EXHIBIT 3.13
LIMITED LIABILITY COMPANY AGREEMENT
OF
THE BON-TON TRADE, LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of The Bon-Ton Trade, LLC (the "Company"), is
entered into by The Bon-Ton Department Stores, Inc., a Pennsylvania corporation,
as the sole member (the "Member"). Capitalized terms used and not otherwise
defined herein have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as amended
from time to time (the "Act"), and this Agreement, and the Member hereby agrees
as follows:
Section 1. Name.
The name of the limited liability company formed hereby is The Bon-Ton
Trade, LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at 000
Xxxxxxxx Xxxxxx, Xxxxx 00000, Xxxxxxxxxx, XX 00000 or such other location as may
hereafter be determined by the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is:
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service of
process on the Company in the State of Delaware is:
Corporation Service Company
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Section 5. Members.
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(a) The mailing address of the Member is set forth on Schedule B attached
hereto. The Member was admitted to the Company as a member of the Company upon
its execution of a counterpart signature page to this Agreement.
(b) The Member may act by written consent.
Section 6. Purposes.
The purposes for which the Company has been formed is to engage in any
lawful act or activity and to exercise any powers permitted to limited liability
companies organized under the laws of the State of Delaware.
Section 7. Powers.
The Company, and the Board of Directors and the Officers of the Company on
behalf of the Company, (i) shall have and exercise all powers necessary,
convenient or incidental to accomplish its purposes as set forth in Section 6
and (ii) shall have and exercise all of the powers and rights conferred upon
limited liability companies formed pursuant to the Act.
Section 8. Management.
(a) Board of Directors. The business and affairs of the Company shall be
managed by or under the direction of a Board of one or more Directors designated
by the Member. The authorized number of Directors may be increased or decreased
by the Member at any time in its sole and absolute discretion. The initial
number of Directors shall be two (2). Each Director designated by the Member
shall hold office until a successor is designated and qualified or until such
Director's earlier death, resignation, expulsion or removal. Directors need not
be a Member. The initial Directors designated by the Member are listed on
Schedule C hereto.
(b) Powers. The Board of Directors shall have the power to do any and all
acts necessary, convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or otherwise. The
Board of Directors has the authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors may hold
meetings, both regular and special, within or outside the State of Delaware.
Regular meetings of the Board may be held without notice at such time and at
such place as shall from time to time be determined by the Board. Special
meetings of the Board may be called by the President on not less than one day's
notice to each Director by telephone, facsimile, mail or any other means of
communication, and special meetings shall be called by the President or
Secretary in like manner and with like notice upon the written request of any
one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of
the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the
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meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The Board
may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at
any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute
a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the resolution of
the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and
affairs of the Company. Such committee or committees shall have
such name or names as may be determined from time to time by
resolution adopted by the Board. Each committee shall keep
regular minutes of its meetings and report the same to the Board
when required.
(g) Compensation of Directors; Expenses. The Board shall have the authority
to fix the compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at meetings of the Board, which may be a fixed sum for
attendance at each meeting of the Board or a stated salary as Director. No such
payment shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any Director
or the entire Board of Directors may be removed or expelled, with or without
cause, at any time by the Member, and any vacancy caused by any such removal or
expulsion may be filled by action of the Member.
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(i) Directors as Agents. To the extent of their powers set forth in this
Agreement, the Directors are agents of the Company for the purpose of the
Company's business, and the actions of the Directors taken in accordance with
such powers set forth in this Agreement shall bind the Company. Notwithstanding
the last sentence of Section 18-402 of the Act, except as provided in this
Agreement or in a resolution of the Directors, a Director may not bind the
Company.
Section 11. Officers.
(a) Officers. The initial Officers of the Company shall be designated by
the Member. The Board shall appoint successor Officers and may appoint such
other Officers and agents as it shall deem necessary or advisable who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board. The salaries of
all Officers and agents of the Company shall be fixed by or in the manner
prescribed by the Board. Any number of offices may be held by the same person.
The Officers of the Company shall hold office until their successors are chosen
and qualified. Any Officer may be removed at any time, with or without cause, by
the affirmative vote of a majority of the Board. Any vacancy occurring in any
office of the Company shall be filled by the Board. The initial Officers of the
Company designated by the Member are listed on Schedule D hereto.
(b) President. The President shall be the chief executive officer of the
Company, shall preside at all meetings of the Board, shall be responsible for
the general and active management of the business of the Company and shall see
that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed; and (ii)
where signing and execution thereof shall be expressly delegated by the Board to
some other Officer or agent of the Company.
(c) Vice President. In the absence of the President or in the event of the
President's inability to act, the Vice President, if any (or in the event there
be more than one Vice President, the Vice Presidents in the order designated by
the Directors, or in the absence of any designation, then in the order of their
election), shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents, if any, shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be responsible
for filing legal documents and maintaining records for the Company. The
Secretary shall attend all meetings of the Board and record all the proceedings
of the meetings of the Company and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
The Secretary shall give, or shall cause to be given, notice of all meetings of
the Member, if any, and special meetings of the Board, and shall perform such
other duties as may be prescribed by the Board or the President, under whose
supervision the Secretary shall serve. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board
(or if there be no such determination, then in order of their election), shall,
in the absence of the Secretary or in the event of the Secretary's inability to
act,
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perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board may from time to time
prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody
of the Company funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board. The Treasurer
shall disburse the funds of the Company as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the President and to
the Board, at its regular meetings or when the Board so requires, an account of
all of the Treasurer's transactions and of the financial condition of the
Company. The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Treasurer or in the event of the Treasurer's inability to act, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and the actions of the Officers taken in accordance with
such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise provided
herein, each Director and Officer shall have a fiduciary duty of loyalty and
care similar to that of directors and officers of business corporations
organized under the General Corporation Law of the State of Delaware.
Section 10. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be the debts, obligations and liabilities solely of the Company, and
neither the Member nor any Director shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being a Member
or Director of the Company.
Section 11. Capital Contributions.
The Member has contributed to the Company the property listed on Schedule B
attached hereto.
Section 12. Additional Contributions.
The Member is not required to make any additional capital contribution to
the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule B of this Agreement.
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The Member shall not have any duty or obligation to any creditor of the Company
to make any contribution to the Company or to issue any call for capital
pursuant to this Agreement.
Section 13. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 14. Distributions.
Distributions of capital shall be made to the Member at the times and in
the aggregate amounts determined by the Board. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall not make a
distribution of capital to the Member on account of its interest in the Company
if such distribution would violate Section 18-607 of the Act or any other
applicable law.
Section 15. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
Section 16. Other Business.
The Member and any Affiliate of the Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of every kind
and description, independently or with others notwithstanding any provision to
the contrary at law or at equity. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section 17. Exculpation and Indemnification.
(a) Neither the Member nor any Officer, Director, employee or agent of the
Company nor any employee, representative, agent or Affiliate of the Member
(collectively, the "Covered Persons") shall, to the fullest extent permitted by
law, be liable to the Company or any other Person that is a party to or is
otherwise bound by this Agreement, for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross negligence or
willful misconduct.
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(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 16 by the Company shall be provided out of
and to the extent of Company assets only, and the Member shall not have personal
liability on account thereof; and provided further, that so long as any
Obligation is outstanding, no indemnity payment from funds of the Company (as
distinct from funds from other sources, such as insurance) of any indemnity
under this Section 16 shall be payable from amounts allocable to any other
Person.
(c) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Company of an undertaking by or on behalf of the Covered Person
to repay such amount if it shall be determined that the Covered Person is not
entitled to be indemnified as authorized in this Section 16.
(d) A Covered Person shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person 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, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or
to any other Covered Person, a Covered Person acting under this Agreement shall
not be liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
to replace such other duties and liabilities of such Covered Person.
(f) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 17. Assignments.
Subject to Section 18, the Member may assign its limited liability company
interest in the Company. If the Member transfers all of its limited liability
company interest in the Company pursuant to this Section 17, the transferee
shall be admitted to the Company as a member of the
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Company upon its execution of an instrument signifying its agreement to be bound
by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the transfer and, immediately following such
admission, the transferor Member shall cease to be a member of the Company. Any
successor to a Member by merger or consolidation shall, without further act, be
the Member hereunder, and such merger or consolidation shall not constitute an
assignment for purposes of this Agreement and the Company shall continue without
dissolution.
Section 18. Admission of Additional Members.
One or more additional members may be admitted to the Company with the
written consent of the Member.
Section 19. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up upon
the first to occur of the following: (i) the termination of the legal existence
of the last remaining member of the Company or the occurrence of any other event
which terminates the continued membership of the last remaining member of the
Company in the Company unless the Company is continued without dissolution in a
manner required under this Section 19(a) or permitted by this Agreement or the
Act or (ii) the entry of a decree of judicial dissolution under Section 18-802
of the Act. Upon the occurrence of any event that causes the last remaining
member of the Company to cease to be a member of the Company or that causes the
Member to cease to be a member of the Company (other than (i) upon an assignment
by the Member of all of its limited liability company interest in the Company
and the admission of the transferee pursuant to Sections 17 and 18, or (ii) the
resignation of the Member and the admission of an additional member of the
Company pursuant to Section 18), to the fullest extent permitted by law, the
personal representative of such member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated the continued
membership of such member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or its nominee
or designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company or the Member in the
Company.
(b) Notwithstanding any other provision of this Agreement, the Bankruptcy
of the Member or any additional member shall not cause the Member or additional
member, respectively, to cease to be a member of the Company and upon the
occurrence of such an event, the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(d) The Company shall terminate when (i) all of the assets of the Company,
after payment of or due provision for all debts, liabilities and obligations of
the Company shall have
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been distributed to the Member in the manner provided for in this Agreement and
(ii) the Certificate of Formation shall have been canceled in the manner
required by the Act.
Section 20. Tax Status.
It is intended that the Company shall be a disregarded entity for federal,
state, and local income tax purposes.
Section 21. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 22. Entire Agreement.
This Agreement constitutes the entire agreement with respect to the subject
matter hereof.
Section 23. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 24. Effectiveness.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of the time of the filing of the Certificate of Formation with the
Office of the Delaware Secretary of State.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the 23rd day of
March, 2006.
MEMBER:
THE BON-TON DEPARTMENT STORES,
INC., a Pennsylvania corporation
By: /s/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx
Vice President
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SCHEDULE A
Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person or any Person who has a direct familial relationship,
by blood, marriage or otherwise with the Company or any Affiliate of the
Company.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware, as amended
or amended and restated from time to time.
"Directors" means the Persons elected to the Board of Directors from time
to time by the Member in its capacity as manager of the Company. A Director is
hereby designated as a "manager" of the Company within the meaning of Section
18-101(10) of the Act.
A-1
"Member" means The Bon-Ton Department Stores, Inc., a Pennsylvania
corporation, as the initial member of the Company, and includes any Person
admitted as an additional member of the Company or a substitute member of the
Company pursuant to the provisions of this Agreement, each in its capacity as a
member of the Company.
"Officer" means an officer of the Company described in Section 9.
"Officer's Certificate" means a certificate signed by any Officer of the
Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
A-2
SCHEDULE B
Member
Capital Membership
Name Mailing Address Contribution Interest
---- --------------- ------------ ----------
The Bon-Ton Department Stores, 0000 Xxxx Xxxxxx Xxxxxx All outstanding common stock of The
Inc. Xxxx, Xxxxxxxxxxxx 00000 Bon-Ton Trade Corp. 100%
SCHEDULE C
DIRECTORS
1. Xxxxx X. Xxxxxxx
2. Xxxxxx X. Xxxxx
SCHEDULE D
OFFICERS TITLE
-------- -----
Xxxxxx X. Xxxxx President and Secretary
Xxxxx X. Xxxxxxx Treasurer and Chief Financial Officer
Xxxxxxx Xxxxx Assistant Treasurer
