EXHIBIT 3.221
TSI HIGHPOINT, LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
LIMITED LIABILITY COMPANY OPERATING AGREEMENT of TSI
HIGHPOINT, LLC, a Delaware limited liability company (the "Company"), dated
December 13, 1999, among the persons listed on Schedule A attached hereto (as
amended from time to time), as members of the Company (the "Members").
WHEREAS, the original Member desires to form and organize a
limited liability company under the Delaware Limited Liability Company Act (the
"Act"); and
WHEREAS, the original Member and such other persons who shall
hereafter become Members wish to set forth their agreement as to the management
of the business and affairs of such limited liability company;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual promises contained in this Agreement, the parties hereby agree as
follows:
ARTICLE I
FORMATION AND ORGANIZATIONAL MATTERS
1.1 Formation. The Company was organized as a Delaware limited
liability company under and pursuant to the Act on December 13, 1999, the date
of the filing of the Certificate
of Formation of the Company with the Delaware Secretary of State. The Members
hereby reaffirm the authority of Xxxx X. Xxxxx to sign and file such Certificate
of Formation on their behalf. The rights and obligations of the Members shall be
as set forth in the Act, the Certificate of Formation and this Agreement.
1.2 Name. The name of the Company is "TSI Highpoint, LLC" and
all business of the Company shall be conducted in that name, or in such other
name as the Members may hereafter from time to time select in accordance with
this Agreement and the Act.
1.3 Term. The term of the Company shall continue until the
Company is dissolved in accordance with this Agreement or the Act.
1.4 Purpose. The principal purpose of the Company is to own
and operate a health and fitness club. Notwithstanding the foregoing, the
Company may carry on any lawful business, purpose or activity permitted under
the laws of the State of Delaware, with the exception of the business of
granting policies of insurance, or assuming insurance risks or banking as
defined in Section 126 of Title 8 of the Delaware Code. The Company shall
possess and may exercise all powers necessary or convenient to the conduct and
promotion of its businesses or activities.
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1.5 Principal Office. The principal office of the Company
shall be located at such place as shall be determined from time to time by the
Members. The name and address of the registered agent upon whom process against
the Company may be served is The Corporation Trust Company, Corporation Trust
Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxx xx
Xxxxxxxx, Xxxxxx Xxxxxx of America. The Members may, in their discretion, change
the registered agent from time to time, in conformity with the provisions of the
Act.
1.6 Members. The name, address, Initial Capital Contribution
(as defined in Section 3.1) and Percentage Interest (as defined in Section 1.7)
of each of the Members are listed on Schedule A hereto. It is understood that
Schedule A shall be revised as necessary and as contemplated herein to reflect
changes in the membership of the Company that may occur from time to time in
accordance with the provisions of this Agreement. Each member that is a
corporation shall appoint an individual who shall represent such corporate
Member in all matters dealing with the Company. A corporate Member may change
its representative from time to time by written notice to the Company and the
other Members.
1.7 Percentage Interests. Each Member shall have a percentage
interest (such percentage interest, as the same shall be adjusted from time to
time as provided in this Agreement, herein referred to as "Percentage Interest")
in the Company as
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set forth opposite such Member's name in Schedule A hereto (as such Schedule
shall be revised from time to time in accordance with this Agreement).
ARTICLE II
MANAGEMENT
2.1 Management. Subject to the provisions of this Agreement,
the power to make any and all decisions regarding any actions or undertakings of
or by the Company, including, but not limited to, the making of any expenditures
or commitments, or the taking of any actions, involving the Company or its
business, shall be vested in the Members of the Company. Notwithstanding the
provisions of Section 18-407 of the Act, no one Member, unless the sole Member
of the Company, shall have the authority to delegate any rights and powers to
manage and control the business and affairs of the Company to any other person.
2.2 Officers. The Members may appoint one or more persons to
act as officers of the Company, who shall have such responsibilities and duties
with respect to the business of the Company as the Members may determine
pursuant to Section 2.6. Such officers may but need not be officers or employees
of one or more of the Members.
2.3 Execution of Documents. All instruments executed and
delivered on behalf of the Company, including, but not
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limited to, any note or other evidence of indebtedness, contract, lease
agreement, security agreement, financing statement, management agreement or
other instrument purporting to convey or encumber, in whole or in part, any or
all of the assets of the Company or any rights with respect thereto, at any time
held in its name, or any receipt or compromise or settlement agreement with
respect to the accounts receivable and claims of the Company, shall be signed by
(i) all of the Members of the Company, (ii) the Chief Executive Officer or the
President of the Company, or (iii) a person, including an officer of the
Company, expressly so authorized by the Members; without such signatures or
signature, no such instrument shall be valid, binding or enforceable against the
Company.
2.4 Meetings. The Members may meet in such manner, at such
times and places, and upon such notice, as the Members deem fit. Members may
participate in and vote at any meeting by means of conference telephone or
similar communications equipment whereby all participants can hear each other,
and such participation shall constitute presence in person at such meeting.
2.5 Proxies. At any meeting of Members, a Member may be
represented and vote by proxy executed in writing by the Member or by its duly
authorized attorney-in-fact. Such proxy shall be filed with the Company before
or at the time of the meeting.
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2.6 Voting. Except as otherwise expressly provided in this
Agreement, the Members shall have the exclusive authority to manage the
operations and affairs of the Company and shall have all authority, rights and
powers conferred by law and those required or appropriate for the management of
the Company's business. Except as otherwise expressly provided in this
Agreement, any action or decision approved by Members holding at least a
majority of the Percentage Interests in the Company shall be the action or
decision of the Company.
2.7 Written Consent of Members. Any act required or permitted
to be taken at any meeting of the Members may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by
Members holding at least a majority of the Percentage Interests in the Company.
Any such consent may be signed in counterparts.
2.8 Seal. The seal of the Company shall be circular in form
and shall contain the name of the Company, the year of its formation and the
words "LIMITED LIABILITY COMPANY SEAL, DELAWARE". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
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ARTICLE III
CAPITAL CONTRIBUTION AND CAPITAL ACCOUNTS
3.1 Initial Capital Contributions. Each Member shall make the
initial capital contribution described for that Member on Schedule A (the
"Initial Capital Contribution") at the time such Member becomes a Member
hereunder and in cash or (in the case of new Members admitted pursuant to
Section 7.4) on such other terms as shall be specified by the existing Members.
No Member shall have the right to withdraw or be repaid any capital contribution
except as provided in this Agreement.
3.2 Additional Capital Contributions; Non-Cash Contributions.
Subject to Sections 8.3 and 8.4, no Member shall be required to make additional
capital contributions to the Company. With the consent of all of the Members, a
Member may contribute additional capital to the Company, and if any such
contribution consists of property, the same shall be recorded on the books of
the Company at the fair market value thereof. The Company may obtain such
capital contributions from third parties seeking to be admitted as additional
Members in accordance with Section 7.4 after the Members have agreed to the
valuation of such contribution pursuant to Section 2.6 and approved such
additional Member in accordance with Section 7.4.
3.3 Capital Accounts. A capital account ("Capital Account")
shall be established for each Member. All Capital
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Accounts shall be determined and maintained throughout the full term of this
Agreement in accordance with the capital accounting rules of applicable Treasury
Regulations issued under Section 704(b) of the Internal Revenue Code of 1986, as
amended (the "Code"). Accordingly, the Capital Account of each Member shall be
equal to the sum of the capital contributions made by that Member (i) increased
by the amount of all net income and gain allocated to that Member pursuant to
Section 5.1, and (ii) decreased by the amount of all losses and deductions
allocated to that Member pursuant to Section 5.2 and amounts paid or distributed
to that Member pursuant to Section 6.2 or Article 8. No interest shall be paid
or credited on any Member's Capital Account.
3.4 No Obligation to Restore Deficit Balance. Except as
required by law or by Section 8.3 or 8.4, no Member shall be required to restore
any deficit balance in its Capital Account.
ARTICLE IV
CERTAIN BUSINESS MATTERS AND POLICIES
4.1 Duties of Officers; Compensation. The Members contemplate
that the officers of the Company shall handle the day-to-day affairs of the
Company. As compensation for the services to be performed by the officers of the
Company, the Company shall pay the officers such compensation as shall be
determined by the Members.
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4.2 Expenses. The Company shall reimburse the officers for any
out-of-pocket expenses reasonably incurred by the officers in the performance of
their duties to the Company upon receipt of appropriate vouchers therefor and in
accordance with the Company's current practices or as such practices may be
changed from time to time by the Members.
ARTICLE V
ALLOCATION OF NET INCOME AND LOSS; OTHER TAX MATTERS
5.1 Allocation of Net Income. Net income for each taxable year
of the Company shall be allocated to the Members in proportion to their
Percentage Interests.
5.2 Allocation of Losses. Net losses for each taxable year of
the Company shall be allocated to the Members in proportion to their respective
positive Capital Account balances as of the end of such taxable year until such
Capital Accounts have returned to zero, and thereafter equally among the
Members.
5.3 Fiscal Year. All books and records of the Company shall be
kept on the basis of an annual accounting period ending December 31 of each
year, except for the final accounting period, which shall end on the dissolution
or termination of the Company. The Company's fiscal and taxable year shall
correspond to the
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annual accounting period described in the preceding sentence, whether the same
shall consist of twelve months or less.
5.4 Tax Allocations and Elections. Except as otherwise
provided in this Agreement, all items of income, gain, loss, deduction and any
other allocations not otherwise provided for shall be allocated among the
Members for tax purposes in the same proportions as they are allocated net
income or loss or items thereof pursuant to Sections 5.1 and 5.2 for the taxable
year or period in question. All elections required or permitted to be made by
the Company under the Code shall be made by the Members. It is the intention of
the Company to be treated as a partnership for tax purposes and the Company
shall not elect to be excluded from the application of the provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code or corresponding provisions
of state or local law.
5.5 Tax Matters Partner. The Member designated as such on
Schedule A shall be the tax matters partner (the "Tax Matters Partner") of the
Company pursuant to Section 6231(a)(7) of the Code. Such Member shall not resign
as the Tax Matters Partner unless, on the effective date of such resignation,
the Company has designated another Member as Tax Matters Partner and such Member
has given the consent in writing to its appointment as Tax Matters Partner.
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ARTICLE VI
DISTRIBUTIONS
6.1 Definition of Distributable Cash. The term "Distributable
Cash" shall mean, at any time, the excess, if any, of cash on hand over the
amount of cash reasonably necessary for the conduct of the Company's business,
as determined by the Members.
6.2 Distribution of Distributable Cash. In the discretion of
the Members, Distributable Cash may be distributed to the Members in proportion
to the respective amounts of net income previously allocated to each pursuant to
the provisions of Section 5.1 but not yet distributed to such Member, starting
with the earliest year for which there is undistributed net income.
6.3 Distribution of Cash to Pay Tax Liabilities. The Members
shall cause the Company to distribute each year to the Members pursuant to
Section 6.2 an amount of cash on hand, whether or not such cash constitutes
Distributable Cash, at least equal to the amount of United States federal taxes
that the Members will have to pay that year in respect of the net income of the
Company allocated to the Members for the immediately preceding year.
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ARTICLE VII
TRANSFER OF INTERESTS; NEW MEMBERS
7.1 Restrictions on Transfers. Except as otherwise provided in
this Agreement, no Member shall sell, assign, pledge, encumber or otherwise
transfer its interest or any portion thereof or interest therein, or withdraw
from the Company. Any such transfer or attempt to withdraw other than as
permitted under this Agreement shall be void ab initio. Upon such transfer by a
Member of all of its interest in a manner permitted or required pursuant to the
provisions of this Agreement, (i) such Member shall be deemed to have withdrawn
as a Member and shall have no further rights as a Member hereunder, and (ii)
Schedule A shall be amended to appropriately reflect the changes to the
membership, Percentage Interests, and Capital Contributions caused by such
transfer.
7.2 Approval for Transfer. If any Member wishes to transfer
its interest or any portion thereof (a "Transferring Member") to a Non-Member,
it shall first obtain the written approval from all the Members (other than the
transferring Member), which approval may be withheld for any reason or no
reason, in the sole discretion of such Member or Members. The Members agree that
the restrictions on transferring and withdrawal contained herein are fair and
reasonable. If such written approval is not obtained, then any such transfer
shall be void ab initio. In the event that such written approval shall be
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obtained from the remaining Member or Members, however, Schedule A shall be
amended to appropriately reflect the changes to the membership, Percentage
Interests, and Capital Contributions caused by such transfer.
7.3 Transfer Among Members. Any Member may transfer all or any
portion of such Member's interest to another Member(s), and no Member shall have
any preference, first refusal or other right to acquire such interest. Upon any
transfer pursuant to this Section, the Percentage Interests and any equity of
the transferor Member and the transferee Member(s) shall be adjusted, and
Schedule A shall be amended accordingly. The transferee Member(s) shall assume
and be obligated to discharge all of the obligations of the transferor Member
attributable to the transferred interest.
7.4 Admission of New Members. One or more additional members
of the Company may be admitted to the Company with the consent of all of the
Members. No new Member may be admitted unless such Member shall have executed an
instrument containing (i) an amended Schedule A to this Agreement reflecting
such new Member, such new Member's Initial Capital Contribution to the Company,
such new Member's Percentage Interest, and the Percentage Interests of the other
Members (adjusted to take into account such new Member's Percentage Interest)
and (ii) such new Member's agreement to be bound by the terms and conditions
hereof.
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ARTICLE VIII
DISSOLUTION; WITHDRAWAL
8.1 Events of Dissolution. The Company shall be dissolved upon
the earliest to occur of the following:
(a) the death, bankruptcy, incapacity or dissolution of any
Member, or the occurrence of any other event that terminates the
continued membership of any Member in the Company under the Act (but
excluding a termination of membership resulting from a permitted
transfer of a Member's entire interest pursuant to this Agreement),
unless the business of the Company is continued by the vote or written
consent of the remaining Members holding at least a majority of the
Percentage Interests within ninety (90) days following the occurrence
of any such event;
(b) the Members unanimously elect to dissolve the Company; or
(c) except as otherwise herein provided, the occurrence of any
other event causing the dissolution of the Company under the Act.
8.2 Procedure of Dissolution. (a) Upon dissolution of the
Company, the Members or such other person or persons as are designated by them
shall proceed to wind up the business and
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affairs of the Company in accordance with the terms of this Agreement and the
requirements of the Act. Upon the winding up of the Company, its assets shall be
distributed as follows:
(i) first, to creditors of the Company, including Members who
are creditors, until all of the Company's debts and liabilities are
paid and discharged (or provision is made for payment thereof); and
(ii) thereafter, to the Members, in proportion to their
positive Capital Account balances as of the date of such distribution,
after giving effect to all contributions, distributions, and
allocations for all periods.
(b) Such distributions shall be made by such times as may be
required under applicable provisions of the Code and the regulations issued
thereunder. A reasonable amount of time shall be allowed for the period of
winding up in light of prevailing market conditions and so as to avoid undue
loss in connection with any sale of Company assets. This Agreement shall remain
in full force and effect during the period of winding up.
8.3 Deficit Capital Account. Upon the dissolution of the
Company, any Member having a deficit balance in its Capital Account shall
contribute to the Company the amount of cash or other assets (at their fair
market value) necessary to bring the balance of such Member's Capital Account to
zero after taking
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into account all allocations required by the regulations under Section 704(b) of
the Code and all distributions of cash and other assets.
8.4 Withdrawal. If the Members permit a Member to withdraw
from the Company and the remaining Members elect pursuant to Section 8.1 of this
Agreement that the Company not be dissolved, the withdrawing Member shall be
entitled to receive from the Company, in full satisfaction of the withdrawing
Member's interest in the Company, an amount equal to such Member's Capital
Account on the date of withdrawal. If such Member has a deficit balance in its
Capital Account on the date of withdrawal, such Member shall contribute to the
Company an amount to bring such balance to zero. The Company shall make such
payment, or such Member shall make such contribution, before the later of (i)
the end of the tax year of the Company in which such withdrawal occurs and (ii)
the date ninety (90) days after the date of such withdrawal.
ARTICLE IX
LIMITATION OF LIABILITY; INDEMNITY
9.1 Liability of Members. The Members shall not have any
liability for the obligations or liabilities of the Company except to the extent
provided in the Act.
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9.2 Exculpation of Members; Officers. A Member and any officer
of the Company appointed by the Members shall not be liable for any breach of
duty in such capacity, unless a judgment or other final adjudication adverse to
such Member establishes that such Member's acts or omissions were in bad faith
or involved intentional misconduct or a knowing violation of law or that such
Member personally gained in fact a financial profit or other advantage to which
such Member was not legally entitled.
9.3 Indemnification. The Company shall indemnify and hold
harmless each Member and its respective directors, shareholders, officers,
employees and agents, and the officers, employees and agents of the Company
(each an "Indemnitee"), against all costs, liabilities, claims, demands, damages
and expenses, including reasonable attorneys' fees (collectively "Indemnifiable
Losses") paid or incurred by any such Indemnitee in connection with the conduct
of the business of the Company; provided, that, such indemnification shall not
apply, in the case of any Indemnitee, for any Indemnifiable Losses incurred by
reason of conduct by such Indemnitee that constitutes willful misfeasance,
fraud, gross negligence or reckless disregard of duty.
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ARTICLE X
GENERAL
10.1 Amendments. This Agreement may be amended or modified
from time to time only by a written instrument executed by all of the Members.
10.2 Governing Law. This Agreement shall be governed by the
laws of the State of Delaware.
10.3 Entire Agreement. This Agreement embodies the entire
understanding between the Members concerning the Company and their relationship
as Members and supersedes any prior negotiations, understandings, or agreements
between them with respect to such subject matter.
10.4 Notices. Any notice hereunder shall be in writing and
will be considered effective upon actual receipt (if sent by personal delivery
or recognized overnight courier or fax) or five (5) business days after being
sent (if sent by certified or registered mail) if sent to the address for such
Member specified in this Agreement, or such other address as such Member may
have given written notice thereof to the Company and each other Member.
10.5 Severability. If any provision of this Agreement or the
application of such provision to any person or
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circumstance shall be held invalid, the remaining provisions of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected.
10.6 Parties Bound. This Agreement shall be binding upon the
Members and their respective successors, assigns, heirs, devisees, legal
representatives, executors and administrators.
10.7 Headings. The headings in this Agreement are inserted for
convenience of reference only and are not intended to, and shall not, describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
10.8 Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be considered an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Members have executed this Agreement
as of the date first set forth above.
TSI HOLDINGS (PA), INC.
By: /s/ X. Xxxxxxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxxxxx
Title: Executive Vice President
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SCHEDULE A
NAME AND ADDRESS INITIAL CAPITAL PERCENTAGE
OF MEMBER CONTRIBUTION INTEREST
--------- ------------ --------
TSI Holdings (PA), Inc. $100 100%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
TAX MATTERS PARTNER: TSI Holdings (PA), Inc.
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