LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF By and Between CURATOR LLC, and as Investor i
TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS... 1 1.1 Definitions... 1 1.2 Formation; Effect; Release of Funds from Escrow Account... 6 1.3 Name... 7 1.4 Principal Office; Registered Agent and Office... 7 1.5 Purposes... 7 1.6 Powers of the Company... 7 1.7 Member s Interest... 8 1.8 Duration... 8 ARTICLE 2 MANAGEMENT... 8 2.1 Meetings of Members... 8 2.2 Management... 9 2.3 Limitations on Personal Liability... 10 2.4 Engaging in Other Activities; Non-Exclusive Duty to the Company... 10 2.5 Tax Matters... 11 2.6 Indemnification... 11 2.7 Duties of the Members... 12 2.8 Business Plan... 12 ARTICLE 3 CAPITAL; PERCENTAGE INTERESTS; INCOME AND LOSSES; DISTRIBUTIONS... 12 3.1 Initial Capital Contributions; Additional Capital Contribution... 12 3.2 Capital Accounts... 13 3.3 Allocations of Net Income and Net Loss... 15 3.4 Limitation on Net Loss Allocations... 15 3.5 Tax Withholding... 16 3.6 Distributions... 16 3.7 Regulatory Allocations... 17 3.8 Determination of Certain Matters... 18 3.9 No Interest on Capital... 18 3.10 Withdrawals by Members... 19 3.11 Fair Market Value Determinations... 19 ARTICLE 4 DISSOLUTION... 19 4.1 Grounds... 19 4.2 No Right to Retire, etc. or Cause Dissolution... 19 4.3 Dissolution... 19 4.4 Deferral of Distribution... 20 4.5 No Restoration Obligations... 20 4.6 No Right to Partition... 20 4.7 Cancellation of Certificate... 20 ii
ARTICLE 5 RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS... 20 5.1 Restrictions on Transfer... 20 5.2 Additional Restrictions on Transfers and Admissions... 21 5.3 Right of First Refusal... 21 5.4 Drag-Along Right... 23 ARTICLE 6 CERTAIN OTHER AGREEMENTS... 23 6.1 Conflicts of Interest... 23 6.2 Company Obligations... 24 ARTICLE 7 BOOKS AND RECORDS; ACCOUNTING... 24 7.1 Books and Records... 24 7.2 Accounting Method... 24 7.3 Audit/Schedules K-1... 24 7.4 Fiscal Year... 24 ARTICLE 8 MISCELLANEOUS... 24 8.1 Confidentiality... 24 8.2 Amendments... 25 8.3 Power of Attorney... 25 8.4 Specific Performance... 26 8.5 Entire Agreement... 26 8.6 Notices... 26 8.7 Certain Interpretive Matters... 27 8.8 Benefits of Agreement... 27 8.9 Waivers... 27 8.10 Severability... 27 8.11 Cooperation... 27 8.12 Governing Law... 27 8.13 Headings... 28 8.14 Execution... 28 iii
LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF, a Delaware limited liability company (the Company ) (as amended or restated from time to time, this Agreement ), dated as of (the Effective Date ), is entered into by and between CURATOR LLC, a Delaware limited liability company ( Curator ), and, an individual (the Investor ). W I T N E S S E T H: WHEREAS, the Company was formed in the State of Delaware on September 12, 2014 by the filing of the Certificate (as defined below) pursuant to the Act (as defined below); and WHEREAS, the parties hereto wish to address matters relating to the management and operation of the Company, and to set forth the respective rights and obligations of the Members (as defined below) with respect thereto. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 Definitions. For purposes of this Agreement: The term Act means the Delaware Limited Liability Company Act, as the same may be amended from time to time. The term Affiliate of any Person means any individual, partnership, corporation, trust or other entity or association, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such Person. The term Agreement is defined in the Preamble. The term Authorized Agent is defined in Section 2.2(b). The term Bona Fide Offer is defined in Section 5.3(a). The term Book Value means with respect to any asset of the Company, the adjusted basis of such asset for federal income tax purposes; provided, however, that (a) if any asset is contributed to the Company, the initial Book Value of such asset shall equal its fair market value on the date of contribution (as agreed to by all of the Members); (b) the Book Value of all
Company assets may be adjusted in the discretion of the Managers to equal their respective gross fair market values pursuant to Section 3.2(b); (c) any adjustments to the adjusted basis of any asset of the Company pursuant to Section 734 or Section 743 of the Code shall be taken into account in determining such asset s Book Value in a manner consistent with Treasury Regulations Section 1.704-1(b)(2)(iv)(m); and (d) the Book Value of any Company asset distributed or deemed distributed by the Company to any Member shall be adjusted immediately prior to such distribution to equal its fair market value as of the date of distribution, as reasonably determined by the Managers. The Book Value of all assets of the Company shall be adjusted thereafter by depreciation or amortization as provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(g) and any other adjustment to the basis of such assets other than depreciation or amortization. The term Capital Account is defined in Section 3.2. The term Capital Contribution of a Member means the sum of the amounts that such Member shall have contributed (or shall be deemed to have contributed) to the capital of the Company as provided in Section 3.1, and shall include such Member s initial Capital Contribution and any additional Capital Contributions made by such Member. The term Certificate means the Certificate of Formation of the Company filed under the Act, as the same may be amended or restated from time to time. The term Class A Member means any Member owning Class A Preferred Units. The term Class A Percentage Interest of a Class A Member means, from time to time, the ratio, expressed as a percentage, of the number of Class A Preferred Units of such Class A Member, to the aggregate number of Class A Preferred Units of all Class A Members. The Class A Percentage Interest of each Class A Member shall be set forth on Schedule A hereto, as the same may be amended from time to time by the Managers in accordance with the provisions of this Agreement. The terms Class A Preferred Units and Class A Percentage Interests mean, respectively, a Unit and a Membership Interest that has the rights, benefits and obligations specified herein with respect to Class A Percentage Interests. The term Class B Majority means the Class B Members whose then Class B Interests constitute, singly or in the aggregate, a majority of the aggregate Class B Interests at such time of all the Class B Members. The term Class B Member means any Member owning Class B Units. The term Class B Percentage Interest of a Class B Member means, from time to time, the ratio, expressed as a percentage, of the number of Class B Units of such Class B Member, to the aggregate number of Class B Units of all Class B Members. The Class B Percentage Interest of each Class B Member shall be set forth on Schedule A hereto, as the same may be amended from time to time by the Managers in accordance with the provisions of this Agreement. 2
The terms Class B Units and Class B Interests mean, respectively, a Unit and a Membership Interest that has the respective rights, benefits and obligations specified herein with respect to Class B Units. The term Code means the Internal Revenue Code of 1986, as amended and as the same may be amended or restated from time to time. The term Company is defined in the Preamble. The term Company Sale means the sale of all or substantially all of the Company s assets to any Person. The term Company Year means the fiscal year of the Company for federal income tax purposes. The term Contributing Members is defined in Section 3.1(b)(i). The term Curator is defined in the Preamble. The term Default Amount is defined in Section 3.1(b)(ii). The term Default Contribution is defined in Section 3.1(b)(ii). The term Default Points is defined in Section 3.1(b)(ii). The term Effective Date is defined in the Preamble. The term Escrow Account means the account in the name of the Investor, maintained with the Escrow Agent pursuant to the Escrow Agreement. The term Escrow Agent means [Patriot National Bank] or any successor thereto under the Escrow Agreement. The term Escrow Agreement means the Escrow Agreement, dated as of,, among the Investor, Curator and the Escrow Agent, as amended or restated from time to time. The term Exercising Members is defined in Section 5.3(b). The term Financing means debt or equity financing or refinancing by the Company resulting from the admission of new Members, or incurring secured or unsecured debt to any third party. The term Franchise Agreement means the standard form of Subway franchise agreement and other related agreements entered into or to be entered into among Subway, an officer, an employee or a member of the Operations Manager in his/her individual capacity and an individual designated by the Company (as such agreements may be amended or restated from time to time), to utilize the Subway system, trade name and related trademarks in connection with the opening and operation by the Company of one or more Restaurants. 3