Exhibit 3.11
OPERATING AGREEMENT OF
TRAVELCENTERS REALTY, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (the "Agreement") is made effective as of the
1st day of January, 2003 by TA Operating Corporation (the "Member").
ARTICLE 1
ORGANIZATION OF THE COMPANY
Section 1.1 ORGANIZATION. Effective December 31, 2002, the authorized
representative of the Company, organized the Company by executing and filing
Certificates of Conversion and Formation with the Secretary of State of Delaware
in accordance with and pursuant to the Act. Prior to the Company's conducting
business in any jurisdiction other than the State of Delaware, the Managers
shall cause the Company to comply with all requirements necessary to qualify the
Company as a foreign limited liability company in that jurisdiction. At the
request of the Managers, the Member shall execute, acknowledge, swear to, and
deliver all certificates and other instruments conforming with this Agreement
that are necessary or appropriate to qualify, continue and terminate the Company
as a foreign limited liability company in all such jurisdictions in which the
Company may conduct business.
Section 1.2 NAME. The name of the Company is TravelCenters Realty,
L.L.C. (the "Company").
Section 1.3 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be located at 00000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxx 00000 or such other address as shall be designated by the Member.
Section 1.4 PURPOSES. The purposes of the Company are to engage in any
and all businesses or activities for which limited liability companies may be
organized under the laws of the State of Delaware, including, but not limited to
the acquisition and leasing of real estate.
Section 1.5 TERM. The term of the Company commenced on the date of
filing of the Certificate of Formation of the Company with the Secretary of
State of Delaware and shall continue until terminated by operation of law or
pursuant to the provisions hereof.
Section 1.6 REGISTERED AGENT. The registered agent for service of
process on the Company in the State of Delaware shall be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Corporation Trust Center, Xxxxxxxxxx, Xxxxxxxx
00000.
Section 1.7 DEFINITIONS. Any capitalized term used in this Agreement
shall have the meaning ascribed to such term in Schedule A hereto, unless
otherwise expressly provided herein or unless the context otherwise clearly
requires.
ARTICLE 2
CAPITAL CONTRIBUTIONS
Section 2.1 MEMBER'S CONTRIBUTIONS. Contemporaneously with the
execution of this Agreement, any capital of the corporation that existed prior
to the corporation's conversion to the Company, shall be converted and
attributed to the Member as a capital contribution. Additional Capital
Contributions to the Company shall be made from time to time in such amounts as
may be determined by the Member.
Section 2.2 RETURN OF CONTRIBUTIONS. The Member shall be entitled to
the return of its Capital Contributions upon the terms and conditions contained
in this Agreement. No interest shall be due or payable on either the Member's
Capital Account or its Capital Contribution. An unreturned Capital Contribution
shall not be a liability of the Company.
ARTICLE 3
PROFITS AND LOSSES; DISTRIBUTIONS; ACCOUNTING MATTERS
Section 3.1 ALLOCATION OF PROFITS AND LOSSES. All of the profits and
losses of the Company shall be allocated to and borne by the Member.
Section 3.2 DISTRIBUTIONS. Excess Cash Flow shall be calculated and
distributed to the Member on a monthly basis.
Section 3.3 WITHDRAWALS. The Member shall be entitled to make
withdrawals from its Capital Account by notice to the Managers at any time.
Section 3.4 BOOKS; FISCAL YEAR. (a) The books of the Company shall be
kept on the accrual basis and in accordance with generally accepted accounting
principles consistently applied. The Managers shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions and
proceedings under this Agreement, and all such accounts and other records
relating thereto shall be open to inspection and audit at all reasonable times
by the Member.
2
(b) The fiscal year of the Company shall be the calendar year.
Section 3.6 TAX RETURNS. The Managers shall cause to be prepared and
filed all necessary federal and state tax returns for the Company.
ARTICLE 4
MANAGEMENT
Section 4.1 MANAGEMENT BY MANAGERS. Except for situations in which the
approval of the Member is required by this Agreement or by nonwaivable
provisions of applicable law: (a) the powers of the Company shall be exercised
by or under the authority of, and the business and affairs of the Company shall
be managed under the direction of, the Managers; and (b) the Managers may make
all decisions and take all actions for the Company not otherwise provided for in
this Agreement, including (but not limited to) the following:
(1) entering into, making, and performing contracts, agreements,
and other undertakings binding the Company that may be
necessary, appropriate, or advisable in furtherance of the
purposes of the Company;
(2) seeking, investigating and completing the acquisition,
leasing, investment or disposition by the Company of
properties and assets;
(3) opening and maintaining bank and investment accounts and
arrangements, drawing checks and other orders for the
payment of money, and designating individuals with authority
to sign or give instructions with respect to those accounts
and arrangements;
(4) maintaining the assets of the Company in good order;
(5) collecting sums due the Company;
(6) paying debts and obligations of the Company; and
(7) the acquisition or disposition by the Company of any
properties or assets.
Section 4.2 NUMBER OF MANAGERS. Until changed in accordance with the
provisions of this Section, the number of Managers of the Company, none of whom
need be a Member, shall be five (5). The number of Managers may be changed at
the discretion of the Member.
3
Section 4.3 DESIGNATION OF MANAGERS. Managers shall be designated by
the Member. The following Persons shall serve as the initial Managers: Xxxxx X.
Xxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxxxxx and Xxxxxx X.
Xxx.
Section 4.4 TERM OF OFFICE. Each Manager shall hold office until such
Manager's death, resignation, or removal from office by the Member. Any vacancy
resulting from any of the foregoing shall be filled by the Member.
Section 4.5 ACTIONS OF THE MANAGERS. (a) All actions and decisions of
the Managers shall be made or approved by a majority of the Managers. Actions
and decisions by the Managers may be made or approved at a meeting held in
accordance with the provisions of this Agreement or by a written instrument
executed by the number of Managers required to take or approve such action under
this Section 4.5(a).
(b) Notwithstanding Section 4.5(a) or any other provision to the
contrary contained in this Agreement, the following matters shall require
approval by the Member:
(1) the borrowing of money or otherwise committing the credit of
the Company for any purpose;
(2) the entering into of any transaction with any Person where
such transaction is outside the scope of this Agreement;
(3) the admission of a Person as an additional or substituted
member of the Company;
(4) the dissolution or liquidation of the Company;
(5) any merger or consolidation of the Company with any other
entity; and
(6) selecting, removing, and changing the authority and
responsibility of lawyers, accountants, and other advisers
and consultants.
Section 4.6 PROHIBITED ACTIONS. Notwithstanding anything in this
Agreement to the contrary, the Managers shall not do any of the following:
(a) take any action described in Section 4.5(b) of this Agreement,
unless such action has been approved by the Member; or
(b) enter into any transaction of any kind with any Person where the
liability of the Member relating to such transaction is not limited to the
Company assets.
Section 4.7 MEETINGS. Meetings of the Managers shall be held at such
times and places as the Managers may, by resolution or by-law, from time to
time, determine.
4
Section 4.8 OFFICERS. (a) The Company may have a President and such
other officers as the Managers from time to time may appoint. All officers are
subject to removal at any time in the discretion of the Managers. Subject to the
limitations of this Agreement with respect to actions required to be taken by
the Managers or the Members, the officers shall have those duties as are
customarily possessed by such officers of a Delaware corporation, except as such
duties may be limited or expanded by action of the Managers.
(b) The Member and initial Managers hereby designate the following
Persons to serve as the initial officers of the Company:
President & CEO Xxxxx X. Xxxx
Xx. Vice President Xxxxx X. Xxxxxx
CFO & Secretary
Sr. Vice President, Xxxxxxx X. Xxxxx
Marketing
Sr. Vice President, Xxxxxxx X. Xxxxxxxxxxx
Sales
Vice President Xxxxxx X. Xxx
& General Counsel
Section 4.9 TAX MATTERS MEMBER. The Member shall act as the "tax
matters partner" for the Company, as that term is defined in, and for all
purposes of, Section 6231(a)(7) of the Code.
ARTICLE 5
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 5.1 PROOF OF FAILURE TO SATISFY STANDARD OF CONDUCT. The
Member, Managers and Officers shall not be deemed to have violated any standard
of conduct under this Article 5 unless such violation is proved, by clear and
convincing evidence, in an action brought against such person. The termination
of any action, suit or proceeding by judgment, order, settlement or upon a plea
of nolo contendere or its equivalent shall not of itself constitute proof or
create a presumption that the appropriate standard of conduct has been violated.
Section 5.2 LIMITATION OF LIABILITY. The Member, Managers and Officers
shall not be liable to the Company in damages for any action that the Member,
Managers and Officers take or fail to take in such capacity, unless such action
or failure to act was undertaken with
5
deliberate intent to cause injury to the Company or with reckless disregard for
the best interests of the Company.
Section 5.3 INDEMNIFICATION OF MEMBERS. The Company agrees to indemnify
the Member, Managers and Officers (an "indemnified party"), to the fullest
extent permitted by law, and to save and hold each indemnified party harmless
from, and in respect of, all (1) fees, costs and expenses incurred in connection
with or resulting from any claim, action or demand against such indemnified
party or the Company that arise out of or in any way relate to the Company, its
properties, business or affairs, and (2) such claims, actions and demands, and
any losses or damages resulting from such claims, actions and demands, including
amounts paid in settlement or compromise (if recommended by attorneys for the
Company) of any such claim, action or demand; PROVIDED, HOWEVER, that this
indemnification shall apply only so long as the indemnified party has acted in
good faith on behalf of the Company, in a manner reasonably believed by him or
her to be within the scope of his or her authority under this Agreement and in
the best interests of the Company, and only if such action or failure to act did
not constitute willful misconduct, fraud or gross negligence. Expenses,
including attorneys' fees, incurred by the Member, Managers and Officers in
defending any proceeding referred to in this Section 5.3, shall be paid by the
Company, in advance of the final disposition of such proceeding, upon receipt of
an undertaking by or on behalf of the Member, Managers and Officers to repay
such amount, if it shall ultimately be determined that she or he is entitled to
be indemnified by the Company as authorized in this Section 5.3.
ARTICLE 6
DISPOSITIONS OF INTERESTS
The Member shall not sell, transfer, assign, donate or otherwise
dispose of its Membership Interest without thirty (30) days prior notice to the
Managers.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
Section 7.1 DISSOLUTION. The Company shall be dissolved and its affairs
wound up on the first to occur of the following:
(a) the written election of the Member to dissolve; or
(b) an entry of a decree of judicial dissolution of the Company.
Section 7.2 LIQUIDATION AND TERMINATION. On dissolution of the Company,
the Managers shall act as liquidator. The liquidator shall proceed diligently to
wind up the affairs of the Company and make final distributions as provided
herein and in the Act. The costs of
6
liquidation shall be borne as a Company expense. Until final distribution, the
liquidator shall continue to manage the Company assets with all of the power and
authority of the Managers. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities to
creditors so as to enable the liquidator to minimize any losses resulting from
liquidation. The liquidator, as promptly as possible after dissolution, shall
apply the proceeds of liquidation as set forth in the remaining sections of this
Article 7.
Section 7.3 PAYMENT OF DEBTS. The assets shall first be applied to the
payment of the liabilities of the Company and the expenses of liquidation.
Section 7.4 REMAINING DISTRIBUTION. The remaining assets shall then be
distributed to the Member.
Section 7.5 RESERVE. Notwithstanding the foregoing provisions, the
liquidator may retain such amount as it deems necessary as a reserve for any
contingent liabilities or obligations of the Company, which reserve, after the
passage of a reasonable period of time, shall be distributed pursuant to the
provisions of this Article 7.
Section 7.6 FINAL ACCOUNTING. The Member shall be furnished with a
statement which shall set forth the assets and liabilities of the Company as of
the date of the complete liquidation. Upon the compliance by the liquidator with
the foregoing distribution plan, the liquidator shall execute and cause to be
filed a Certificate of Cancellation and any and all other documents necessary
with respect to termination and cancellation of the Company under the Act.
ARTICLE 8
MISCELLANEOUS
Section 8.1 FEDERAL INCOME TAX ELECTIONS. In the event of a transfer of
all or part of the interest of the Member in the Company, the Company may elect
pursuant to Section 754 of the Code (or any similar provision enacted in lieu
thereof) to adjust the basis of the assets of the Company upon written request
of the transferee, unless such election would have a materially unfavorable
effect upon any of the Members.
Section 8.2 GOVERNING LAW. The Company and this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be wholly performed in Delaware.
Section 8.3 ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties and supersedes any prior understanding and
agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements, or understandings, oral or written,
between or among the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein.
7
Section 8.4 SEVERABILITY. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement, or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby but
rather shall be enforced to the greatest extent permitted by law.
Section 8.5 NOTICES. Any notice or communication required or permitted
to be given by any provision of this Agreement shall be deemed to have been
given and received for all purposes when delivered personally to the party to
whom the same is directed or when mailed or sent by overnight delivery service,
charges prepaid, addressed to the party to whom the same is directed at the
address set forth in this Agreement, or such other address as the Company has
received written notice from the appropriate party from time to time.
Section 8.6 AMENDMENT. This Agreement may be amended only by action by
the Member.
Section 8.7 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the
covenants, terms, provisions and agreements contained in this Agreement shall be
binding upon and inure to the benefit of the parties hereto and, to the extent
permitted by this Agreement, their respective heirs, legal representatives,
successors and assigns.
Section 8.8 CREDITORS. None of the provisions of this Agreement shall
be for the benefit of or enforceable by any creditors of the Company.
Section 8.9 PRONOUNS AND PLURALS. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the identity of the person or persons may require.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
MEMBER:
TA Operating Corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx, Authorized
Representative
8
SCHEDULE A
For purposes of the foregoing Operating Agreement (the "Agreement"),
the following terms shall have the meanings respectively ascribed to them in
this Schedule, which shall be treated as part of the terms of the Agreement:
ACT: "Act" shall mean the Delaware Limited Liability Company Act
codified at Del. Code Xxx. tit. 6 ss.18-101 to 18-1107, inclusive, as in effect
from time to time in the State of Delaware.
AGREEMENT: "Agreement" shall mean the Operating Agreement of the
Company as the same may be amended from time to time in accordance with its
terms.
CAPITAL CONTRIBUTION: "Capital Contribution" shall mean the amount in
cash (or other property) contributed by the Member (or such Member's predecessor
in interest) to the capital of the Company for such Member's Membership Interest
in the Company.
CASH FLOW: "Cash Flow" shall mean all revenue received by the Company
from Company operations, or from the sale, exchange or other disposition of all
or any part of the assets of the Company or from the refinancing of any
indebtedness on the assets owned by the Company, less all expenses of every kind
(before deduction for cost recovery or other non-cash expenses) of the Company
for any period.
CODE: "Code" shall mean the Internal Revenue Code of 1986, as amended.
COMPANY: "Company" shall mean TravelCenters Realty, L.L.C., a Delaware
limited liability company.
EXCESS CASH FLOW: "Excess Cash Flow" shall mean Cash Flow of the
Company in excess of such reserves as the Managers reasonably determine are
necessary from time to time for the efficient operation of the Company's
business.
IRS: "IRS" shall mean the Internal Revenue Service.
MANAGER: "Manager" shall mean each individual designated as a manager
of the Company pursuant to Article 4.
MEMBER: "Member" shall mean TA Operating Corporation, and any Person
hereafter admitted to the Company as a Member as provided in the Agreement.
MEMBERSHIP INTEREST: "Membership Interest" shall mean the entire
interest of a Member in the Company, including (but not limited to) rights to
distributions (liquidating or otherwise) and allocations.
A-1
OFFICER: "Officer" shall mean any individual appointed to act as the
President, a Vice President, Treasurer or the Secretary of the Company or any
other office established by the Managers pursuant to the Agreement.
PERSON: "Person" shall have the meaning given that term in
ss.18-101(11) of the Act.
A-2
