EXHIBIT 3.200
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OPERATING AGREEMENT
OF
TSI EAST 86, LLC,
A NEW YORK LIMITED LIABILITY COMPANY
Adopted as of December 18, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions............................................ 1
1.01. Definitions............................................... 1
ARTICLE II Organization of the Company............................ 2
2.01. Formation................................................. 2
2.02. Name...................................................... 2
2.03. Principal Place of Business............................... 2
2.04. Term...................................................... 3
2.05. Purposes and Powers....................................... 3
ARTICLE III Member and Member's Interest........................... 3
3.01. Name and Address of Member................................ 3
3.02. Transfer of Membership Interest........................... 3
ARTICLE IV Management............................................. 4
4.01. Management by the Member.................................. 4
4.02. Officers.................................................. 4
4.03. Liability for Debts of Company............................ 4
4.04. Liability for Breaches of Duty............................ 4
4.05. Indemnification........................................... 5
ARTICLE V Contributions, Distributions and Capital Accounts...... 5
5.01. Capital Contributions..................................... 5
5.02. Withdrawal or Reduction of Member's Contributions......... 5
5.03. Liability for Contributions............................... 5
5.04. Capital Accounts.......................................... 5
5.05. Limitation on Distributions............................... 6
ARTICLE VI Books and Records...................................... 6
6.01. Books of Accounts and Records............................. 6
6.02. Accounting Period......................................... 6
ARTICLE VII Dissolution and Termination............................ 6
7.01. Dissolution............................................... 6
7.02. Effect of Dissolution..................................... 7
7.03. Winding Up, Liquidation, and Distribution of Assets....... 7
7.04. Articles of Dissolution................................... 7
7.05. Certificate of Dissolution................................ 8
ARTICLE VIII Miscellaneous Provisions............................... 8
8.01. Application of the Act.................................... 8
8.02. Construction.............................................. 8
8.03. Headings.................................................. 8
8.04. Rights and Remedies Cumulative............................ 8
8.05. Severability.............................................. 8
8.06. Heirs, Successors and Assigns............................. 9
8.07. Creditors................................................. 9
OPERATING AGREEMENT
OF
TSI EAST 86, LLC
(A New York Limited Liability Company)
OPERATING AGREEMENT of TSI East 86, LLC, a New York limited
liability company (the "Company"), made and entered into by Town Sports
International, Inc. as the sole member of the Company (the "Member").
WHEREAS, the Member has caused to be formed a New York limited
liability company pursuant to the Act (as defined below); and
WHEREAS, the Member wishes to set forth its rights and
obligations as a member and to provide for the management of the Company and the
conduct of the business of the Company;
NOW, THEREFORE, the Member agrees as follows:
ARTICLE I
DEFINITIONS
1.01. Definitions. The following terms used in this Operating
Agreement shall have the respective meanings ascribed to such terms in this
Section 1.01 unless otherwise expressly provided herein:
(a) "Act" shall mean the New York Limited Liability Company
Law, XxXxxxxx'x Consolidated Laws of New York Annotated, 32A:34-101 et. seq., as
the same may be amended from time to time;
(b) "Articles of Organization" shall mean the Articles of
Organization of TSI East 86, LLC, as filed with the Secretary of the State of
New York, as the same may be amended from time to time;
(c) "Capital Account" shall mean the account established and
maintained pursuant to Section 5.04;
(d) "Capital Contribution" shall mean any contribution to the
capital of the Company in cash or property by a member whenever made;
(e) "Entity" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association, or any foreign trust, foreign
company or foreign business organization;
(f) "Fiscal Year" shall mean the Company's fiscal year, as
provided in Section 6.02 hereof;
(g) "Initial Capital Contribution" shall mean the initial
contribution to the capital of the Company by a member pursuant to this
Operating Agreement;
(h) "Membership Interest" shall mean the interest in the
Company of a member;
(i) "Operating Agreement" shall mean this Operating Agreement,
as it may be amended from time to time in accordance with the provisions hereof
and with the Act; and
(j) "Person" shall mean any individual or Entity, and his, her
or its heirs, executors, administrators, legal representatives, successors, and
assigns.
ARTICLE II
ORGANIZATION OF THE COMPANY
2.01. Formation. On December 18, 1998, Xxxx X. Xxxxx, acting
as the Sole Organizer, organized the Company as a New York limited liability
company pursuant to Section 203 of the Act by executing and filing the Articles
of Organization with the New York Secretary of State. The Member hereby
reaffirms the authority of Xxxx X. Xxxxx to act as the Sole Organizer and to
execute and file the Articles of Organization in such capacity on its behalf.
2.02. Name. The name of the Company is "TSI East 86, LLC" and
all business of the Company shall be conducted in that name, or in such other
name as the Member may hereafter select in accordance with this Agreement and
the Act.
2.03. Principal Place of Business. The principal place of
business of the Company within the State of New York shall be 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company may locate its place of business
and registered office (if any) at any other place or places as the Member may
from time to time deem advisable.
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2.04. Term. The term of the Company shall commence upon the
date of filing of Articles of Organization with the Secretary of State of New
York, and shall continue in full force and effect until the Company is dissolved
in accordance with either the provisions of this Operating Agreement or the Act.
2.05. Purposes and Powers. 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 Act and any other laws of the State of New York. The Company
shall possess and may exercise all powers necessary or convenient to the conduct
and promotion of its business or activities.
ARTICLE III
MEMBER AND MEMBER'S INTEREST
3.01. Name and Address of Member. The name, address, Initial
Capital Contribution and Membership Interest of the Member are as follows:
Initial Capital Membership
Name and Address Contribution Interest
---------------- ------------ --------
Town Sports International, Inc. $ 100.00 100%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
3.02. Transfer of Membership Interest.
(a) Sale or Assignment. The Member may sell, assign, pledge,
hypothecate, transfer, exchange or otherwise transfer for consideration
(collectively, "Transfer") its Membership Interest in whole or in part, and such
Transfer shall not effect a dissolution of the Company. The transferee of any
part of the Membership Interest of the Member (the "Transferee") shall be
entitled to receive, to the extent transferred, the distributions and
allocations of profits and losses to which the Member would be entitled. Unless
and until any Transferee is made a member of the Company, however, such
Transferee shall not be entitled to participate in the management and affairs of
the Company or exercise any of the rights or powers of a member. Upon the
transfer of all of its Membership Interest, the Member shall cease to be a
member of the Company and to have the power to exercise any rights or powers of
a member as of the effective date of such transfer.
(b) Pledges. The pledge of, or the granting of a security
interest, lien or other encumbrance in or against, any or all of the Membership
Interest of the Member shall not cause
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the Member to cease to be a member or to cease to have the power to exercise any
rights or powers of a member.
ARTICLE IV
MANAGEMENT
4.01. Management by the Member. The management of the
property, business and affairs of the Company shall be vested in the Member, who
shall have full and complete authority, power, and discretion to (i) manage and
control the affairs and other acts or activities of the Company's business, (ii)
perform any and all other acts customary or incident to such management, and
(iii) take such other actions as are authorized by this Operating Agreement and
the Act.
4.02. Officers. Notwithstanding Section 4.01, the Member may,
in its discretion and from time to time, appoint one or more Persons to act as
officers of the Company for the purposes of carrying out the day-to-day
operations of the Company. Such officer or officers shall have the specific
powers, responsibilities, duties and authority as may be prescribed by the
Member. Any officer may, but need not be, an officer or employee of the Member.
4.03. Liability for Debts of Company. (a) Except as otherwise
provided herein, neither the Member nor any employee or agent of the Company
shall be personally liable for the debts, obligations or liabilities of the
Company or each other, whether arising in tort, contract or otherwise, solely by
reason of being such member, employee or agent.
(b) Nothing in Section 4.03(a) shall be interpreted to limit
the ability of the Member to (i) lend money to or borrow money from the Company,
(ii) act as a guarantor or surety for the Company, (iii) provide collateral for
the obligations of the Company, or (iv) transact other business with the
Company.
4.04. Liability for Breaches of Duty. The Member shall not be
liable for damages resulting from any breach of duty in its capacity as a member
or in connection with its management of the Company unless:
(a) a judgment or other final adjudication adverse to the
Member establishes that its acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that it gained in fact a
financial profit or other advantage to which it was not legally entitled or
that, with respect to a distribution the subject of Section 5.08(a) of the
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Act, its acts were not performed in accordance with Section 4.09 of the Act; or
(b) such breach of duty occurred prior to the adoption of this
Operating Agreement.
4.05. Indemnification. To the maximum extent permitted under
the Act, the Company shall indemnify the Member and the employees and agents of
the Company from and against any and all claims and demands arising from any
acts or omissions or alleged acts or omissions by such member, employees or
agents in connection with the affairs of the Company and shall make advances for
expenses with respect thereto.
ARTICLE V
CONTRIBUTIONS, DISTRIBUTIONS AND CAPITAL ACCOUNTS
5.01. Capital Contributions. Simultaneously with the execution
of this Operating Agreement, the Member shall have conveyed to the Company the
amount set forth opposite its name in Section 3.01 as its Initial Capital
Contribution. The Member may, if it so desires, make additional Capital
Contributions from time to time. In such event, the Capital Account of the
Member shall be adjusted in accordance with Section 5.04 to reflect any such
additional Capital Contributions. The Member shall be entitled to the return of
its Capital Contributions only as specifically provided for in this Operating
Agreement and as permitted under the Act. The Member shall not be entitled to
interest on its Capital Contributions unless specifically provided in this
Operating Agreement and as permitted under the Act.
5.02. Withdrawal or Reduction of Member's Contributions. The
Member shall not receive out of the Company's property any part of its Capital
Contributions until all liabilities of the Company (except liabilities to such
Member on account of his or her Capital Contributions) have been paid.
5.03. Liability for Contributions. The Member shall be
obligated to the Company to perform any promise to contribute cash or property,
or to perform services, that are otherwise enforceable in accordance with
applicable law. Additionally, the Member shall be liable to the Company for any
distributions received by it in violation of Section 5.05.
5.04. Capital Accounts. The Company shall establish and
maintain a capital account for the Member in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv) (the "Capital Account"). The Capital
Account (i) shall reflect the Initial Capital
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Contribution of the Member, (ii) shall be increased by the amounts of any
additional Capital Contributions made by, and any income and gain allocated to,
the Member, and (iii) shall be decreased by the amounts of any distributions
made to the Member and any losses or deductions allocated to the Member.
5.05. Limitation On Distributions. No distribution shall be
declared by and paid to the Member unless, after such distribution is made, the
assets of the Company shall be in excess of all liabilities of the Company
(except liabilities to the Member on account of its Capital Contributions to the
Company).
ARTICLE VI
BOOKS AND RECORDS
6.01. Books of Accounts and Records. Proper and complete
records and books of account shall be kept or shall be caused to be kept by the
Company in which shall be entered fully and accurately all transactions and
other matters relating to the Company's business in the detail and completeness
customary and usual for a business of the type engaged in by the Company. The
books and records shall at all times be maintained at the principal executive
office of the Company, or such other location as the Member shall determine from
time to time. At a minimum, the Members shall keep or cause to be kept those
records and books of account, for such times, as may be required by the Act.
6.02. Accounting Period. The Company's accounting period and
Fiscal Year shall be the calendar year.
ARTICLE VII
DISSOLUTION AND TERMINATION
7.01. Dissolution. The Company shall be dissolved upon the
occurrence of any of the following:
(a) at such time as the Member may decide that dissolution of
the Company would be appropriate;
(b) upon the bankruptcy, death, dissolution, expulsion,
incapacity or withdrawal of the Member or any other event which terminates the
continued membership of the Member in the Company (unless within one hundred
eighty days of such event, the Member decides to continue the Company); or
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(c) the entry of a decree of judicial dissolution.
7.02. Effect of Dissolution. Upon the occurrence of any of the
circumstances set forth in Section 7.01, the Company shall cease to carry on its
business, except insofar as may be necessary for the winding up of its business.
However, its separate existence shall continue until a certificate of
dissolution has been issued by the New York Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
7.03. Winding Up, Liquidation, and Distribution of Assets.
(a) Upon dissolution, an accounting may be made by the
Company's independent accountants, if any, of the accounts of the Company and
the Company's assets, liabilities and operations, from the date of the last
previous accounting until the date of dissolution.
(b) If the Company is dissolved and its affairs are to be
wound up, the Member shall promptly:
(i) sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent the Member may determine
to distribute any assets to itself in kind);
(ii) discharge all liabilities of the Company (including any
liabilities owed to the Member as a creditor of the Company, to the
extent otherwise permitted by the Act), other than liabilities to the
Member for distributions, and establish such reserves as may be
reasonably necessary to provide for contingencies or liabilities of the
Company; and
(iii) distribute the remaining assets to the Member.
(c) Upon completion of the winding up, liquidation, and
distribution of the Company's assets, the Company shall be deemed terminated.
(d) The Member shall comply with any applicable requirements
of the Act pertaining to the winding up of the affairs of the Company and the
final distribution of its assets.
7.04. Articles of Dissolution. Within ninety days following
the dissolution and the commencement of winding up of the Company, articles of
dissolution shall be executed in duplicate and verified by the person signing
the articles, which
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articles shall set forth the information required by the Act. Duplicate
originals of the articles of dissolution shall be delivered to the New York
Secretary of State.
7.05. Certificate of Dissolution. Upon the issuance of the
certificate of dissolution by the New York Secretary of State, the existence of
the Company shall cease, except for the purpose of suits, other proceedings and
appropriate action as provided in the Act. The Member shall have authority to
distribute, on behalf of the Company, any Company property discovered after
dissolution, convey real estate and take such other actions as may be necessary
on behalf of and in the name of the Company, all as provided for in the Act.
Notwithstanding anything contained in this Section 7.05, no act by the Member on
behalf of, and in connection with, the dissolution of the Company shall
constitute a waiver or modification of the provisions of Section 4.03 hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01. Application of the Act. This Operating Agreement, and
the interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of New York, including, without limitation, the Act.
8.02. Construction. Whenever the singular is used in this
Operating Agreement and when required by the context, the same shall include the
plural and vice versa, and any gender shall include all other genders.
8.03. Headings. The headings in this Operating Agreement are
for convenience only and are in no way intended to describe, define or limit the
scope, extent or intent of this Operating Agreement or any of its provisions.
8.04. Rights and Remedies Cumulative. The rights and remedies
provided by this Operating Agreement are cumulative and the use of any one right
or remedy by any party shall not preclude or waive the right to use any or all
other remedies. Such rights and remedies shall be in addition to any other
rights a member may have under the Act, any other law or regulation or
otherwise.
8.05. Severability. Whenever possible, each provision of this
Operating Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law. If any provision of this Operating Agreement shall
be prohibited by or
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invalid under such law, it shall be deemed modified to conform to the minimum
requirements of such law or, if for any reason it is not deemed so modified, it
shall be prohibited or invalid only to the extent of such prohibition or
invalidity without the remainder thereof or any other such provision being
prohibited or invalid.
8.06. Heirs, Successors and Assigns. Each and all of the
covenants, terms, provisions, and agreements contained in this Operating
Agreement shall be binding upon and inure to the benefit of the Member and, to
the extent permitted by this Operating Agreement, its successors and assigns.
8.07. Creditors. None of the provisions of this Operating
Agreement shall be deemed to be for the benefit of, or enforceable by, any
creditors of the Company.
IN WITNESS WHEREOF, the undersigned has executed this
Operating Agreement as of the 18th day of December, 1998.
TOWN SPORTS INTERNATIONAL, INC.,
as SOLE MEMBER
By: /s/ X. Xxxxxxxxxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxxxxx
Title: Executive Vice President
and Secretary
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CERTIFICATE
The undersigned hereby agrees, acknowledges, and certifies
that the foregoing Operating Agreement, consisting of 11 pages, constitutes the
Operating Agreement of TSI East 86, LLC, a New York Limited Liability Company,
adopted by the Member of the Company as of December 18, 1998.
SOLE MEMBER:
TOWN SPORTS INTERNATIONAL, INC.
By: /s/ X. Xxxxxxxxxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxxxxx
Title: Executive Vice President
and Secretary
