Exhibit 3.11
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ST. XXXX XXXX, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") is made and entered into as of this 30th day of April, 1999, by St.
Xxxx Knits, Inc., a California corporation ("St. Xxxx"), as the sole "Member".
(Collectively, "Members" refers to St. Xxxx, as the sole Member, and any
subsequent Member.)
WHEREAS, the Member is the sole member of a limited liability
company formed pursuant to the laws of the State of Delaware on June 6, 1997
(the "Company");
WHEREAS, the name of the Company was "Amen Wardy Home Stores, LLC";
WHEREAS, the Member has caused to be filed a Certificate of
Amendment of the Certificate of Formation of the Company changing the name of
the Company to "St Xxxx Xxxx, LLC"; and
WHEREAS, the Member desires to amend and restate the Limited
Liability Company Agreement of the Company, dated August 5, 1997;
NOW THEREFORE, BE IT RESOLVED in consideration of the mutual
covenants contained herein, the Member agrees as follows:
1. Formation. The Company has been formed pursuant to the provisions
of the Delaware Limited Liability Company Act (the "Act") and subject to the
terms, provisions and conditions set forth in this Agreement. The purpose of the
Company is to engage in any lawful activity that is not prohibited under the
Act.
2. Filing. The Company has been formed by filing a Certificate of
Formation that complies with the requirements of the Act with the Delaware
Secretary of State.
3. Name. The name of the Company is "St. Xxxx Xxxx, LLC."
4. Percentage Interests. The Members own the Company. (More
generally, the "Percentage Interest" refers to each Member's interest.)
5. Profits and Losses. The Members shall share in the profits and
losses of the Company in accordance with their respective Percentage Interests.
As used herein, "profits" and "losses" shall mean the Company's net book income
and net book loss computed in accordance with Section 1.704-1(b)(2) of the
Regulations promulgated by the Department of the Treasury (the "Regulations")
pursuant to the Internal Revenue Code, as amended (the "Code"), and otherwise as
computed for federal income tax purposes. Subject to application of the
principles of Sections 704(c) and 754 of the Code and Section 1.704.1(b)(4)(i)
of the Regulations, all items of income, gain, loss and deduction for federal
and state tax purposes shall be allocated in accordance with the corresponding
"book" items hereunder.
6. Capital Contribution. The Members have made the initial capital
contribution as set forth on Exhibit A. No interest shall accrue on any capital
contribution and no Member shall have the right to withdraw or be repaid any
capital contribution except as provided in this Agreement. Additional capital
contributions, if any, shall be made by the Members pro rata in accordance with
their respective Percentage Interests, in the amounts and upon the terms and
conditions as the Members may unanimously agree.
7. Capital Accounts and Recapture.
a. Maintenance of Capital Accounts - The Company shall
establish and maintain capital accounts for each Member and Assignee (the
"Capital Accounts"). Each Member's Capital Account shall be increased by (a) the
amount of any money actually contributed by the Member to the capital of the
Company, (b) the fair market value of any property contributed, as determined by
the Company and the contributing Member at arm's length at the time of
contribution (net of liabilities assumed by the Company or subject to which the
company takes such Property, within the meaning of Section 752 of the Code) and
(c) the Member's share of profits and of any separately allocated items of
income or gain. Each Member's Capital Account shall be decreased by (x) the
amount of any money actually distributed to the Member from the capital of the
Company, (y) the fair market value of any property distributed to the Member, as
determined by the Company and the contributing Member at arm's length at the
time of contribution (net of liabilities of the Company assumed by the Member or
subject to which the Member takes such Property within the meaning of Section
752 of the Code) and (z) the Member's share of losses and of any separately
allocated items of deduction or loss.
b. Distribution of Assets - If the Company at any time
distributes any of its assets in kind to any Member, the Capital Account of each
Member shall be adjusted to account for that Member's allocable share of the net
profits or net losses that would have been realized by the Company had it sold
the assets that were distributed at their respective fair market values
immediately prior to their distribution.
c. Qualified Income Offset - This Section 7 is intended to and
shall constitute a "Qualified Income Offset" as provided by Section
1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
d. Minimum Gain Chargeback - If there is a net decrease in
partnership minimum gain or partner minimum gain (as defined in the
Regulations), there shall be specially allocated to the appropriate Members
items of Company income and gain equal to such Member's share of the net
decrease determined in accordance with Sections 1.704-2(g) and 1.704-2(i)(4) of
the Regulations. This provision is intended to comply with the minimum gain
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chargeback requirements of Regulations Sections 1.704-2(f) and 1.704-2(i)(4) and
shall be interpreted consistently therewith.
e. Compliance with Section 704(b) of the Code - The provisions
of this Agreement as they relate to the allocation of profits and losses and
items thereof (including depreciation) and the maintenance of Capital Accounts
are intended, and shall be construed, and, if necessary, modified to cause the
allocations of profits, losses, income, gain and credit pursuant to this Section
7 to have substantial economic effect under the Code and the Regulations
promulgated under Section 704(b) of the Code in light of the distributions made
pursuant to this Agreement. This Agreement shall not be construed as creating a
deficit restoration obligation or otherwise personally obligating any Member or
its assignees or successors in interest to make a Capital Contribution in excess
of the Initial Capital Contribution and any Additional Contributions under
Section 6 hereof.
8. Distributions. Each distribution to the Members of cash or other
assets of the Company shall be made in accordance with their respective
Percentage Interests in such amounts and at such times as shall be determined by
the Managing Member (as defined in Section 10 below).
9. Accounting.
a. Books and Records - The records of the Company shall be
maintained based on an accrual basis in accordance with generally accepted
accounting principles, consistently applied.
b. Tax Matters for the Company Handled by the Managing Member
and Tax Matters Partner - The Managing Member (as defined in Section 10 below)
shall from time to time cause the Company to make such tax elections as the
Managing Member deems to be in the best interest of the Company and the Members.
The Tax Matters Partner, as defined in Code Section 6231, shall be St. Xxxx and
shall represent the Company (at the Company's expense) in connection with all
examinations of the Company's affairs by tax authorities. The Tax Matters
Partner shall oversee the Company tax affairs in the overall best interests of
the Company. If for any reason the Tax Matters Partner can no longer serve in
that capacity, Members holding a majority interest may designate another Tax
Matters Partner.
10. Management. The Company shall be member-managed. The Act
provides that each Member is an agent of the Company with the power to bind the
Company under the circumstances described in the Act. Nevertheless, the sole
Member and, by joining the Company, the Members agree among themselves that St.
Xxxx shall be the managing member of the Company (such Member, and each
successor as managing member appointed in accordance with this Agreement, being
referred to herein as the "Managing Member"), and that all decisions to be made
on behalf of the Company and all actions to be taken on behalf of the Company
shall be made or taken solely by such Managing Member and that no other Member
shall have the power or authority under this Agreement to make any decisions or
take any actions on behalf of the Company. Without limiting the foregoing, the
Managing Member shall have the
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sole authority to execute and/or deliver, in furtherance of the Company
business, any deed of trust, promissory note, xxxx of sale, contract or other
instrument purporting to convey, exchange or encumber any Company asset. The
Managing Member shall not be removed and its duties shall not be limited by any
action taken by or on behalf of any other Member, other than upon the majority
written vote of the Members. Upon any such removal of the Managing Member, upon
the resignation of the Managing Member or upon the Managing Member's ceasing to
act as the Managing Member for any other reason, a successor Managing Member
shall be appointed by the Members, including any successor trustee who has
become a member pursuant to Section 13 below. Any Member may call a meeting of
the Members from time to time by written notice to the other Members. No other
meetings shall be required.
11. Events Giving Rise to Dissolution. The Company shall dissolve
upon the first to occur of the following, and upon no other event or occurrence:
a. the election by Members holding two-thirds of the
Percentage Interests, and the concurrence of the Managing Member, to
dissolve the Company;
b. any event that makes it unlawful for the business of the
Company to be carried on by the Members;
c. the resignation, retirement, withdrawal, dissolution or
voluntary or involuntary bankruptcy of any Member, unless all other
Members vote to continue the Company within 90 days of such event; or
d. January 1, 2043.
12. Liquidation. Upon dissolution of the Company, the assets of the
Company shall be liquidated and the proceeds thereof shell be paid in the
following order:
a. To the Company's creditors in the order of priority
required by law;
b. To a reasonable reserve for reasonably foreseeable
contingent liabilities to be distributed when and as the Members agree;
and
c. Thereafter to the Members in accordance with their
respective Capital Accounts.
13. Assignment of Membership Interests; Admission of New Members. No
Member shall assign any portion or component of his, her or its interest
in the Company and no new or substitute members shall be admitted to the
Company without the unanimous written consent of the Members, which may be
withheld in each Member's sole and absolute discretion. Notwithstanding
the foregoing to the contrary, if any person who is acting as a trustee of
a trust that is a Member shall cease to be a trustee of such trust, the
successor trustee or trustees shall continue to be a Member.
14. Amendment. This Agreement, except with respect to vested rights
of Members, may be amended at any time by a vote of the Members holding a
majority of the
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Percentage Interests, provided, however, that any amendment to Section 10 above
shall require the consent of St. Xxxx. Each Member hereby grants to each other
Member such granting Member's power of attorney to execute any amendment to this
Agreement that is duly adopted in accordance with the foregoing as
attorney-in-fact and agent of such granting Member, which power of attorney
shall be deemed to be coupled with an interest that shall not be revoked until
the termination and winding up of the Company. Each Member agrees to be bound by
each amendment hereto that is duly adopted in accordance with this Agreement,
whether or not such Member actually executes such amendment.
15. Governing Law; Jurisdiction. This Agreement and the rights of
the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware.
16. Bank Accounts. Any Member shall be authorized to endorse checks,
drafts or other evidences of indebtedness made payable to the order of the
Company, but only for the purpose of deposit in the Company account; and only
the Managing Member shall be authorized to sign on behalf of the Company all
checks drawn on the Company account.
17. Successors and Assigns. Except as provided in this Agreement to
the contrary, this Agreement shall be binding upon and inure to the benefit of
the parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
ST. XXXX KNITS, INC.,
a California corporation
By: /s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx
-----------------------------------
Title: Chief Executive Officer
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EXHIBIT A
CAPITAL CONTRIBUTIONS
Name and Initial Capital Percentage
Address of Contribution and Interest
Initial Members Value --------
--------------- -----
St. Xxxx Knits, Inc. $500,000 100%
A-1
