Member Managed Operating Agreement of LLC
with Managing Member to have Certain Specific Authority
Operating Agreement
of
_____________________________
(Name of LLC)
A Louisiana Limited Liability Company
This Operating Agreement (Agreement) is entered into the _____ day of ____________,
20____, by and between ____________________ (Member) of ___________________
_____________________________________ (street address, city, county, state, zip code),
hereinafter called Member Alpha, and _____________________ (Member), hereinafter called
Member Beta, said Member Alpha and Member Beta, being hereinafter being jointly called
Members.
For and in consideration of the mutual covenants contained in this agreement, and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
ARTICLE I
Formation of Limited Liability Company
1.1.
Formation of LLC. The Parties have formed a Louisiana limited liability company
named ________________________ (Name of LLC). The operation of the LLC shall be
governed by the terms of this Agreement and the provisions of the Louisiana Limited Liability
Company Act (Louisiana Revised Statutes, Title 12, Chapter 22), hereinafter referred to as the
Act. To the extent permitted by the Act, the terms and provisions of this Agreement shall control
if there is a conflict between such Law and this Agreement. The Parties intend that the LLC shall
be taxed as a partnership. Any provisions of this Agreement, if any, that may cause the LLC not
to be taxed as a partnership shall be inoperative.
1.2.
Articles or Organization. The Members Acting through Member Alpha, one of its
Members, filed Articles of Organization, for record in the office of the Louisiana Secretary of
State on _________________ (date), thereby creating the LLC.
1.3.
Business. The business of the LLC shall be the operation of a restaurant and catering
business, and to conduct or promote any lawful businesses or purposes within Louisiana or any
other jurisdiction which a limited liability company is legally allowed to conduct or promote.
1.4.
Registered Office and Registered Agent. The registered office and place of business
of the LLC shall be Member Alpha, and the registered agent at such office shall be Member
Alpha at _____________________________________________________________________
(street address, city, state, zip code). The Members may change the registered office and/or
registered agent from time to time.
1.5.
Duration. The LLC will commence business as of the date of filing and will continue in
perpetuity.
1.6.
Fiscal Year. The LLC's fiscal and tax year shall end December 31.
ARTICLE II
Members
2.1.
Initial Members. The initial Members of the LLC, their initial capital contributions, and
their percentage interest in the LLC are:
Initial
Members
Percentage Interest
in LLC
Capital
Contribution
Member Alpha
_________________
______________
Member Beta
_________________
______________
2.2.
Additional Members. New Members may be admitted only upon the consent of a
majority of the Members and upon compliance with the provisions of this Agreement.
ARTICLE III Definitions
For purposes of this Operating agreement, unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
3.1.
Act means the Louisiana Limited Liability Company Act (Louisiana Revised Statutes,
Title 12, Chapter 22), and all amendments to the Act.
3.2.
Additional Member means a Member other than an Initial Member who has acquired a
Unit from the Company.
3.3.
Articles mean the Articles of Organization of the Company as properly adopted and
amended from time to time by the Members and filed with the Secretary of State.
3.4
Bankruptcy means the Bankruptcy of a Person shall be deemed to have occurred upon
the happening of any of the following:
A.
The valid appointment of a receiver or trustee to administer all or a substantial
portion of a Person's assets or a Person's Units;
B.
The filing by a Person of a voluntary petition for relief under the Bankruptcy Code
or of a pleading in any court of record admitting in writing its ability to pay its debts as
they become due;
C.
The making by a Person of a general assignment for the benefit of creditors;
D.
The filing by a Person of an answer admitting the material allegations of, or its
consenting to or defaulting in answering, a petition for relief filed against it in any
proceeding under the Bankruptcy Code; or
E.
The entry of an order, judgment or decree by any court of competent jurisdiction,
granting relief against a Person in a proceeding under the Bankruptcy Code.
3.5.
Book Value means, with respect to Property Contributed to the Company or Company
Property which has been revalued, the fair market value of the Property at the time of
Contribution or Revaluation as adjusted for depreciation, depletion, amortization, and gain or
loss, as computed in accordance with 26 C.F.R. § 1.704-1(b)(2)(iv)(g) of the Regulations.
3.6.
Capital Account means the account maintained for a Member.
3.7.
Capital Contribution means any Contribution or contribution of services made by or on
behalf of a Member as consideration for Units.
3.8.
Code means the Internal Revenue Code of 1986 as amended from time to time.
3.9.
Commitment means the obligation of a Member to make a Capital Contribution in the
future.
3.10. Company or LLC means ___________________________ (name of Limited Liability
Company), a limited liability company formed under the laws of Louisiana, and any successor
limited liability company.
3.11. Company Agreement means this Operating Agreement including all amendments
adopted in accordance with this Company Agreement and the Act.
3.12 Company Liability means any enforceable debt or obligation for which the Company is
liable or which is secured by any Company Property.
3.13. Company Minimum Gain means an amount determined by first computing for each
Company Nonrecourse Liability any gain the Company would realize if it Disposed of Company
Property subject to that liability for no consideration other than full satisfaction of the liability, and
then aggregating the separately computed gains. The amount of Company Minimum Gain
includes such minimum gain arising from a conversion, refinancing, or other change to a debt
instrument, only to the extent a Member is allocated a share of that minimum gain. For any
Taxable Year, the net increase or decrease in Company Minimum Gain is determined by
comparing the Company Minimum Gain on the last day of the immediately preceding Taxable
Year with the Minimum Gain on the last day of the current Taxable Year. Notwithstanding any
provision to the contrary contained in this agreement, Company Minimum Gain increases and
decreases in Company Minimum Gain are intended to be computed in accordance with 26
U.S.C.A. § 704 of the Code and the Regulations issued under it, as the same may be issued
and interpreted from time to time. A Member's share of Company Minimum Gain at the end of
any Taxable Year equals: the sum of Nonrecourse Deductions allocated to that Member (and to
that Member's predecessors in interest) up to that time and the Distributions made to that
Member (and to that Member's predecessors in interest) up to that time of proceeds of a
nonrecourse liability allocable to an increase in Company Minimum Gain minus the sum of that
Member's (and of that Member's predecessors in interest) aggregate share of the net decreases
in Company Minimum Gain plus their aggregate share of decreases resulting from Revaluations
of Company Property subject to one or more Company Nonrecourse Liabilities.
3.14. Company Nonrecourse Liability means a Company Liability to the extent that no
Member or Related Person bears the economic risk of loss (as defined in 26 C.F.R. § 1.752-2 of
the Regulations) with respect to the liability.
3.15.
Company Property means any Property owned or leased by the Company.
3.16. Contributing Members means those Members making Capital Contributions as a result
of the failure of a Delinquent Member to perform a Commitment.
3.17.
Contribution means any contribution of Property made by or on behalf of a Member as
consideration for Units.
3.18. Default Interest Rate means the higher of the legal rate or the then-current prime rate
quoted by the largest commercial bank in the jurisdiction of the Principal Office plus ______%.
3.19. Delinquent Member means a Member who has failed to meet the Commitment of that
Member.
3.20. Distribution means a transfer of Property to a Member on account of the Member's
Units.
3.21. Disposition or Dispose means any sale, assignment, transfer, exchange, mortgage,
pledge, grant, hypothecation, or other transfer, absolute or as security or encumbrance
(including dispositions by operation of law).
3.22.
Initial Contribution means the Contribution agreed to be made by the Initial Members.
3.23.
Initial Members means Member Alpha and Member Beta.
3.24.
Manager means a Member selected to manage the affairs of the Company.
3.25. Member means an Initial Member, Substituted Member or Additional Member,
including, unless the context expressly indicates to the contrary, a Manager.
3.26. Member Minimum Gain means an amount determined by first computing for each
Member Nonrecourse Liability any gain the Company would realize if it Disposed of Company
Property subject to that liability for no consideration other than full satisfaction of the liability, and
then aggregating the separately computed gains. The amount of Member Minimum Gain
includes such minimum gain arising from a conversion, refinancing, or other change to a debt
instrument, only to the extent a Member is allocated a share of that minimum gain. For any
Taxable Year, the net increase or decrease in Member Minimum Gain is determined by
comparing the Member Minimum Gain on the last day of the immediately preceding Taxable
Year with the Minimum Gain on the last day of the current Taxable Year. Notwithstanding any
provision to the contrary contained in this agreement, Member Minimum Gain increases and
decreases in Member Minimum Gain are intended to be computed in accordance with 26
U.S.C.A. § 704 of the Code and the Regulations issued under that Section, as the same may be
issued and interpreted from time to time.
3.27. Member Nonrecourse Liability means any Company Liability to the extent the liability
is nonrecourse under state law, and on which a Member or Related Person bears the economic
risk of loss under 26 C.F.R. § 1.752-2 of the Regulations because, for example, the Member or
Related Person is the creditor or a guarantor.
3.28. Members Owning a Majority Interest means Members owning Units in excess of onehalf of the Units then outstanding.
3.29. Money means Cash or other legal tender of the United States, or any obligation that is
immediately reducible to legal tender without delay or discount. Money shall be considered to
have a fair market value equal to its face amount.
3.30.
Net Profit or Net Loss means the taxable income or loss for any period determined in
accordance with 26 U.S.C.A. § 703(a) of the Code. Net Profits and Net Loss shall include all
items of income, gain, loss, or deduction, regardless of whether they are computed without
reference to separately stated items and shall include items described in 26 U.S.C.A. § 705(a)
(1)(B), (2)(B) of the Code.
3.31. Nonrecourse Liabilities means nonrecourse liabilities including Company Nonrecourse
Liabilities and Member Nonrecourse Liabilities.
3.32. Notice means written notice given in accordance with the Company Agreement. Notice
to the Company shall be considered given when mailed by first class mail postage prepaid
addressed to any Manager in care of the Company at the address of Principal Office. Notice to
a Member shall be considered given when mailed by first class mail postage prepaid addressed
to the Member at the address reflected in this Company Agreement unless the Member has
given the Company a Notice of a different address.
3.33. Organization means a Person other than a natural person. Organization includes, but is
not limited to, corporations (both nonprofit and other corporations), partnerships (both limited
and general), joint ventures, limited liability companies, and unincorporated associations, but the
term does not include joint tenancies and tenancies by the entirety.
3.34. Organization Expenses means those expenses incurred in the organization of the
Company including the costs of preparation of this Company Agreement and Articles.
3.35. Permitted Transferee means, with respect to a Member, the Member's spouse, children
(including natural, adopted and stepchildren), grandchildren, and parents, or an Organization
controlled by such Member or by the Member's spouse, children (including natural, adopted and
stepchildren), grandchildren, and parents.
3.36. Pro Rata in Proportion to Units means the proportion that a Member's Units bears to
all Units then outstanding (or in the case of Remaining Members, the proportion that a
Member's Units bears to all Units held by Remaining Members).
3.37. Proceeding means any judicial or administrative trial, hearing or other activity, civil,
criminal or investigative, the result of which may be that a court, arbitrator, or governmental
agency may enter a judgment, order, decree, or other determination which, if not appealed and
reversed, would be binding upon the Company, a Member or other Person subject to the
jurisdiction of such court, arbitrator, or governmental agency.
3.38. Property means any property real or personal, tangible or intangible (including
goodwill), including Money and any legal or equitable interest in such property, but excluding
services and promises to perform services in the future.
3.39. Person means an individual, trust, estate, or any incorporated or unincorporated
organization permitted to be a Member of a limited liability company under the laws of
Louisiana.
3.40. Regulations, except where the context indicates otherwise means, the permanent,
temporary, proposed, or proposed and temporary regulations of Department of the Treasury
under the Code as such regulations may be lawfully changed from time to time.
3.41.
Related Person means a person having a relationship to a Member that is described in
26 C.F.R. § 1.752-4(b) of the Regulations.
3.42. Remaining Managers means, in the case of a Manager who has any potential conflict
of interest or transaction between a Manager and the Company, the Managers not having the
potential conflict of interest or participating in the transaction.
3.43. Remaining Members means, in the case of a Manager or Member who has any
potential conflict of interest or transaction between a Manager who, coincidentally, is a Member
of the Company, the Members not having the potential conflict of interest or participating in the
transaction, and, in the case of a Sale of Units, the Members other than the Selling Member.
3.44. Remaining Members Owning a Majority Interest means Remaining Members owning
Units equal to more than one-half of the Units owned of all the Remaining Members.
3.45.
Removal means the act of the Members by which a Manager is removed.
3.46. Resignation means the act of the Manager by which such Member ceases to be a
Manager but continues to be a Member.
3.47.
Revaluation means the adjustment to the Book Value of Company Property.
3.48.
Revaluation Date means the date on which a Revaluation Event occurs.
3.49.
Revaluation Event means:
A.
Contribution (other than a de minimis amount);
B.
A Distribution (other than a de minimis amount) to a Member as consideration for
a Unit; or
C.
A liquidation of the Company.
3.50. Sale or Sell means, with respect to a Unit, a voluntary Transfer of the Unit for
consideration.
3.51. Section, where the term is capitalized and does not refer to the Code or Regulations,
refers to a section of this Company Agreement.
3.52. Taxable Year means the taxable year of the Company as determined pursuant to 26
U.S.C.A. § 706 of the Code.
3.53. Taxing Jurisdiction means any state, local, or foreign government that collects tax,
interest or penalties, however designated, on any Member's share of the income or gain
attributable to the Company.
3.54. Transfer means, with respect to a Unit, a Disposition by which the ownership of the
interest changes. Transfer does not include a Disposition by mortgage, pledge, hypothecation,
or other transfer as security or encumbrance.
3.55. Transferee means, with respect to a Unit, the Person who acquires ownership of a Unit
as a result of a Transfer.
3.56. Units means a Member's share of the Company's Net Profits, Net Loss and Distributions
pursuant to this Company Agreement and the Act; share in allocations of income, gain, loss,
deduction in or credit or similar items; Capital Account; and right to participate in the
management or affairs of the Company.
Article IV
Accounting and Records
4.1. Records To Be Maintained. The Managers shall maintain the following records at the
Principal Office:
A.
A current list of the full name and last known business address of each Member,
former Member and other holder of a Unit;
B.
A copy of the Articles and all amendments, together with executed copies of any
powers of attorney pursuant to which Articles has been executed;
C.
Copies of the Company's federal, foreign, state and local income tax returns and
reports, if any, for the three most recent years;
D.
Copies of this Company Agreement, including all amendments;
E.
Any financial statements of the Company for the ______ (number of years)
most recent years;
F.
If not set forth in this Company Agreement, a writing or other data compilation
from which information can be obtained through retrieval devices into reasonably usable
form setting forth the following:
1.
The amount of cash and a description and statement of the agreed value
of the other property or services contributed by each Member and which each
Member has agreed to contribute;
2.
The times at which, or events, on the happening of which any additional
Commitments agreed to be made by each Member are to be made;
3.
Any right of a Member to receive, or the Company to make, Distributions
which include a return of all or any part of the Member's Capital Contribution; and
4.
Any events upon the happening of which the Company is to be dissolved
and its affairs wound up.
G.
Member's Access to Records. The Managers shall provide Members and their
agents and attorneys access for proper purposes to records. The Company may impose
a reasonable charge, limited to the costs of labor and material, for copies of records
furnished.
H.
Reports to Members.
1.
The Managers shall provide reports at least annually to the Members at
such time and in such manner as the Managers may determine reasonable.
2.
The Managers shall provide all Members with those information returns
required by the Code and the laws of any state.
Article V
Names and Addresses of Members
The names and addresses of the Initial Members and the designation of Managers are Member
Alpha, who is also Manager, resides at ____________________________________________
__________________ (street address, city, state, zip code), and Member Beta resides at
____________________________________________________________________________
(street address, city, state, zip code).
Article VI
Management
6.1.
Management. The business and affairs of the Company shall be managed by its
Manager. Except for situations in which the approval of the Member is expressly required by this
Company Agreement or by non-waivable provisions of applicable law, the Manager shall have
full and complete authority, power and discretion to manage and control the business, affairs
and properties of the Company, to make all decisions regarding those matters and to perform
any and all other acts or activities customary or incident to the management of the Company's
business to the extent provided or limited by this Article VI.
6.2.
Number, Tenure and Qualifications. The Company shall initially have one Manager.
The number of Managers shall be fixed from time to time by the affirmative vote of Members
Owning a Majority Interest, but in no instance shall there be less than one Manager. Each
Manager shall hold office until the Manager ceases to be a Manager. Managers shall be
appointed by the affirmative vote of Members Owning a Majority Interest. Managers need not be
Members or residents of Louisiana.
6.3.
Certain Powers of Managers and Restrictions on Authority of the Manager.
A.
Subject to Subsections B and C of this Agreement, the Manager (or if there is
more than one Manager, a Majority of the Managers) shall have power and authority to
take the following actions on behalf of the Company:
1.
To do and perform all other acts as may be necessary or appropriate to
carry out the Company's purpose, including any action which this Company
Agreement provides is to be taken by the Managers;
2.
To issue Units and set the consideration for Units, provided that the
Managers shall not issue Units at any time there are more than _________
(number of units) Units outstanding without the consent of Members Owning a
Majority Interest;
3.
To locate or relocate a place of business for the Company;
4.
To execute, or to appoint officers and agents with such designation as the
Managers may determine to execute, on behalf of the Company all instruments
and documents, including, but not limited to, checks; drafts; notes and other
negotiable instruments; mortgages or deeds of trust; security agreements;
financing statements; documents providing for the acquisition, mortgage,
investment or Disposition of property, including the licensing of intellectual
property;
5.
To appoint and fix compensation for officers and other agents for the
Company;
6.
To acquire property from any Person as the Managers may determine.
The fact that a Manager or a Member is directly or indirectly affiliated or
connected with any such Person shall not prohibit the Managers from dealing
with that Person provided that the Member or Manager shall fully disclose the
affiliation or connection and the transaction has been approved by the Remaining
Members Owning a Majority Interest after such disclosure;
7.
To open bank accounts in the name of the Company, and the Managers
shall be the sole signatory on such bank accounts, unless the Managers
determine otherwise;
8.
To borrow money for the Company from banks, other lending institutions,
the Managers, Members, or Affiliates of the Managers or Members, on such
terms as the Managers and Members Owning a Majority Interest deem
appropriate, and in connection with such borrowing, to hypothecate, encumber
and grant security interests in Company Property to secure repayment of the
borrowed sums. No debt shall be contracted or liability incurred by or on behalf of
the Company except by the Managers subject to the approval of Members
Owning a Majority Interest, or to the extent permitted under the Act, by agents or
employees of the Company expressly authorized to contract such debt or incur
such liability pursuant to the Act;
9.
To purchase liability and other insurance to protect the Company's
property and business;
10.
To invest any Company funds (by way of example but not limitation) in
time deposits, short-term governmental obligations, commercial paper or other
investments;
11.
To confess a judgment against the Company;
12.
To cause the Company to incur any liabilities, including borrowing capital;
13.
To cause the Company to make any capital expenditure; and
14.
To employ accountants, legal counsel, managing agents or other experts
to perform services for the Company and to compensate them from Company
funds.
15.
With the consent of Members Owning a Majority Interest, any Manager
shall have power and authority, on behalf of the Company:
a.
To consent to the issuance of additional Units at any time there
are more than [minimum number of units] Units;
b.
To initiate a proceeding for the Bankruptcy of the Company;
c.
To cause a change in the purpose of the Company;
d.
To do any act which would make it impossible to fulfill the purpose
of the Company;
e.
To amend this Company Agreement or take any action in violation
of this Company Agreement;
f.
To cause the Company to voluntarily initiate a proceeding under
which the Company would become a Debtor under the United States
Bankruptcy Code; and
g.
To sell, exchange or otherwise Dispose of all, or substantially all,
of the Company Property other than in the ordinary course of the
Company's business.
16.
Notwithstanding any other provision of this Section 6.3, neither the
Manager nor any Member or Members shall have the authority to amend this
Company Agreement or take any action that would have a Material Adverse
Effect on a similarly situated group of Members (the Affected Group) without the
consent of Members of the Affected Group owning a majority of the Units held by
all Members within the Affected Group, or, if the Material Adverse Affect does not
affect a group of Members in the same way, by each Member who would suffer a
Material Adverse Affect. For purposes of this Subsection 6.3, a Material Adverse
Affect is any increase in the obligation to make contributions, any modification of
the allocation to the Affected Member or Affected Group of Net Profits, Net
Losses, income, gain, loss or credit for tax purposes or for determination of
Capital Accounts or any modification in a Member's right to Distributions.
Notwithstanding the foregoing, no increase or decrease of the number of
outstanding Units or allocation of Net Profits, Net Losses, income, deduction or
credit required by the Code shall be considered a Material Adverse Affect.
B.
Liability for Certain Acts. The Managers do not, in any way, guarantee the
return of the Members' Capital Contributions or a profit for the Members from the
operations of the Company. A Manager's duty of care in the discharge of the Manager's
duties to the Company and the other Members is limited to refraining from engaging in
grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of
law. In discharging its duties, a Manager shall be fully protected in relying in good faith
upon the records required to be maintained under Article IV and upon such information,
opinions, reports or statements by any of its other Members, or agents, or by any other
person, as to matters the Manager reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care by
or on behalf of the Company, including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits or losses of the Company or any
other facts pertinent to the existence and amount of Company Property from which
Distributions might properly be paid.
C.
Managers and Members Have No Exclusive Duty to Company. No Manager
shall be required to manage the Company as its sole and exclusive function and it (and
any Manager and/or Member) may have other business interests and may engage in
other activities in addition to those relating to the Company. Neither the Company nor
any Member shall have any right, by virtue of this Company Agreement, to share or
participate in such other investments or activities of the Manager and/or Member or to
the income or proceeds derived from the same. Neither the Manager nor any Member
shall incur any liability to the Company or to any of the Members as a result of engaging
in any other business or venture.
D.
Indemnity of the Managers, Employees and Other Agents. The Company
shall indemnify the Managers and make advances for expenses to the maximum extent
permitted under the Act. The Company shall indemnify its employees and other agents
who are not Managers to the fullest extent permitted by law, provided that such
indemnification in any given situation is approved by the Managers.
E.
Notwithstanding any other provision of this Company Agreement, no Manager
shall be liable to any Member of the Company with respect to any act performed or
neglected to be performed in good faith and in a manner which such Manager believed
to be necessary or appropriate in connection with the ordinary and proper conduct of the
Company's business or the preservation of its property, and consistent with the
provisions of this Company Agreement. The Company shall indemnify the Managers for
and hold them harmless from any liability, whether civil or criminal, and any loss,
damage, or expense, including reasonable attorneys' fees, incurred in connection with
the ordinary and proper conduct of the Company's business and the preservation of its
business and property, or by reason of the fact that such person is or was a Manager;
provided the Manager to be indemnified acted in good faith and in a manner such
Manager believed to be consistent with the provisions of this Company Agreement; and
provided further that with respect to any criminal action or proceeding, the Manager to
be indemnified had no reasonable cause to believe the conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent shall not of itself create a
presumption that indemnification is not available under this agreement. The obligation of
the Company to indemnify any Manager under this agreement shall be satisfied out of
Company Property only, and if the Company Property is insufficient to satisfy its
obligation to indemnify any Manager, such Manager shall not be entitled to contribution
from any Member.
F.
Cessation as Manager. Any Manager shall cease to be a Manager on the
Manager's Bankruptcy, death, dissolution, incompetence, Resignation or Removal, but
not on the merger or conversion of the Manager. A Manager may Resign at any time by
giving written notice to the Members. The Resignation of any Manager shall take effect
upon receipt of notice of such resignation or at such later time as shall be specified in
such notice; and, unless otherwise specified in the notice, the acceptance of such
Resignation shall not be necessary to make it effective. All or any lesser number of
Managers may be Removed at any time with or without cause by Members Owning a
Majority Interest determined without regard to any Units held by the Manager or an
Affiliate of the Manager. Any Member who has ceased to be a Manager shall continue to
be a Member and such cessation shall not affect the rights of such Member as a
Member or Unit Owner, as the case may be.
G.
Vacancies. Any vacancy occurring for any reason other than an increase in the
number of Managers shall be filled by the Managers, if any, or, if none, by affirmative
vote of Members Owning a Majority Interest (determined without regard to any Units
owned by a Manager who was Removed during the preceding _____ (number)-month
period). Any Manager's position to be filled by reason of an increase in the number of
Managers shall be filled by the affirmative vote of a Members Owning a Majority Interest.
H.
Compensation, Reimbursement, Organization Expenses.
1.
The compensation of the Managers shall be fixed from time to time by the
Managers and no Manager shall be prevented from receiving such compensation
by reason of the fact that it is also a Member. No Member shall be entitled to
compensation from the Company for services rendered to the Company as a
Member or Unit Owner.
2.
Upon the submission of appropriate documentation each Member and
Manager shall be reimbursed by the Company for reasonable out-of-pocket
expenses incurred by such Member or Manager on behalf of the Company at the
Company's request, or, if not requested by the Company, to the extent approved
by the Managers. Without limiting the foregoing sentence, the Company shall
reimburse the Managers and Members for the legal expenses reasonably
incurred by them in connection with the formation, organization and capitalization
of the Company, including the legal fees incurred in connection with the
preparation of this Company Agreement and other actions in connection with the
organization, operation, and liquidation of the Company.
3.
The Manager shall cause the Company to make an appropriate election
to treat the expenses incurred by the Company in connection with the formation
and organization of the Company to be amortized under the [number of months]month period beginning with the month in which the Company begins business to
the extent that such expenses constitute organizational expenses of the
Company within the meaning of 26 U.S.C.A. § 709(b)(2) of the Code.
I.
Right to Rely on the Managers. Any Person dealing with the Company may rely
(without duty of further inquiry) upon a certificate signed by any Manager as to:
1.
The identity of any Manager or Member;
2.
The existence or nonexistence of any fact or facts which constitute a
condition precedent to acts on behalf of the Company by any Manager or which
are in any other manner germane to the affairs of the Company;
3.
The Persons who are authorized to execute and deliver any instrument or
document of the Company; or
4.
Any act or failure to act by the Company or any other matter whatsoever
involving the Company or any Member.
6.4.
Additional Management Provisions.
A.
Notwithstanding the foregoing, and anything to the contrary
notwithstanding, the Members agree as follows:
1.
The Members hereby delegate the management of the LLC to Member
Alpha, subject to the limitations set out in this Agreement.
2.
The Members shall elect and may remove the Manager by majority vote.
3.
Member Alpha shall serve until a successor is elected by the Members.
4.
Member Alpha shall have the authority to take all necessary and proper
actions in order to conduct the business of the LLC.
5.
Except as specifically stated in this Agreement, either Member can take
any appropriate Action on behalf of the LLC.
6.
Except as specifically stated herein, the determination of the timing and
total amount of distributions to the Members and the actions of Member Alpha
shall be based on a majority vote of the Members, with or without a meeting.
7.
Except as specifically stated in this Agreement, the compensation to
Manager Alpha shall be in the discretion of the majority of the Members of the
LLC.
8.
There shall be one initial Manager.
a.
The initial Manager is Member A.
b.
Both Members will participate in the decisions concerning new
construction and the choosing of the CPA for the LLC. Member Alpha
shall be in charge of the renting and construction of any tenant space
operated by the LLC.
c.
Member Beta will be in charge of sales, managing the day to day
operations of the any restaurant operated by the LLC including off site
catering services, opening and closing the restaurant, manage the staff
and inventory, and making the necessary bank deposits. Manager Beta
will give regular reports to Manager Alpha of the business of the
restaurant, including sales, and Manager Alpha reserves the right to be
involved in the day to day business of the restaurant as he deems in the
best interest of the LLC. Manager Alpha will be in charge of the overall
financial operation of the LLC including making all disbursements.
Member Alpha will manage the construction of the tenant space
d.
Member Alpha agrees to loan the LLC the sum of at least
$_________ with interest thereon from the date at the rate of _____% per
annum on the unpaid balance until paid. The said principal and interest
shall be payable at ___________________________________________
___________ (street address, city, state, zip code), in _______
consecutive monthly installments of %__________. The first of said
installments shall be due and payable on the ________________ (date),
and each subsequent monthly installment shall be due and payable on
the first day of each succeeding month thereafter until the entire
indebtedness is fully paid. When said debt is paid, Member Alpha will
assign such interest in the LLC to Manager B in order for the ownership
of the LLC to be held equally by each Member. Said transfer will not be
made until, in the judgment of Member Alpha, the reserve capital of the
LLC has reached an acceptable level. Until said date is paid and transfer
made, Member Beta’s draw from the LLC shall be limited to $_________
per week. Member Alpha will make no draws until such transfer is made.
e.
All money will be deposited in the LLC account at _____________
________________ (Name of Bank) located at ____________________
________________________________________ (street address, city,
state, zip code).
f.
Member Beta agrees that at no time during the time he is a
Member of LLC will Member, for himself or on behalf of any person,
corporation or entity other than the LLC, be directly or indirectly engaged
in any other restaurant business or in the business of catering except for
LLC.
B.
Member Beta hereby assigns to Member Alpha all of Member Beta’s right, title
and interest to the _______________________________ (Name of LLC) including the
right to trademark same.
Article VII
Contributions and Capital Accounts
7.1
Initial Contributions. Each Initial Member shall make the Contribution set forth in
Article II.2 described for that Member and shall perform that Member's Commitment. If no time
for the Contribution is specified, the Contributions shall be made upon the filing of the Articles
with the Secretary of State. No interest shall accrue on any Contribution and no Member shall
have the right to withdraw or be repaid any Contribution except as provided in this Company
Agreement
7.2.
Additional Contributions. In addition to the Initial Contributions and Commitments, the
Managers may determine from time to time that additional contributions are needed to enable
the Company to conduct its business. Upon making such a determination, the Managers shall
give Notice to all Members in writing at least 10 days prior to the date on which such
contribution is due. Such Notice shall set forth the amount of additional contribution needed, the
purpose for which the contribution is needed, and the date by which the Members should
contribute. Each Member shall be entitled to contribute a proportionate share of such additional
contribution. Except to the extent of a Member's unpaid Commitment, no Member shall be
obligated to make any such additional contributions. If any one or more Members do not make
their additional contribution, the other Members shall be given the opportunity to make the
contributions. Each Additional Member shall make the Capital Contribution to which such
Member has agreed, at the time or times and upon the terms to which the Managers and the
Additional Member agree.
7.3.
Enforcement of Commitments. If any Member (a Delinquent Member) fails to perform
the Delinquent Member's Commitment, the Managers shall give the Delinquent Member a
Notice of the failure to meet the Commitment. If the Delinquent Member fails to perform the
Commitment (including any costs associated with the failure to demand compliance with the
Commitment and interest on such obligation at the Default Interest Rate) within ______
(number) of business days of the giving of Notice, the Managers may take such action,
including but not limited to enforcing the Commitment in the court of appropriate jurisdiction in
the state in which the Principal Office is located or the state of the Delinquent Member's address
as reflected in this Company Agreement. Each Member agrees to the jurisdiction of such courts
but only for the enforcement of Commitments. The Managers may elect to allow the other
Members to contribute the amount of the Commitment Pro Rata in Proportion to Units, with
those Members who contribute (Contributing Members) to contribute additional amounts equal
to any amount of the Commitment not contributed. The Contributing Members shall be entitled
to treat the amounts contributed pursuant to this Section as a loan from the Contributing
Members bearing interest at the Default Interest Rate secured by the Delinquent Member's
interest in the Company. Until they are fully repaid the Contributing Members shall be entitled to
all Distributions to which the Delinquent Member would have been entitled. Notwithstanding the
foregoing, no Commitment or other obligation to make an additional contribution may be
enforced by a creditor of the Company or other Person other than the Company unless the
Member expressly consents to such enforcement or to the assignment of the obligation to such
creditor.
7.4.
Maintenance of Capital Accounts. The Company shall establish and maintain a
Capital Account for each Member. Each Member's Capital Account shall be increased by:
A.
The amount of any Money actually contributed by the Member to the capital of
the Company;
B.
The fair market value of any Property (other than Money) contributed, as
determined by the Company and the Contributing Member at arm's length at the time of
contribution (net of liabilities assumed by the Company or subject to which the company
takes such Property, within the meaning of 26 U.S.C.A. § 752 of the Code); and
C.
The Member's share of Net Profits and of any separately allocated items of
income or gain except adjustments of the Code (including income and gain exempt from
tax and adjustments to income and gain as a result of a Revaluation or in connection
with Property Contributed in the manner described in 26 C.F.R. § 1.704-1(b)(2)(iv)(g) of
the Regulations to reflect the difference between the difference between the Book Value
and the adjusted basis of Company Property, but excluding allocations of income and
gain described in 26 C.F.R. § 1.704-1(b)(4)(i) of the Regulations under which such
difference is reflected for tax purposes). Each Member's Capital Account shall be
decreased by:
1.
The amount of any Money Distributed to the Member;
2.
The fair market value of any Company Property Distributed to the
Member, as determined by the Company and the Member receiving the
Distribution at arm's length at the time of Distribution (net of liabilities of the
Company assumed by the Member or subject to which the Member takes such
Property within the meaning of 26 U.S.C.A. § 752 of the Code); and
3.
The Member's share of Net Losses and of any separately allocated items
of Net Loss (including adjustments for depreciation, depletion, amortization, and
loss as a result of a Revaluation or in connection with Property Contributed in the
manner described in 26 C.F.R. § 1.704-1(b)(2)(iv)(g) of Regulations to reflect the
difference between the difference between the Book Value and the adjusted
basis of Company Property, but excluding allocations of depreciation, depletion,
amortization, and loss described in 26 C.F.R. § 1.704-1(b)(4)(i) of the
Regulations under which such difference is reflected for tax purposes).
7.5.
Distribution of Company Property. If the Company at any time Distributes any of the
Company Property (other than Money) in-kind to any Member, the Capital Account of each
Member shall be adjusted to account for that Member's allocable share (as determined under
Section 8.2) of the Net Profits or Net Losses that would have been realized by the Company
had it sold the Company Property that was Distributed at their respective fair market values
immediately prior to their distribution.
7.6.
Sale or Exchange of Units. In the event of a Transfer of some or all of a Member's
Units, the Capital Account of the Member Transferring Units shall become the Capital Account
of the Transferee, to the extent it relates to the portion of the Member's Units Transferred.
7.7.
Revaluation of Company Property. The Capital Accounts of the Members shall be
increased or decreased to reflect a revaluation of Company Property (including intangible
assets such as goodwill) on the Company's books in connection with a Revaluation Event. Upon
such Revaluation: (i) the Book Value of Company Property shall be adjusted based on the fair
market value of Company Property (taking 26 U.S.C.A. § 7701(g) of the Code into account) on
the Revaluation Date; and (ii) the unrealized income, gain, loss, or deduction inherent in such
Company Property (that has not been reflected in the Capital Accounts previously) would be
allocated among the Members as if there were a taxable Disposition of such Company property
for such fair market value on the Revaluation Date.
7.8.
Compliance with 26 U.S.C.A. § 704(b) of the Code. The provisions of this Article VII
as they relate to the maintenance of Capital Accounts are intended, and shall be
construed, and, if necessary, modified to cause the allocations of Net Profits, Net
Losses, income, gain and credit pursuant to Article VIII to have substantial economic
effect under the Regulations promulgated under 26 U.S.C.A. § 704(b) of the Code, in
light of the Distributions made pursuant to this Agreement and the Contributions made
pursuant to this Agreement.
7.9.
Notwithstanding anything in this agreement to the contrary, this Company Agreement
shall not be construed as creating a deficit restoration obligation or otherwise personally
obligate any Member to make a Contribution in excess of the Initial Contribution,
Additional Contribution, and Commitment of the Member.
Article VIII.
Allocations and Distributions
8.1.
Allocations of Net Profits and Net Losses from Operations. Except as may be
required by Sections 8.2, 8.3, 8.4, and 8.5, Net Profits, Net Losses, and other items of income,
gain, loss, deduction and credit shall be apportioned among the Members Pro Rata in
Proportion to Units.
8.2.
Allocations under 26 U.S.C.A. § 704(c). In accordance with 26 U.S.C.A. § 704(c) of the
Code and the Regulations promulgated under that section, income, gain, loss, and deduction
with respect to any Contribution shall, solely for tax purposes, be allocated among the
Members, so as to take into account any difference between the adjusted basis of Property and
its fair market value at the time of contribution in accordance with the “traditional” method
(subject to the ceiling rule) set forth in 26 C.F.R. § 1.704-3(b) of the Regulations.
8.3.
Company Minimum Gain Chargeback. If there is a net decrease in Company Minimum
Gain for a Taxable Year, each Member must be allocated items of income and gain for that
Taxable Year equal to that Member's share of the net decrease in Company Minimum Gain. A
Member's share of the net decrease in Company Minimum Gain is the amount of the total net
decrease multiplied by the Member's percentage share of the Company Minimum Gain at the
end of the immediately preceding Taxable Year. A Member's share of any decrease in
Company Minimum Gain resulting from a Revaluation of Company Property equals the increase
in the Member's Capital Account attributable to the Revaluation to the extent the reduction in
minimum gain is caused by the Revaluation. A Member is not subject to the Company Minimum
Gain Chargeback Requirement to the extent the Member's share of the net decrease in
Company Minimum Gain is caused by a guarantee, refinancing, or other change in the debt
instrument causing it to become partially or wholly a Recourse Liability or a Member
Nonrecourse Liability, and the Member bears the economic risk of loss (within the meaning of
26 C.F.R. § 1.752-2 of the Regulations) for the newly guaranteed, refinanced, or otherwise
changed liability.
8.4.
Member Minimum Gain Chargeback. If during a Taxable Year there is a net decrease
in Member Minimum Gain, any Member with a share of that Member Minimum Gain (“partner
nonrecourse debt minimum gain” as determined under 26 C.F.R. § 1.704-2(i)(5) of the
Regulations) as of the beginning of that Taxable Year must be allocated items of income and
gain for that Taxable Year (and, if necessary, for succeeding Taxable Years) equal to that
Member's share of the net decrease in the Company Minimum Gain. A Member's share of the
net decrease in Member Minimum Gain is determined in a manner consistent with the
provisions of 26 C.F.R. § 1.704-2(g)(2) of the Regulations. A Member is not subject to this
Member Minimum Gain Chargeback, however, to the extent the net decrease in Member
Minimum Gain arises because the liability ceases to be Member Nonrecourse Liability due to a
conversion, refinancing, or other change in the debt instrument that causes it to become
partially or wholly a Company Nonrecourse Liability. The amount that would otherwise be
subject to the Member Minimum Gain Chargeback is added to the Member's share of Company
Minimum Gain. In addition, rules consistent with those applicable to Company Minimum Gain
shall be applied to determine the shares of Member Minimum Gain and Member Minimum Gain
Chargeback to the extent provided under the Regulations issued pursuant to 26 U.S.C.A. §
704(b) of the Code.
8.5.
Qualified Income Offset. Notwithstanding any provision of this Company Agreement to
the contrary (other than Sections VIII.2 and VIII.3 above), if a deficit in a Member's Capital
Account is created or increased (taking into account any allocations, adjustments, or
Distributions described in 26 C.F.R. § 1.704-1(b)(2)(ii) (d)(4), (5), or (6) of the Regulations) in
excess of such Member's share of Company Minimum Gain and Member Minimum Gain, plus
any amount that the Member is obligated to restore to the Company, such Member will be
allocated items of income and gain (consisting of a pro rata portion of each item of partnership
income and gain for such year) in an amount and manner sufficient to offset such Offsettable
Decrease as quickly as possible. This provision is intended to comply with 26 C.F.R. § 1.7041(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently with that section.
8.6.
Interim Distributions. From time to time, the Managers shall determine in their
reasonable judgment to what extent, if any, the Company's cash on hand exceeds the current
and anticipated needs, including, but not limited to, needs for operating expenses, debt service,
acquisitions, reserves, and mandatory Distributions, if any. To the extent such excess exists, the
Managers may make Distributions Pro Rata in Proportion to Units. Such Distributions shall be in
Company Property (which may be in the form of Money, Company Property other than Money,
or partly in both, in which case Money and Company Property other than Money need not be
distributed proportionately), as determined by the Managers. All interim Distributions which,
when made, exceed the recipient Member's basis in that Member's Units shall be considered
advances or drawings against the Member's distributive share of net income. To the extent it is
determined at the end of the Taxable Year that the recipient Member has not been allocated net
income that equals or exceeds the total of such advances or drawings for such year, the
recipient Member shall be obligated to restore any such advances or drawings to the Company.
Notwithstanding the foregoing sentence, the Member will not be required to restore such
advances or drawings to the extent that, on the last day of the Taxable Year, the recipient
Member's basis in the Member's Units has increased from the time of such advance or drawing.
8.7.
Limitations on Distributions. No Distribution shall be made to the extent that the
Distribution would be in violation of the Act.
Article IX
Taxes
9.1.
Elections. The Managers may make any tax elections for the Company allowed under
the Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the
Company.
9.2.
Taxes of Taxing Jurisdictions. To the extent that the laws of any Taxing Jurisdiction
require, each Member (or such Members as may be required by the Taxing Jurisdiction) will
submit an agreement indicating that the Member will make timely income tax payments to the
Taxing Jurisdiction and that the Member accepts personal jurisdiction of the Taxing Jurisdiction
with regard to the collection of income taxes attributable to the Member's income, and interest,
and penalties assessed on such income. If the Member fails to provide such agreement, the
Company may withhold and pay over to such Taxing Jurisdiction the amount of tax, penalty and
interest determined under the laws of the Taxing Jurisdiction with respect to such income. Any
such payments with respect to the income of a Member shall be treated as a Distribution.
9.3.
The Managers may, where permitted by the rules of any Taxing Jurisdiction, file a
composite, combined or aggregate tax return reflecting the income of the Company and pay the
tax, interest and penalties of some or all of the Members on such income to the Taxing
Jurisdiction, in which case the Company shall inform the Members of the amount of such tax
interest and penalties so paid.
9.4.
Tax Matters Partner. The Managers shall designate one of their number or, if there are
no Managers eligible to act as tax matters partner, any other Member, as the tax matters
partner of the Company pursuant to 26 U.S.C.A. § 6231(a)(7) of the Code. Any Member
designated as tax matters partner shall take such action as many be necessary to cause each
other Member to become a notice partner within the meaning of 26 U.S.C.A. § 6223 of the
Code. Any Member who is designated tax matters partner may not take any action
contemplated by 26 U.S.C.A. §§ 6222 through 6232 of the Code without the consent of the
Managers.
9.5.
Cash Method of Accounting. The records of the Company shall be maintained on a
cash receipts and disbursements method of accounting.
Article X
Units
10.1. Certification of Units. The Company's Units may, at the option of the Manager, be
represented by certificates. If certificates representing Units are issued, such certificates will
bear a legend indicating the restrictions on transferability set forth in this Company Agreement,
including the following legend or one substantially similar to it:
10.2 The securities represented by this certificate have not been registered under the
Securities Act of 1933 (the 'Act' or any applicable state securities laws ('State Acts')) and are
restricted securities as that term is defined in Rule144 under the Act. The securities may not be
offered for sale, sold, or otherwise transferred except pursuant to an effective registration
statement or qualification under the Act and applicable State Acts or pursuant to an exemption
from registration under the Act and applicable State Acts, the availability of which is to be
established to the satisfaction of the Company.
Article XI
Transfer of Units
11.1. Permitted Transfer. A Member may Transfer some or all of the Member's Units to a
Permitted Transferee.
11.2.
Right of First Refusal in Case of Sales.
A.
A Selling Member which desires to sell all or any portion of its Units to a third
party purchaser [other than a Member/including a Member] shall obtain from such third
party purchaser a bona fide written offer to purchase such Units, stating the terms and
conditions upon which the purchase is to be made and the consideration offered. The
Selling Member shall give written notification to the Remaining Members, by certified
mail or personal delivery, of its intention to so transfer such interest, furnishing to the
Remaining Members a copy of the written offer to purchase such interest.
B.
The Remaining Members, and each of them, shall, on a basis Pro Rata in
Proportion to Units or on a basis Pro Rata in Proportion to Units of those Remaining
Members exercising their right of first refusal, have the right to exercise a right of first
refusal to purchase all (but not less than all) of the Units proposed to be sold by the
Selling Member upon the same terms and conditions as stated in the above mentioned
written offer to purchase by giving written notification to the Selling Member, by certified
mail or personal delivery, of their intention to do so within ______ (number of days)
days after receiving written notice from the Selling Member. The failure of all the
Remaining Members (or any one or more of them) to so notify the Selling Member of
their desire to exercise this right of first refusal within the ______ (number)-day period
shall result in the termination of the right of first refusal and the Selling Member shall be
entitled to consummate the sale of its interest in the Company, or such portion of its
interest, if any, with respect to which the right of first refusal has not been exercised, to
such third party purchaser.
C.
If the Remaining Members (or any one or more of the Remaining Members) give
written notice to the Selling Member of their desire to exercise this right of first refusal
and to purchase all of the Selling Member's Unit which the Selling Member desires to
sell upon the same terms and conditions as are stated in the written offer to purchase,
the Remaining Members shall have the right to designate the time, date and place of
closing, provided that the date of closing shall be within _____ (number) days after
receipt of written notification from the Selling Member of the third party offer to purchase.
11.3. Limitations on Sale or Permitted Transfers. No Unit shall be Transferred by sale or
Permitted Transfer:
A.
If such Transfer, alone or when combined with other transactions, would result in
a termination of the Company within the meaning of 26 U.S.C.A. § 708 of the Code;
B.
Without an opinion of counsel satisfactory to the Managers that such assignment
is subject to an effective registration under, or exempt from the registration requirements
of the applicable state and federal securities laws;
C.
Unless and until the Company receives from the assignee the information and
agreements that the Managers may reasonably require, including but not limited to any
taxpayer identification number and any agreement that may be required by any Taxing
Jurisdiction.
11.4. Dispositions Other Than Sale or Permitted Transfer. In the event of any Disposition
of a Unit other than a Sale Disposition, the transferee of the Interest shall notify the Company of
the Disposition in writing. Upon a Disposition of a Unit other than a Voluntary Disposition, the
Company shall have the right, but not the obligation, to redeem the Unit so Disposed. To
exercise this right to redeem the interest, the Company shall notify the Transferee of the Unit,
within ______ (number) days from the date on which the Company receives the notice of
Disposition from the transferee, that the Company intends to redeem the interest and to give the
transferee notice of the Company's estimate of the fair market value of the Unit to be redeemed
taking into consideration any minority or marketability discount applicable to the Unit. If the
transferee does not agree with the Company's estimate of the fair market value of the Unit, the
Unit Owner may request binding arbitration with respect to the value of the Unit (but no other
matters). The arbitration shall be governed by the rules of the American Arbitration Association
except that the transferee shall bear all costs of the arbitration including both parties' appraisal
fees and attorney's fees unless the value determined by the arbitration exceeds the Company's
estimate of the value by more than ______%.
11.5. Voluntary Transfers in Compliance With This Article Void. Any attempted Voluntary
Transfer of a Unit, or any part of a Unit, that is not in compliance with this Article Eleven shall be
null and void ab initio.
11.6. Admission of Transferee. Any sale or gift of a Unit or admission of a Member in
compliance with this Article shall be deemed effective as of the last day of the calendar month in
which the Remaining Members' consent to such sale, gift or admission was given, or, if no such
consent was required, then on such date that the donee or successor in interest complies with
this Article. The transferring Member agrees, upon request of the remaining Members, to
execute such certificates or other documents and perform such other acts as may be
reasonably requested by the remaining Members from time to time in connection with such sale,
transfer, assignment, or substitution. The transferring Member indemnifies the Company and
the other Members against any and all loss, damage, or expense (including, but not limited to,
tax liabilities or loss of tax benefits) arising directly or indirectly as a result of any transfer or
purported transfer in violation of this Article.
Article XII
Dissolution and Winding Up
12.1. Dissolution. The Company shall be dissolved and its affairs wound up, upon the
consent of Members Owning a Majority in Interest.
12.2. Effect of Dissolution. Upon dissolution, the Company shall cease carrying on (as
distinguished from the winding up of) the Company business, but dissolution by itself will not
terminate the Company, which shall continue until the winding up of the affairs of the Company
is completed and the certificate of dissolution has been issued by the Secretary of State.
12.3.
Distribution of Company Property on Dissolution. Upon the winding up of the
Company, the Company Property shall be Distributed:
A.
To creditors, including Members who are creditors, to the extent permitted by
law, in satisfaction of Company Liabilities;
B.
To Members in accordance with positive Capital Account balances taking into
account all Capital Account adjustments for the Company's taxable year in which the
liquidation occurs. Liquidation proceeds shall be paid within _____ (number) days of the
end of the Company's taxable year or, if later, within ______ (number) days after the
date of liquidation. Such Distributions may be in the form of Money, Company Property
other than Money, or partly in both (in which case Money and Company Property other
than Money need not be distributed proportionately) as determined by the Managers.
12.4. Winding Up and Certificate of Dissolution. The winding up of the Company shall be
completed when all debts, liabilities, and obligations of the Company have been paid and
discharged or reasonably adequate provision for the same has been made, and all of the
remaining Company Property has been Distributed. Upon the completion of winding up of the
Company, a certificate of dissolution shall be delivered to the Secretary of State for filing. The
certificate of dissolution shall set forth the information required by the Act.
Article XIII.
Amendments
13.1. Company Agreement May Be Modified. This Company Agreement may be modified
as provided in this Article XIII (as the same may be amended from time to time). No Member or
Manager shall have any vested rights in this Company Agreement which may not be modified
through an amendment to this Company Agreement.
13.2. Amendment or Modification of Company Agreement. This Company Agreement may
be amended or modified from time to time only in a written instrument.
Article XIV.
Miscellaneous Provisions
14.1. Entire Agreement. This Company Agreement represents the entire agreement among
all the Members and between the Members and the Company.
14.2. No Partnership Intended for Nontax Purposes. The Members have formed the
Company under the Act, and do not intend to form a partnership under either the Louisiana
Uniform Partnership Act nor the Louisiana Uniform Limited Partnership Act. The Members do
not intend to be partners one to another, or partners as to any third party. To the extent any
Member, by word or action, represents to another person that any other Member is a partner or
that the Company is a partnership, the Member making such wrongful representation shall be
liable to any other Member who incurs personal liability by reason of such wrongful
representation.
14.3. Rights of Creditors and Third Parties under Company Agreement. This Company
Agreement is entered into among the Company and the Members for the exclusive benefit of
the Company, its Members, and their successors and assignees. This Company Agreement is
expressly not intended for the benefit of any creditor of the Company or any other Person.
Except and only to the extent provided by applicable statute, no such creditor or third party shall
have any rights under this Company Agreement, Admission Agreement or any agreement
between the Company and any Member with respect to any Capital Contribution or otherwise.
14.4. Representations and Warranties of Members. Each Member by accepting ownership
of Units represents and warrants to and acknowledges with the Company that:
A.
Such Member has such knowledge and experience in financial and business
matters and is capable of evaluating the merits and risks of an investment in the
Company and making an informed investment decision with respect to the investment;
B.
Such Member is able to bear the economic and financial risk of an investment in
the Company for an indefinite period of time;
C.
Such Member is acquiring interests in the Company for investment only and not
with a view to, or for resale in connection with, any distribution to the public or public
offering;
D.
The interests in the Company have not been registered under the securities laws
of any jurisdiction and cannot be disposed of unless they are subsequently registered or
qualified under applicable securities laws and the provisions of this Company Agreement
have been
