EXHIBIT 3.27
LIMITED LIABILITY COMPANY OPERATING
AGREEMENT
OF
RTMMC ACQUISITION, LLC
LIMITED
LIABILITY COMPANY OPERATING AGREEMENT (this
“Agreement”) of RTMMC Acquisition, LLC, is entered into
as of the 27 th day of May, 2005, by Triarc Companies,
Inc., a Delaware corporation, as the sole member of the limited
liability company (the “Member”).
The
Member hereby forms a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6
Del.C. § 18-101, et seq .), as amended
from time to time (the “Act”), and hereby agrees as
follows:
1.
Name . The name of the limited liability company formed
hereby is RTMMC Acquisition, LLC (the
“Company”).
2.
Purpose . The Company is formed for the object and purpose
of, and the nature of the business to be conducted and promoted by
the Company is, engaging in any lawful act or activity for which
limited liability companies may be formed under the Act and
engaging in any and all activities necessary or incidental to the
foregoing.
3.
Registered Office . The address of the registered office of
the Company in the State of Delaware is 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808.
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, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808.
5.
Powers of the Company .
(a)
The Company shall have the power and authority to take any and all
actions necessary, appropriate, advisable, convenient or incidental
to or for the furtherance of the purpose set forth in Section 2,
including, but not limited to, the power:
(A)
to conduct its business, carry on its operations and have and
exercise the powers granted to a limited liability company by the
Act in any state, territory, district or possession of the United
States or in any foreign country that may be necessary, convenient
or incidental to the accomplishment of the purpose of the
Company;
(B)
to acquire, by purchase, lease, contribution of property or
otherwise, and to own, hold, operate, maintain, finance, improve,
lease, sell, convey, mortgage,
transfer, demolish or dispose of
any real or personal property that may be necessary, convenient or
incidental to the accomplishment of the purpose of the
Company;
(C)
to enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with the Member, any
Manager (as hereinafter defined) or any person or other entity that
directly or indirectly controls, is controlled by, or is under
common control with the Member (any such person or entity, an
“Affiliate”), or any agent of the Company necessary to,
in connection with, convenient to, or incidental to, the
accomplishment of the purpose of the Company. For purposes of the
definition of Affiliate, the term “control” means
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entity, whether
through ownership of voting securities or otherwise;
(D)
to purchase, take, receive, subscribe for or otherwise acquire,
own, hold, vote, use, employ, sell, mortgage, lend, pledge, or
otherwise dispose of, and otherwise use and deal in and with,
shares or other interests in or obligations of domestic or foreign
corporations, associations, general or limited partnerships
(including, without limitation, the power to be admitted as a
partner thereof and to exercise the rights and perform the duties
created thereby), trusts, limited liability companies (including,
without limitation, the power to be admitted as a member or
appointed as a manager thereof and to exercise the rights and
perform the duties created thereby), and other entities or
individuals, or direct or indirect obligations of the United States
or any foreign country or of any government, state, territory,
governmental district or municipality or of any instrumentality of
any of them;
(E)
to lend money for any proper purpose, to invest and reinvest its
funds, and to take and hold real and personal property for the
payment of funds so loaned or invested;
(F)
to sue and be sued, complain and defend and participate in
administrative or other proceedings, in its name;
(G)
to appoint employees and agents of the Company, and define their
duties and fix their compensation;
(H)
to indemnify any person or entity and to obtain any and all types
of insurance;
(I)
to cease its activities and cancel its insurance;
(J)
to negotiate, enter into, renegotiate, extend, renew, terminate,
modify, amend, waive, execute, acknowledge or take any other action
with respect to any lease, contract or security agreement in
respect of any assets of the Company;
(K)
to borrow money and issue evidences of indebtedness, and to secure
the same by a mortgage, pledge or other lien on any or all of the
assets of the Company;
2
(L)
to guarantee indebtedness, including indebtedness of subsidiaries
of the Company;
(M)
to pay, collect, compromise, litigate, arbitrate or otherwise
adjust or settle any and all other claims or demands of or against
the Company or to hold such proceeds against the payment of
contingent liabilities; and
(N)
to make, execute, acknowledge and file any and all documents or
instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
(b)
The Company may merge with, or consolidate into, another Delaware
limited liability company or other business entity (as defined in
Section 18-209(a) of the Act) upon the written consent of the
Member, in its sole discretion.
6.
Member . The name and the business, residence or mailing
address of the member of the Company are as follows:
|
|
|
|
|
Name:
|
|
Address:
|
|
|
|
|
|
|
|
|
|
Triarc Companies, Inc.
|
|
280 Park Avenue
|
|
|
|
New York, NY 10017
|
7.
Powers of Member . The Member shall have the power to
exercise any and all rights and powers granted to the Member
pursuant to the express terms of this Agreement. Except as
otherwise specifically provided by this Agreement or required by
the Act, the Board of Managers (as hereinafter defined) shall have
the power to act for and on behalf of, and to bind, the Company.
Each of Stuart I. Rosen, Tambra S. King and Jane Singletary is
hereby designated as an authorized person, with the meaning of the
Act, to execute, deliver and file the certificate of formation of
the Company and any amendments and/or restatements thereof (the
“Certificate of Formation”) and any other certificates
(and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in a jurisdiction in which the
Company may wish to conduct business.
8.
Management .
(a)
General Powers . The business and affairs of the Company
shall be managed by or under the direction of the Board of
Managers, which may exercise all such powers of the Company and
perform all such lawful acts and things as are not by the Act, the
Certificate of Formation or this Agreement directed or required to
be exercised or performed by the Member.
(b)
Number and Term of Office . The number of Managers shall be
two or such other number as shall be fixed from time to time by the
Member. Managers need not be Members. Managers shall be elected by
written consent of the Member and each Manager shall hold office
until his successor is elected and qualified or until his earlier
death or resignation or removal in the manner hereinafter
provided.
3
(c)
Resignation . Any Manager may resign at any time by written
notice to the Board of Managers. Such resignation shall take effect
at the time specified in such notice or, if the time be not
specified, upon receipt thereof by the Board of Managers. Unless
otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
(d)
Removal . Any or all of the Managers may be removed, with or
without cause, at any time by written consent of the
Member.
(e)
Vacancies . Vacancies occurring on the Board of Managers as
a result of the removal of Managers without cause may be filled
only by written consent of the Member. Vacancies occurring on the
Board of Managers for any other reason, including, without
limitation, vacancies occurring as a result of the creation of new
manager positions that increase the number of Managers, may be
filled by such vote or written consent of the Board of Managers or
by written consent of the Member. If the number of Managers then in
office is less than a quorum, such other vacancies may be filled by
vote of a majority of the Managers then in office or by written
consent of the Board of Managers or the Member. Unless earlier
removed pursuant to Section 8(d) hereof, each Manager chosen in
accordance with this Section 8(e) shall hold office until the next
annual election of Managers by the Member and until his or her
successor shall be elected and qualified.
(f)
Meetings .
(i)
Times and Places of Meetings . The Board of Managers may
hold meetings, both regular and special, either within or without
the State of Delaware. The times and places for holding meetings of
the Board of Managers may be fixed from time to time by resolution
of the Board of Managers or (unless contrary to a resolution of the
Board of Managers) in the notice of the meeting.
(ii)
Annual Meetings . As soon as practicable after each annual
election of Managers by the Member, the Board of Managers shall
hold its annual meeting, without notice of such meeting, for the
purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board of
Managers may be held at any other time and place specified in a
notice given as provided in Section 8(f)(iv) hereof for special
meetings of the Board of Managers or in a waiver of notice
thereof.
(iii)
Regular Meetings . Regular meetings of the Board of Managers
may be held without notice at such times and at such places as
shall from time to time be determined by the Board of
Managers.
(iv)
Special Meetings . Special meetings of the Board of Managers
may be called by the President or the Secretary or by any two or
more Managers then serving on at least one day’s notice to
each Manager given by one of the means specified in Section
8(f)(vii) hereof other than by mail, or on at least three
days’ notice if given by mail. Special meetings shall be
called by the President or Secretary in like manner and on like
notice on the written request of any two or more of the Managers
then serving.
4
(v)
Telephone Meetings . Managers or members of any committee
designated by the Board of Managers may participate in a meeting of
the Board of Managers or of such committee by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 8(f)(v) shall
constitute presence in person at such meeting.
(vi)
Adjourned Meetings . A majority of the Managers present at
any meeting of the Board of Managers, including an adjourned
meeting, whether or not a quorum is present, may adjourn such
meeting to another time and place. At least one day’s notice
of any adjourned meeting of the Board of Managers shall be given to
each Manager whether or not present at the time of the adjournment,
if such notice shall be given by one of the means specified in
Section 8(f)(vii) hereof other than by mail, or at least three
days’ notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as
originally called.
(vii)
Notice Procedure . Subject to Sections 8(f)(iv) and 8(f)(vi)
hereof, whenever, under the provisions of any statute, the
Certificate of Formation or this Agreement, notice is required to
be given to any Manager, such notice shall be deemed given
effectively if given in person or by telephone, by mail addressed
to such Manager at such Manager’s address as it appears on
the records of the Company, with postage thereon prepaid, or by
telegram, telex, telecopy or any other lawful means (including
electronic transmission) addressed as aforesaid.
(viii)
Waiver of Notice . Whenever the giving of any notice is
required by statute, the Certificate of Formation or this
Agreement, a waiver thereof, in writing, signed by the person or
persons entitled to said notice, whether before or after the event
as to which such notice is required, shall be deemed equivalent to
notice. Attendance by a person at a meeting shall constitute a
waiver of notice of such meeting except when the person attends a
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business on the ground that
the meeting has not been lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Managers or a committee of the
Board of Managers need be specified in any written waiver of notice
unless so required by statute, the Certificate of Formation or this
Agreement.
(ix)
Organization . At each meeting of the Board of Managers a
chairman chosen by a majority of the Managers present, shall
preside. The Secretary shall act as secretary at each meeting of
the Board of Managers. In case the Secretary shall be absent from
any meeting of the Board of Managers, an Assistant Secretary shall
perform the duties of secretary at such meeting; and in the absence
from
