation.
1.1.2 "Affiliate," with respect to any Entity, means (a)
any other Entity, directly or indirectly, owning a 50% or greater ownership
interest in such Entity; or (b) any other Entity in which such Entity has a 50%
or greater ownership interest; or, (c) in the event a Member is a natural
person, a member of such Member's Immediate Family or a trust for the benefit of
the Member or a member of such Member's Immediate Family.
1.1.3 "Agreement" means this Operating Agreement, as
amended from time to time.
1.1.4 "Assign" means to make an Assignment.
1.1.5 "Assignment" means any transfer, alienation, sale,
conveyance, assignment, or other disposition of all or any part of an existing
Membership Interest in the LLC, by operation of law or otherwise, including
without limitation any gift, bequest, devise, hypothecation, mortgage, lien,
pledge, encumbrance, or granting of a security interest.
1.1.6 "Available Cash Flow" means all cash, revenues, and
funds received by the LLC, less the sum of the following to the extent paid or
set aside by the LLC: (a) all principal
and interest payments on indebtedness of the LLC and all other sums paid to
lenders; (b) all cash expenditures incurred incident to the normal operation of
the LLC's business; and (c) such reserves as the Members deem reasonably
necessary to the proper operation of the LLC's business.
1.1.7 "Capital Account" in respect of any Member means the
account established for that Member pursuant to Section 5.1 hereof, and as may
be adjusted from time to time in accordance with this Agreement.
1.1.8 "Capital Contribution" shall mean any contribution to
the capital of the LLC in cash or property by a Member whenever made.
1.1.9 "Certificate of Formation" means the Certificate of
Formation of the LLC filed in the Office of the Secretary of State of the State
of Delaware, as amended from time to time.
1.1.10 "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any corresponding provisions of any successor
legislation.
1.1.11 "Dissolution Event" has the meaning given to such
term in Section 12.2 hereof.
1.1.12 "Entity" means any corporation, partnership, trust,
limited liability company, or other entity.
1.1.13 "Financial Rights" means a Member's rights as a
member of the LLC (a) to share in Net Income and Net Loss to the extent provided
in this Agreement, and (b) to share in distributions to the extent provided in
this Agreement.
1.1.14 "Governance Rights" means all of a Member's rights as
a member of the LLC other than Financial Rights.
1.1.15 "Immediate Family" shall mean a Member's mother,
father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson
and granddaughter.
1.1.16 "LLC" means 99 Commissary, LLC, a Delaware limited
liability company.
1.1.17 "Majority in Interest" and "majority in interest of
the remaining Members" each mean Members (other than any Members excluded from
the applicable vote, consent or other action by the terms of this Agreement or
the Act) holding an interest in over 50% of the capital and profits of the LLC.
1.1.18 "Majority of the Membership Interests" and "majority
of the voting power" each mean over 50% of the Membership Percentages (exclusive
of any Membership Percentages excluded from the applicable vote, consent or
other action by the terms of this Agreement or the Act).
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1.1.19 "Managers" means the Chief Manager, Secretary and any
other person appointed to be a "manager" as such term is used in the Act.
1.1.20 "Maximum Tax Liability" has the meaning given such
term in Section 5.5 hereof.
1.1.21 "Members" means the persons who are, from time to
time, admitted as members of the LLC pursuant to the Act and this Agreement and
whose names are set forth on Exhibit A which is attached hereto and made part of
this Agreement, as such Exhibit A may be amended from time to time.
1.1.22 "Membership Interest" means a Member's interest in
the LLC, which when expressed as a percentage of all Membership Interests in the
LLC shall be equal to such Member's Membership Percentage.
1.1.23 "Membership Percentage" means the percentage interest
of a Member as shown on Exhibit A, as amended from time to time as provided in
Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the
Code.
1.1.24 "Net Income" and "Net Loss," for each fiscal year or
other period, means an amount equal to the LLC's taxable income or loss
(including but not limited to any gain or loss to the LLC from any sale or
disposition of all or any portion of the assets of the LLC) for such year or
period, determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss), with the following adjustments:
(i) Expenditures described in
Section705(a)(2)(B) of the Code shall be included as an expense in the
determination of Net Income and Net Loss; and
(ii) Income exempt from taxation shall be
included in the determination of Net Income and Net Loss.
1.1.25 "New Member" means any person other than 99
Restaurants of Massachusetts, a Massachusetts Business Trust.
1.1.26 "Successor" means a Member's executor, administrator,
guardian, conservator, other legal representative, or successor or assign.
1.1.27 "Treasury Regulations" means proposed, temporary, and
final regulations promulgated under the Code.
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ARTICLE II.
ORGANIZATION
2.1 FORMATION. On December 10, 2002, the LLC was formed by the
filing of the Certificate of Formation in the Office of the Secretary of State
of the State of Delaware.
2.2 ADOPTION OF AGREEMENT. The Member hereto hereby adopts this
Agreement as the limited liability company agreement of the LLC, as the term
"limited liability company agreement" is used in the Act, to set forth the
rules, regulations, and provisions regarding the governance of the LLC, the
conduct of its business, and the rights and privileges of its Members.
2.3 NAME. The name of the LLC shall be 99 Commissary, LLC. The LLC
may adopt and conduct its business under such assumed or trade names as the
Members may from time to time determine. The LLC shall file any assumed or
fictitious name certificates as may be required to conduct business in any
state.
2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and
registered office of the LLC shall be The Corporation Trust Company, Corporation
Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, New Castle County.
The principal executive office of the LLC shall be located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the Members
may from time to time determine.
ARTICLE III.
PURPOSE AND POWERS
3.1 PURPOSE. The purpose of the LLC shall be to engage in any
lawful business permitted pursuant to the Act, as amended from time to time, or
any successor provisions thereto.
3.2 POWERS. The LLC may exercise all powers that may be legally
exercised by limited liability companies under the Act necessary or convenient
to carry out its business and affairs and to effectuate the purpose described in
Section 3.1 hereof.
ARTICLE IV.
CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS
4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited
with having made an initial Capital Contribution to the LLC in cash and other
property, tangible and intangible, in the amount set forth opposite such
Member's name on Exhibit A hereto.
4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make
any additional Capital Contribution. Members may make such additional Capital
Contributions as may be approved from time to time by the Members.
4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No
Member shall have the right to withdraw from the LLC except as provided in
Section 12.3 hereof. A Member
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shall not receive out of the LLC's property all or any part of such Member's
Capital Contributions except as provided in Sections 5.7 and 12.4 hereof.
4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on
any Capital Contributions and no Member shall have any preferential rights with
respect to distributions or upon dissolution of the LLC.
4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member
shall be credited with the Membership Interest (expressed as a percentage of all
Membership Interests) and Capital Contribution set forth opposite such Member's
name on Exhibit A. The amounts shown on Exhibit A with respect to Capital
Contributions and Membership Interests shall from time to time be appropriately
amended to reflect changes to such amounts as a result of any additional Capital
Contributions by Members, any withdrawals or reductions in Capital
Contributions, admission of any New Members to the LLC, or any Assignments of
Membership Interests. Exhibit A shall also be amended from time to time to
reflect any changes in the addresses of Members.
ARTICLE V.
ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS
5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an
account to be designated as such Member's "Capital Account." Each such Capital
Account shall be credited (a) with the cash contributions of the respective
Members, (b) with the fair market value of contributions of property by the
respective Members (net of liabilities associated with such contributed property
and assumed by the LLC), and (c) with the respective Member's share, determined
as provided herein, of Net Income. Each Member's Capital Account shall be
debited (a) with the respective Member's share, determined as provided herein,
of Net Loss, (b) with the cash distributed to the respective Members, and (c)
with the fair market value of all distributions of property to the respective
Members (net of liabilities associated with such distributed property). The
Capital Accounts shall be maintained in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit,
gain, expenditures, deductions, and losses that increase or decrease such
capital accounts shall be those items that, pursuant to such Treasury
Regulations, affect the balance of capital accounts.
5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3
and 5.4 hereof, Net Income or Net Loss of the LLC for each fiscal year, and all
items of income, expense, and deduction entering into the determination of such
Net Income or Net Loss, shall be allocated to the Members in proportion to their
Membership Percentages.
5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED
PROPERTY. If a Member contributes property to the LLC which has a difference
between its tax basis and its fair market value on the date of its contribution,
then all items of income, gain, loss, and deduction with respect to such
contributed property shall be determined and allocated among the Members, and
the Capital Accounts of the Members shall be determined in accordance with
Section 704(c) of the Code, the Treasury Regulations thereunder, and Section
1.704-1(b) of the Treasury Regulations, so as to take into account the variation
between the tax basis and fair market value
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of such property at the time of its contribution. Furthermore, in the case of
any required or optional revaluation of LLC property and corresponding
adjustment of Capital Accounts, taxable income, gain, loss, and deduction with
respect to such property shall be allocated among the Members in a manner that
takes into account any variation between the adjusted tax basis of such property
and its book value in the same manner as variations between tax basis and fair
market value are taken into account under Section 704(c) of the Code in
determining income, gain, loss,
5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss
allocable to any Member whose Membership Interest has been Assigned, in whole or
in part, during any fiscal year shall be allocated among the persons who were
the holders of such interests during such year in proportion to their respective
holding periods, without separate determination of the results of LLC operations
during such periods. Net Income or Net Loss attributable to a sale or other
disposition of all or any portion of the assets of the LLC shall be allocated to
those Members who were Members at the time of the occurrence of the disposition
giving rise to such Net Income or Net Loss.
5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding
Financial Rights Holders) otherwise agree, the LLC shall distribute to each
Member, no later than the forty-fifth day after the end of each quarter, an
amount in cash equal to the Maximum Tax Liability for such Member for such
quarter. To the extent there is not sufficient Available Cash Flow to distribute
cash in the amount of the Maximum Tax Liability to each Member, the amount to be
so distributed to the Members shall be reduced in proportion to their Membership
Percentages so as to distribute no more than the total Available Cash Flow at
the time of distribution. "Maximum Tax Liability" in respect of any Member for
any quarter means an amount equal to the product of (x) the LLC's Net Income (as
adjusted to the extent hereinafter provided) for such quarter, (y) a percentage
equal to the then prevailing income tax rate applicable to individuals in the
highest tax bracket for federal income tax purposes or, in the event a Member is
an Entity subject to taxation, the income tax rate applicable to such Entity,
and for state income tax purposes in the state having the highest applicable
state income tax of any of the states in which any of the Members are subject to
state income taxes and (z) a percentage equal to such Member's Membership
Percentage. If there is a difference between the prevailing income and capital
gains tax rates at either the federal or the state level, the Maximum Tax
Liability shall be computed separately for ordinary income and capital gains,
unless each of the Members otherwise agree. Income that is exempt from taxation
shall not be included in the definition of Net Income for purposes of computing
the Maximum Tax Liability.
5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the
distributions provided for in Section 5.5 hereof, the LLC may, but is not
obligated to, make current distributions out of Available Cash Flow as the
Members may determine. Distributions shall be made to the Members in proportion
to their respective Membership Percentages.
5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC,
assets remaining after payment of all LLC debts and obligations in accordance
with Section 18-804 of the Act shall be distributed in proportion to the
Members' Membership Percentages.
5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to
distribute, remit, or pay funds in any manner expressly provided in this Article
V, made in good faith, the Members
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shall incur no liability on account of such distribution, even though such
distribution may have resulted in the LLC retaining insufficient funds for the
operation of its business, which insufficiency resulted in loss to the LLC or
necessitated the borrowing of funds by the LLC.
ARTICLE VI.
MANAGEMENT BY MEMBERS
6.1 MANAGEMENT BY MEMBERS. The business and affairs of the LLC
shall be managed by the Members. All powers to control the business and affairs
of the LLC shall be exercised by or under the direction of the Members.
6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the
LLC for the purpose of its business, and the act of any Member, including the
execution of any instrument in the name of the LLC, for apparently carrying on
in the usual way the business of the LLC, shall bind the LLC, unless the Member
so acting has in fact no authority to act for the LLC in the particular matter
and the person with whom the Member is dealing has knowledge of the fact that
such Member has no authority. An act of a Member which is not apparently for
carrying on the business of the LLC in the usual way does not bind the LLC
unless authorized by the Members as provided in this Agreement or the
Certificate of Formation or as otherwise required by the Act. No action of a
Member in contravention of such Member's authority shall bind the LLC to persons
having knowledge of such restriction.
6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless
authorized by all of the Members, no single Member or group of less than all of
the Members shall have authority in the name of or on behalf of the LLC to:
6.3.1 dispose of the goodwill of all the business;
6.3.2 do any other act which would make it impossible to
carry on the ordinary business of the LLC;
6.3.3 confess a judgment on behalf of the LLC;
6.3.4 submit a claim or liability to arbitration or
reference; or
6.3.5 take any other action that would require the consent
of all of the Members pursuant to this Agreement or the Act.
6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY
OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a
Majority of the Membership Interests, no single Member or group of Members shall
have the authority in the name or on behalf of the LLC to:
(i) sell, lease, exchange or otherwise dispose
of any of the assets of the LLC or enter into any agreement to do the same,
except for sales of assets in the ordinary course of business in an amount less
than 10% of the LLC's net assets (as shown on the LLC's
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balance sheet as of the end of its most recently completed fiscal quarter) in
any single transaction or series of related transactions;
(ii) purchase, lease or otherwise acquire any
assets, or enter into any agreement to do the same, except for acquisitions of
assets in the ordinary course of business in an amount less than 10% of the
LLC's net assets (as shown on the LLC's balance sheet as of the end of its most
recently completed fiscal quarter) in any single transaction or series of
related transactions;
(iii) borrow money or incur indebtedness or other
liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's
balance sheet as of the end of its most recently completed fiscal quarter) in
any single transaction or series of related transactions;
(iv) declare or make any distribution to Members
except pursuant to Section 5.5 hereof;
(v) enter into or agree to enter into any other
transaction outside of the ordinary course of business of the LLC; or
(vi) take any other action that would require the
consent of the Members holding at least a Majority of the Membership Interests
pursuant to this Agreement or the Act.
6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right
to compensation for any services performed on behalf of the LLC except as
determined from time to time by Members holding at least a Majority of the
Membership Interests. Notwithstanding the foregoing, a Member shall have the
right to be reimbursed by the LLC for any out-of-pocket expenses incurred by
such Member in connection with any services performed by the Member on behalf of
the LLC.
6.6 NO EXCLUSIVE DUTY. Each Member may have other business
interests and may engage in other activities in addition to those relating to
the LLC. Neither the LLC nor any Member shall have any right to share or
participate in such other investments or activities of any other Member based on
the fact that each are members of the LLC. No Member shall incur any liability
to any other Member or the LLC as a result of engaging in any other business or
venture.
ARTICLE VII.
MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT
7.1 MEETINGS. Meetings of the Members, for any purpose or
purposes, may be called by the Chief Manager or any Member or Members holding,
in the aggregate, 25% or more of the Membership Interests.
7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or
permitted to be taken at a meeting of Members may be taken without a meeting if
the action is evidenced by one or more written consents describing the action
taken signed by all Members. Such written consent shall be filed with the
minutes or records of the LLC.
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7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may
designate any place, either in or outside the State of Delaware, as the place of
meetings for any meeting of the Members. If no designation is made, the place of
meeting shall be the principal executive office of the LLC. A meeting may take
place by telephone conference call or any other form of electronic communication
through which the Members may simultaneously hear each other. Such meeting shall
be deemed to be held at the principal executive office of the LLC or at the
place properly named in the notice calling the meeting.
7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and
hour of the meeting and the purpose or purposes for which the meeting is called
shall be delivered not less than two days before the date of the meeting, either
personally or by mail, by or at the direction of the person calling the meeting,
to each Member entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered as provided in Section 13.1 hereof. The business
conducted at any meeting need not be limited to the matters referenced in the
notice of the meeting. No notice shall be required for action by written consent
pursuant to Section 7.2 hereof.
7.5 WAIVER OF NOTICE. When any notice is required to be given to
any Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance by a Member at a meeting is
a waiver of notice of such meeting, except if the Member objects at the
beginning of the meeting to the transaction of business because the meeting is
not lawfully called or convened and does not otherwise participate in the
consideration of any matter at the meeting.
7.6 RECORD DATE. For the purpose of determining Members entitled
to notice of or to vote at any meeting of Members or any adjournment thereof, or
Members entitled to receive payment of any distribution, or in order to make a
determination of Members for any other purpose, the date on which notice of the
meeting is mailed or the date on which the resolution declaring such
distribution is adopted, as the case may be, shall be the record date for such
determination of Members. When a determination of Members entitled to vote at
any meeting of Members has been made as provided in this Section 7.6, such
determination shall apply to any adjournment thereof.
7.7 VOTING LIST. When a record date for any meeting has been set
or any notice of a meeting has been mailed, the Secretary of the LLC shall
prepare a list of names of all Members who are entitled to vote at the meeting
and show the address of and Membership Interests held by each Member as
reflected in the records of the LLC. Such list shall be available for inspection
and copying by any Member, beginning two business days after notice of the
meeting is given and continuing through the meeting at the LLC's principal
executive office. Such list shall be identical to Exhibit A hereto, as amended
from time to time, unless the Secretary prepares an alternative list.
7.8 QUORUM. Members holding at least a Majority of the Membership
Interests, represented in person or by proxy, shall constitute a quorum at any
meeting of Members except for any matter that requires the approval of all of
the Members pursuant to the Act or this Agreement.
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7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the
affirmative vote of Members holding at least a Majority of the Membership
Interests shall be the act of the Members, except as to matters as to which the
consent of a lesser or a greater proportion of the Members is otherwise required
by the Act or this Agreement.
7.10 PROXIES. At all meetings of Members, a Member may vote in
person or by proxy executed in writing by a Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the LLC before or at the time
of the meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
ARTICLE VIII.
MANAGERS
8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief
Manager (which office may be designated "President" or "Chief Executive Officer"
or such other designation as the Members may determine from time to time, but
which officer shall in any event perform the functions of the "Chief Manager,"
and any references in this Agreement to the "Chief Manager" shall be deemed to
be references to such officer) and a Secretary to serve as the Managers of the
LLC. The initial Chief Manager shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇. The initial Secretary
shall be A. ▇▇▇▇ ▇▇▇▇▇▇▇▇. The LLC shall have such additional Managers as may be
appointed from time to time by the Members.
8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term
at the pleasure of the Members. A Manager may be removed from office at any time
with or without cause by the Members.
8.3 DUTIES.
8.3.1 Chief Manager. The Chief Manager shall see that all
orders and resolutions of the Members are carried into effect and shall perform
such other duties as the Members may from time to time prescribe.
8.3.2 Secretary. The Secretary shall attend all meetings of
the Members and shall be responsible for recording the minutes thereof. The
Secretary shall have the responsibility of authenticating records of the LLC and
receiving notices required to be sent to the Secretary and shall perform such
other duties as the Members may from time to time prescribe.
8.4 RESIGNATION. Any Manager of the LLC may resign at any time by
giving written notice to the Members. The resignation of any Manager shall take
effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any
right to compensation for services performed on behalf of the LLC except as
determined from time to time by the Members. Notwithstanding the foregoing, a
Manager shall have the right to be
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reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in
connection with any services performed by such Manager on behalf of the LLC.
8.6 NO EXCLUSIVE DUTY. Each Manager may have other business
interests and may engage in other activities in addition to those relating to
the LLC. Neither the LLC nor any Member shall have the right to share or
participate in such other investments or activities of such Manager based on
such Manager's status as a Manager of the LLC. No Manager shall incur any
liability to any Member or the LLC as a result of engaging in any other business
or venture.
ARTICLE IX.
INDEMNIFICATION
9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon
request may advance expenses to, any Member, Manager, employee, or agent of the
LLC, or any person who is serving at the request of the LLC in any such capacity
with another Entity, to the extent, consistent with public policy, permitted by
applicable law.
9.2 INSURANCE. The LLC may purchase and maintain insurance on
behalf of an individual who is or was a Manager, employee, independent
contractor, or agent of the LLC or who, while a Manager, employee, independent
contractor, or agent of the LLC, is or was serving at the request of the LLC as
a manager, employee, independent contractor, agent, partner, or trustee of
another foreign or domestic limited liability company, corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise, against
liability asserted against or incurred by such individual in that capacity or
arising from such individual's status as a Manager, employee, independent
contractor or agent of the LLC whether or not the LLC would have the power to
indemnify such individual against the same liability as provided in Section 9.1
hereof.
9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to
or provided by this Article IX shall not be deemed exclusive of any other rights
to which a person seeking indemnification may be entitled, whether contained in
this Article IX, the Certificate of Formation, in the Act, in a resolution of
the Members, or an agreement providing for such indemnification. This Section
9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any
person in connection with his or her appearance as a witness in a proceeding at
a time when he or she has not been named defendant or respondent to the
proceeding.
ARTICLE X.
FISCAL MATTERS
10.1 BOOKS AND RECORDS. Full and accurate books and records of the
LLC (including without limitation all information and records required by the
Act) shall be maintained at its principal place of business showing all receipts
and expenditures, assets and liabilities, profits and losses, and all other
records necessary for recording the LLC's business and affairs. All Members
shall have the right to inspect and copy the books and records of the LLC,
during regular business hours, at the LLC's principal place of business, upon
provision of notice in
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writing by any Member to the LLC at least five business days before the date on
which such Member desires to inspect and copy said books and records.
10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by
the Members and, in the absence of such determination, shall end on the last
Sunday in December of each year.
10.3 TAX STATUS; ELECTIONS. The Member acknowledges that at all
times that two or more persons or entities hold equity interests in the LLC for
federal income tax purposes (i) it is the intention of the LLC to be treated as
a "partnership" for federal and all relevant state tax purposes and (ii) the LLC
will be treated as a "partnership" for federal and all relevant state tax
purposes and shall make all available elections to be so treated. Until such
time, however, it is the intention of the Member that the LLC be disregarded for
federal and all relevant state tax purposes and that the activities of the LLC
be deemed to be activities of the Member for such purposes. All provisions of
the LLC's Certificate of Formation and this Agreement are to be construed so as
to preserve that tax status under those circumstances. In the event that the LLC
is treated as a partnership for tax purposes in accordance with this Section
10.3, then within ninety (90) days after the end of each fiscal year, the LLC
will cause to be delivered to each person who was a Member at any time during
such fiscal year a Form K-1 and such other information, if any, with respect to
the LLC as may be necessary for the preparation of each Member's federal, state
or local income tax (or information) returns, including a statement showing each
Member's share of income, gain or loss, and credits for the fiscal year.
10.4 BANK ACCOUNTS. All funds of the LLC shall be deposited in its
name at the LLC's principal financial institution or other financial
institutions approved by the Members.
ARTICLE XI.
RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION
OF NEW MEMBERS
11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all
or any part of such Member's Membership Interest in the LLC (including any
Financial Rights, Governance Rights, or other rights pertaining to a Membership
Interest) to any person other than an Affiliate of such Member without the prior
written consent of Members holding a Majority of the Membership Interests.
11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the
Members hereby agrees and acknowledges that the restrictions on Assignment
contained in this Article XI are not unreasonable in view of the nature of the
parties and their relationships to one another and the nature of the business of
the LLC.
11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a
Member or effected in accordance with this Article XI shall become effective and
the assignee shall become a New Member and entitled to the rights of a Member
under this Agreement upon (a) executing a copy of this Agreement and agreeing to
be bound hereby and (b) delivering such executed copy to the LLC in accordance
with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause
Exhibit A to be amended appropriately and will deliver to all Members,
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including the New Member, in accordance with Section 13.1 hereof, a copy of
amended Exhibit A.
11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns
all of his, her, or its Membership Interest shall cease to be a Member;
provided, however, that such former Member or any Successor shall remain liable
to the LLC (a) for any obligations of such Member for wrongful distributions
under Section 18-607 of the Act, and (b) pursuant to any contribution agreements
with the LLC existing at the time of the Assignment of all such Membership
Interest.
ARTICLE XII.
DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE
12.1 TERM. The duration of the LLC shall be perpetual and shall
continue until terminated in accordance with the provisions of this Agreement or
the Act.
12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be
dissolved and its affairs wound up upon the occurrence of any of the following
events (individually, a "Dissolution Event"):
12.2.1 at any time with the prior approval of Members
holding two-thirds or more of the Membership Interests; or
12.2.2 as may be otherwise required by law.
Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the
winding up of the LLC's affairs has been completed following dissolution.
12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC
at any time upon not less than ninety days' prior written notice to the LLC and
each other Member. A withdrawal of a Member shall not cause a Dissolution Event
unless the remaining Members determine to dissolve pursuant to Section 12.2.1.
If the existence and business of the LLC is continued by the remaining Members
after such withdrawal:
a. such withdrawing Member shall have no
Governance Rights with respect to the LLC, and the rights of such
withdrawing Member shall be deemed to be that of an assignee of such
withdrawing Member's Financial Rights owned prior to such withdrawal,
once notice of such Member's withdrawal is given by such withdrawing
Member;
b. no Member shall be entitled to any
distribution from the LLC as a result of such withdrawal; and
c. a withdrawn Member shall remain liable to
the LLC for any existing liability of such withdrawn Member for
wrongful distributions and pursuant to any contribution agreements at
the time of such withdrawal.
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12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the
LLC, the Managers or other persons required or permitted by law to carry out the
winding up of the affairs of the LLC shall promptly notify all Members of such
dissolution; shall wind up the affairs of the LLC; shall prepare and file all
instruments or documents required by law to be filed to reflect the dissolution
of the LLC; and, after collecting the debts and obligations owed to the LLC and
after paying or providing for the payment of all liabilities and obligations of
the LLC, shall distribute the assets of the LLC in accordance with Section 5.7
hereof.
12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a
material inducement to each Member to execute this Agreement, each Member
covenants and represents to each other Member that, during the period beginning
on the date of this Agreement, no Member, nor such Member's heirs,
representatives, successors, transferees, or assigns, will attempt to make any
partition whatever of the assets of the LLC or any interest therein whether now
owned or hereafter acquired, and each Member waives all rights of partition
provided by statute or principles of law or equity, including partition in kind
or partition by sale. The Members agree that irreparable damage would be done to
the goodwill and reputation of the LLC if any Member should bring an action in a
court to dissolve the LLC. The Members agree that there are fair and just
provisions for payment and liquidation of the interest of any Member in the LLC,
and fair and just provisions to prevent a Member from selling or otherwise
alienating his or her interest in the LLC. Accordingly, each Member hereby
waives and renounces his, her or its right to such a court decree of dissolution
or to seek the appointment by court of a liquidator or receiver for the LLC.
ARTICLE XIII.
GENERAL PROVISIONS
13.1 NOTICES. All notices and other communications required or
permitted to be given in respect of this Agreement shall be in writing, and sent
by facsimile, courier service, hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid). Written notice by
the LLC to the Members is effective when mailed, if mailed and correctly
addressed to the Member's address as reflected in the LLC's records. Written
notice to the LLC may be addressed to the LLC's registered agent at its
registered office or to the LLC's Secretary at the LLC's principal executive
office. Written notice to the LLC is effective at the earliest of the following:
(a) when received; (b) five days after its deposit in the United States mail, if
correctly addressed and first class postage affixed thereon; or (c) on the date
shown in the return receipt, if sent by registered or certified mail, return
receipt requested, and the receipt is signed by or on behalf of the addressee.
13.2 INTEGRATION. This Agreement embodies the entire agreement and
understanding among the Members relating to the formation and operation of the
LLC and supersedes all prior agreements and understandings, if any, among and
between the Members relating to the subject matter hereof.
13.3 APPLICABLE LAW. This Agreement and the rights of the Members
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware and specifically the Act.
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13.4 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement or any application thereof shall be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and any other application thereof
shall not in any way be affected or impaired thereby.
13.5 BINDING EFFECT. Except as herein otherwise provided to the
contrary, this Agreement shall be binding upon, and inure to the benefit of, the
Members and their respective heirs, executors, administrators, successors,
transferees and assigns.
13.6 TERMINOLOGY. All personal pronouns used in this Agreement,
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; and the singular shall include the plural, and vice versa. Titles
and Articles are for convenience only and neither limit nor amplify the
provisions of this Agreement itself.
13.7 AMENDMENT. This Agreement may be amended, modified, or
supplemented in writing (a) with the consent of the Members holding a Majority
of the Membership Interests except that any requirement that an action be
approved by Members holding a percentage other than a Majority of the Membership
Interests shall not be amended except with the consent of Members holding such
other percentage of the Membership Interests, and (b) with respect to Exhibit A
hereto, under the circumstances set forth in Section 4.5. No other written or
oral agreement, understanding, instrument or writing other than this agreement
or any amendment hereto shall constitute part of the limited liability company
agreement of the LLC.
13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees
to execute such other and further statements of interest and holdings,
designations, powers of attorney, and other instruments necessary to comply with
any laws, rules, or regulations.
13.9 WAIVERS. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive the right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
Members may have by law, statute, ordinance, or otherwise.
13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the Members hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors, and
assigns.
13.12 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the LLC.
13.13 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the undersigned hereby agrees, acknowledges and
certifies that the foregoing Agreement constitutes the limited liability company
agreement of 99 Commissary, LLC adopted by the Member of the LLC as of the 10th
day of December, 2002.
99 RESTAURANTS OF MASSACHUSETTS,
A MASSACHUSETTS BUSINESS TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Trustee
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EXHIBIT A
MEMBERS NAME AND ADDRESS CAPITAL CONTRIBUTION MEMBERSHIP PERCENTAGES
------------------------ -------------------- ----------------------
99 Restaurants of Massachusetts, $1,000.00 100%
a Massachusetts Business Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TOTAL $1,000.00 100%