ex103to8k06898_07092008.htm


    Exhibit
10.3

    AMENDED
AND RESTATED

    LIMITED
LIABILITY COMPANY REGULATIONS

    OF

    MUSTANG
CAPITAL MANAGEMENT, LLC

     

    These
Amended and Restated Limited Liability Company Regulations (these “Regulations”)
of Mustang Capital Management, LLC (the “Company”),
are entered into as of July 9, 2008 (the “Effective
Date”), by and among John K. H. Linnartz (“Linnartz”)
and Western Mustang Holdings LLC, a Delaware limited liability company (“Holdings”),
as the members of the Company as of the Effective Date (each a “Member,”
and collectively, the “Members”)
and the persons who become Members of the Company in accordance with the
provisions hereof and whose names are set forth as Members on Schedule
A hereto.

     

    R E C I T A L S

     

    WHEREAS, the Company was
formed on November 7, 2002 pursuant to the Texas Limited Liability Company Act,
Tex. Rev. Civ. Stat. Ann. art. 1528n, as amended from time to time (the “Act”)
by Linnartz, as the sole initial Member of the Company;

     

    WHEREAS, Linnartz entered into
the Limited Liability Company Regulations of the Company, dated as of November
7, 2002 (the “Original
Regulations”), to set forth certain terms and conditions relating to the
operation of the Company’s business;

     

    WHEREAS, the Company serves as
the general partner of Mustang Capital Advisors, LP, a Texas limited partnership
(“MCA”), and
owns a 1% partnership interest therein;

     

    WHEREAS, because Linnartz is
the sole member of the Company and the sole limited partner of MCA, while MCA is
a partnership and Company is a limited liability company for state law purposes,
both MCA and the Company are disregarded entities for federal income tax
purposes, and for such purposes have until the Effective Date instead been a
sole proprietorship of Linnartz;

     

    WHEREAS, on the Effective
Date, Linnartz, Holdings and Western Sizzlin Corporation, a Delaware corporation
(“Western”),
are entering into a Purchase Agreement (the “Purchase
Agreement”), pursuant to which Linnartz will sell to Holdings a 50.5%
partnership interest in MCA and a 51% Membership Percentage (as defined below)
in the Company;

     

    WHEREAS, on the date hereof,
Linnartz and Holdings are entering into a Amended and Restated Limited
Partnership Agreement of MCA to admit Holdings as a limited partner of MCA and
to set forth the rights and obligations of the partners of MCA;

     

    WHEREAS, such sale and
assignment shall be considered for federal income tax purposes a sale by
Linnartz of assets of a sole proprietorship, and Linnartz and Holdings shall
then be considered to have contributed a portion of intangible assets purchased
in such deemed sale to the Company at the fair market values that appears across
from their respective names on Schedule
A hereto as Linnartz’s and Holdings’ initial Capital Contribution in the
Company;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS, upon such sale and
assignment, Holdings will become, for federal income tax purposes, the only
other partner of the Partnership, and the Partnership will thus thereafter be
considered a partnership for federal income tax purposes;

     

    WHEREAS, the Members now wish
to amend and restate the Original Regulations to admit Holdings as a Member and
to set forth the rights and obligations of the Members to be effective as of the
Effective Date; and

     

    WHEREAS, the Members do hereby
adopt these Regulations as the limited liability company regulations of the
Company to replace the Original Regulations;

     

    NOW, THEREFORE, in
consideration of the covenants and the promises made herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows.

     

    Section
1.                      Formation of the Company and
Agreement of the Members.

     

    (a)           The
Company was formed pursuant to the Act on November 7, 2002, by filing of the
Articles of Organization of the Company with the Secretary of State of the State
of Texas.

     

    (b)           For
and in consideration of the mutual covenants herein contained and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Members executing these Regulations hereby agree to the terms
and conditions of these Regulations, as it may from time to time be
amended.  It is the express intention of the Members that these
Regulations shall be the sole source of agreement of the parties and, except to
the extent a provision of these Regulations expressly incorporates federal
income tax rules by reference to sections of the Code or the Tax Regulations
(each as define below) or is expressly prohibited or ineffective under the Act,
these Regulations shall govern, even when inconsistent with, or different than,
the provisions of the Act or any other law or rule.  To the extent any
provision of these Regulations is prohibited or ineffective under the Act, these
Regulations shall be deemed to be amended to the least extent necessary in order
to make these Regulations effective under the Act.  In the event the
Act is subsequently amended or interpreted in such a way to make any provision
of these Regulations that was formerly invalid valid, such provision shall be
considered to be valid from the effective date of such interpretation or
amendment.

     

    Section
2.                      Membership
Percentage.  The “Membership
Percentage” of each Member as of the Effective Date shall be the
percentage set forth opposite such Member’s name on Schedule
A hereto.  The Membership Percentages shall be adjusted as
additional Capital Contributions (as defined in Section 5 of these Regulations)
are made by the Members, so that the Membership Percentage of each Member shall
be equal to the total capital contributions made by such Member after the
Effective Date over the total capital contributions made by all Members to the
Company after the Effective Date.  From time to time the Members shall
amend Schedule
A to reflect new Membership Percentages and aggregate Capital
Contributions (as defined in Section 5 of these Regulations).

     

    
      
        
        

      

      
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    Section
3.                      Registered Office and
Registered Agent.  The street address of the registered office
of the Company shall be, 1506 McDuffie Street, Houston, Texas 77019, and the
name of its registered agent at such address is John K. H.
Linnartz.

     

    Section
4.                      Company
Purposes.  The purposes of the Company shall be to conduct the
following activities:  (i) to hold a general partnership interest in
MCA and (ii) any other purposes permitted by law.

     

    Section
5.                      Tax Characterization and
Certain Defined Terms.  It is intended that, as of the
Effective Date, the Company be characterized and treated as a partnership for,
and solely for, federal, state and local income tax purposes.  For
such purpose, (i) the Company shall be subject to all of the provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code, (ii) all references to a
“Partner,”
to “Partner”
and to the “Partnership”
in these Regulations (including the provisions of Schedule
B hereto) and in the provisions of the Code and Tax Regulations cited in
these Regulations shall be deemed to refer to a Member, the Members and the
Company, respectively.  In addition, the following terms shall have
the following meanings:

     

    (a)           “Adjusted Capital
Account Balance” shall mean with respect to any Member, the balance in
such Member’s Capital Account as of the end of the relevant Fiscal Year, after
giving effect to the following adjustments:

     

    (i)           credit
to such Capital Account any amounts which such Member is obligated to restore,
because of a promissory note to the Company or otherwise pursuant to Section
1.704-1(b)(2)(ii)(c) of the Regulations, or is deemed to be obligated to restore
pursuant to the penultimate sentence in each of Sections 1.704-2(g)(1) and
1.704-2(i)(5) of the Regulations; and

     

    (ii)           debit
to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4);
1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.

     

    This
definition of Adjusted Capital Account Balance is intended to comply with the
“alternative economic effect” test of Section 1.704-1(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.

     

    (b)           “Affiliate”
means with respect to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with such Person.

     

    (c)           “Applicable
Amount” means a dollar amount equal to (i) the aggregate amount of assets
under management by MCA at the date of the Put Event causing the determination
(such value being determined in accordance with past practices of MCA at the
Effective Date and consistently applied), multiplied by (ii) $20,593 as a
percentage of the aggregate amount of assets under management by MCA at the
Effective Date, with such result multiplied by Linnartz’s Membership Percentage
at the date of the Put Event.

     

    
      
        
        

      

      
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    (d)           “Available
Cash” means, at any given date, cash on hand of the Company after
provision for payment of all outstanding and unpaid current obligations of the
Company as of such time and the creation of any reserves reasonably deemed
necessary by the Manager.

     

    (e)           “Capital
Account” means the account established and maintained for each Member
pursuant to Section 7 of these Regulations.

     

    (f)           “Capital
Contribution” means with respect to any Member, the amount of money and
the Gross Asset Value of any property (other than money) contributed to the
Company by such Member, net of liabilities encumbering such contributed property
that the Company is considered to assume or take subject to under
Section 752 of the Code.

     

    (g)           “Code”
means the Internal Revenue Code of 1986, as amended.

     

    (h)           “Depreciation”
means each Fiscal Year or other period, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an
asset for such year or other period, except that if the Gross Asset Value of an
asset differs from its adjusted basis for federal income tax purposes at the
beginning of such year or other period, except as required by Section 1.704-3(d)
of the Regulations, Depreciation shall be an amount which bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the
Manager.

     

    (i)           “Disability”
means the failure of Linnartz, by reason of accident, illness, incapacity or
other disability, to perform his duties or fulfill his obligations as the sole
Manager of the Company, with or without reasonable accommodation, for a
cumulative total of 60 days, whether or not consecutive, within any 12-month
period.

     

    (j)           “Expenses”
means all reasonable attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
participating, or being or preparing to be a witness in a Proceeding. Expenses
also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for, and
other costs relating to any cost bond, supersedeas bond, or other appeal bond or
its equivalent.

     

    (k)           “Fiscal
Year” means the calendar year.

     

    (l)           “Gross Asset
Value” means with respect to any asset, the asset’s adjusted basis for
federal income tax purposes, except as follows:

     

    (i)           the
initial Gross Asset Value of any asset contributed by a Member to the Company
shall be the gross fair market value of such asset, as determined by the
contributing Member and the Manager; and

     

    
      
        
        

      

      
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    (ii)           the
Gross Asset Values of all Company assets shall be adjusted to equal their
respective gross fair market values, as reasonably determined by the Manager, at
each of the following times: (i) the acquisition of an additional interest in
the Company by any new or existing Member for more than a de minimis
contribution; (ii) the distribution by the Company to a Member of more than a de
minimis amount of Company property as consideration for an interest in the
Company; (iii) the grant of an interest in the Company (other than a de minimis
interest) as consideration for the provision of services to or for the benefit
of the Company by any new or existing Member; (iv) as permitted under Section
1.704-1(b)(2)(iv)(f)(5)(iv) if the Company meets the requirements of such
provision; and (v) the liquidation of the Company within the meaning of Section
1.704-1(b)(2)(ii)(g) of the Regulations; provided, however, that the adjustments
pursuant to clauses (i), (ii), (iii) and (iv) above shall be made only if the
General Member reasonably determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the Members in the
Company; and

     

    (iii)           the
Gross Asset Value of any Company asset distributed to any Member shall be the
gross fair market value of such asset on the date of distribution as reasonably
determined by the Manager and, in the case of the distribution of a Company
asset to the Manager, as approved by all of the Members; and

     

    (iv)           the
Gross Asset Values of Company assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such assets pursuant to
Sections 734(b) or 743(b) of the Code, but only to the extent that such
adjustments are taken into account in determining the Capital Accounts pursuant
to Sections 1.704-1(b)(2)(iv)(m) of the Regulations; provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the
extent the Manager reasonably determines that an adjustment pursuant to
subsection (b) of this definition is necessary or appropriate in connection with
a transaction that would otherwise result in an adjustment pursuant to this
subsection (d); and

     

    (v)           if
the Gross Asset Value of an asset has been determined or adjusted pursuant to
clause (a), (b) or (d) of this definition, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing Profits and Losses.

     

    (m)           “Hypothetical
Liquidation Amount” means the amount expressed in dollars that Linnartz
would receive if, on the date of the particular Put Event, the Company sold all
of its tangible assets at their fair market values for cash, paid its
liabilities and distributed the remaining amount pursuant to Section 18(b)(iii)
after having allocated all taxable income, gain, loss and deduction for such
Fiscal Year, including that from such deemed sale, and having made all Capital
Account adjustments for such Fiscal Year.  For purposes of calculating
such Hypothetical Liquidation Amount:

     

    (i)           all
securities and other assets owned indirectly by the Company shall be considered
owned directly by the Company in proportion to the Company’s interest in the
entity holding such assets, calculated at the date of the particular Put Event,
consistently with the method used for calculating similar amounts in connection
with the Contributed Securities (as defined in the Amended and Restated Limited
Partnership Agreement of MCA); and

     

    
      
        
        

      

      
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    (ii)           the
fair market value of securities owned directly or indirectly by the Company
shall be determined at the date of the particular Put Event, in accordance with
the applicable valuation methodologies described in Section 3.7(a) of the
Purchase Agreement.

     

    (n)           “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither presently is, nor in the past five
years has been, retained to represent: (i) the Company or the Manager in any
matter material to either such party (other than with respect to matters
concerning the Manager under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, “Independent
Counsel” shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Manager in an action to determine the
Manager’s rights under Section 2 of these Regulations.  The Company
shall pay the reasonable fees of the Independent Counsel referred to
above.

     

    (o)           “Imputed Tax
Rate” means, for any Fiscal Year, 40%.

     

    (p)           “Person”
means any individual, partnership, limited liability company, corporation,
unincorporated organization or association, trust (including the trustees
thereof in their capacity as such) or other entity.

     

    (q)           “Proceeding”
means any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought by or in
the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Manager was, is or will be involved as
a party or otherwise, by reason of the fact that the Manager is or was a
manager, officer or director of the Company, by reason of any action taken by
him or it or of any inaction on his or its part while acting as a manager,
officer or director of the Company, or by reason of the fact that he is or was
serving at the request of the Company as a manager, director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture, trust or
other entity; in each case whether or not he is acting or serving in any such
capacity at the time any liability or expense is incurred for which
indemnification can be provided under Section 12 of these
Regulations.

     

    (r)           “Profits and
Losses” means, for each Fiscal Year or other period, an amount equal to
the Company’s taxable income or loss for such year or period, determined in
accordance with Code Section 703(a) (for this purpose, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:

     

    (i)           Any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Profits or Losses shall be added to such taxable
income or loss;

     

    (ii)           Any
expenditures of the Company described in Code Section 705(a)(2)(B) or treated as
Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits
or Losses, shall be subtracted from such taxable income or loss;

     

    
      
        
        

      

      
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    (iii)           In
the event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraph (ii) or subparagraph (iii) of the definition of Gross Asset Value
herein, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing Profits or
Losses;

     

    (iv)           Gain
or loss resulting from any disposition of Company property with respect to which
gain or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of, notwithstanding
that the adjusted tax basis of such property differs from its Gross Asset
Value;

     

    (v)           In
lieu of the depreciation, amortization and other cost recovery deductions taken
into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such fiscal year or other period, computed in
accordance with the terms of this Agreement;

     

    (vi)           Notwithstanding
any other provision hereof, any items which are specially allocated pursuant to
this Agreement shall not be taken into account in computing Profits or Losses;
and

     

    (vii)           To
the extent an adjustment to the adjusted tax basis of any Company asset pursuant
to Section 734 of the Code is required pursuant to Section
1.704-1(b)(2)(iv)(m)(4) of the Regulations to be taken into account in
determining Capital Accounts as a result of a distribution other than in
liquidation of a Member’s Interest, the amount of such adjustment shall be
treated either as an item of gain (if the adjustment increases the basis of the
asset) or an item of loss (if the adjustment decreases the basis of the asset)
from the disposition of the asset.

     

    (s)           “Tax
Distribution” means the product of (i) the net positive sum, if any, of
the items required to be shown on lines 1-11 of Schedule K-1 (Form 1065) for
each Member for such Fiscal Year, and (ii) the Imputed Tax Rate.

     

    (t)           “Tax
Regulations” shall have the meaning given that term in Schedule
B hereto.

     

    (u)           “Taxable
Year” or “Fiscal
Year” shall mean the calendar year, or a period beginning on the date the
Company is treated as coming into existence for federal income tax purposes and
ending on the first December 31 following such date, or a period ending on a
date the Company terminates for federal income tax purposes and commencing on
the immediately preceding January 1.

     

    Section
6.                      Capital
Contributions.

     

    (a)           Each
Member has made an initial Capital Contribution (in the case of Holdings, shall
be deemed to have made a Capital Contribution by virtue of its purchase of a 51%
Membership Percentage from Linnartz pursuant to the Purchase Agreement) to the
Company in the amount set forth opposite such Member’s name on Schedule
A hereto which the Members agree represents a proportion of intangible
assets and is the fair market value of such contributed intangible
assets.  Except as set forth below in Section 6(b), no Member shall be
required to make an additional Capital Contribution.

     

    
      
        
        

      

      
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    (b)           Notwithstanding
Section 6(a) hereof, if in good faith the Manager (as defined below) determines
that the Company requires additional funds to operate the business, the Manager
shall provide written notice to the Members setting forth (i) the aggregate
amount required, (ii) the purpose for which such additional funds are required,
(iii) each Member’s pro rata portion of the aggregate amount required from all
Members, which shall be calculated based on each Member’s Membership Percentage,
and (iv) whether such funds shall be in the form of an additional Capital
Contribution or a loan to the Company.  Upon receipt of such written
notice, each Member shall have fifteen (15) days to make the required
contribution.  If a Member does not make the required contribution,
the other Member shall be permitted to make an additional Capital Contribution
or a loan to the Company or advance money on his or its behalf, unilaterally,
provided, however, that if a
Member makes an additional Capital Contribution unilaterally after having
received such written notice from the Manager, the non-contributing Member(s)
shall be ratably diluted.  To the extent a Member makes an additional
Capital Contribution, the Manager shall update Schedule
A hereto in order to reflect such additional Capital
Contribution.

     

    Section
7.                      Capital
Accounts.  Based upon the Members’ initial Capital
Contributions, the initial Capital Account of each Member is set forth on Schedule
A hereto.  A separate Capital Account shall be maintained for
each Member throughout the term of the Company in accordance with the rules of
Section 1.704-1(b)(2)(iv) of the Tax Regulations as in effect from time to time
and, to the extent not inconsistent with the Tax Regulations, the Capital
Account maintenance provisions of the definition of “Gross Asset Value” and the
following provisions:

     

    (a)           To
each Member’s Capital Account there shall be credited (i) the amount of money
contributed by such Member to the Company (including liabilities of the Company
assumed by such Member as provided in Section 1.7041-(b)(2)(iv)(c) of the Tax
Regulations); (ii) the fair market value of any property (as determined by the
Manager in his sole discretion) contributed to the Company by such Member (net
of liabilities secured by such contributed property that the Company is
considered to assume or take subject to under Section 752 of the Code); and
(iii) such Member’s share of Profits (as defined below) and items of income and
gain that are specially allocated.

     

    (b)           To
each Member’s Capital Account there shall be debited (i) the amount of money
distributed to such Member by the Company (including liabilities of such Member
assumed by the Company as provided in Section 1.7041-(b)(2)(iv)(c) of the Tax
Regulations) other than amounts that are in repayment of debt obligations of the
Company to such Member; (ii) the fair market value of property (as determined by
the Manager in his sole discretion) distributed to such Member (net of
liabilities secured by such distributed property that such Member is considered
to assume or take subject to under Section 752 of the Code); and (iii) such
Member’s share of Losses (as defined below) or items of loss or deduction that
are specially allocated.

     

    
      
        
        

      

      
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    Section
8.                      Allocation of Profits and
Losses.

     

    (a)           Except
as otherwise provided in this Agreement, Profits and Losses for each Fiscal Year
or Interim Period shall be allocated to the Members in proportion to their
Membership Percentages.  Notwithstanding the foregoing, in the Fiscal
Year in which the Company is liquidated pursuant to Section 18 and any Fiscal
Years thereafter, Profits and Losses shall be allocated to the Members in
whatever manner (including allocations of items of income, gain, loss or
deduction) so that after such allocations and all other Capital Accounts
adjustments for such year the respective Capital Account balances of the Members
shall be in such ratios so to as nearly as possible cause the distributions
pursuant to Section 18(b)(iii) to be in accordance with the Membership
Percentages of the Members.

     

    (b)           In
the event Section 704(c) of the Code requires allocations of Profits and Losses
in a manner different than that set forth above, the provisions of Section
704(c) of the Code and the Tax Regulations thereunder shall control such
allocations among the Members.  Any item of Company income, gain, loss
and deduction with respect to any property that has been contributed by a Member
to the capital of the Company that is required or permitted to be allocated to
such Member for income tax purposes under Section 704(c) of the Code so as to
take into account the variation between the tax basis of such property and its
fair market value at the time of his or its contribution shall be allocated
solely for income tax purposes using any reasonable method permitted under
Section 704(c) of the Code and the Tax Regulations that is selected by the
Manager.

     

    (c)           The
provisions of these Regulations relating to the allocation of Profits and Losses
and the maintenance of Capital Accounts are intended to comply with Section
704(b) of the Code, and shall be interpreted and applied in a manner consistent
with such section of the Code and Tax Regulations promulgated thereunder and in
accordance with Schedule
B hereto.  In the event the Manager shall determine that it is
prudent, necessary or appropriate to modify the allocation of Profits and Losses
and/or the manner in which the Capital Accounts or any debits or credits thereto
(including, without limitation, debits or credits relating to nonrecourse
liabilities or liabilities that are incurred by contributed or distributed
property or that are assumed by the Company or any Member) are computed in order
to comply with such Code section and Tax Regulations, the Manager may make such
modification (including modification to these Regulations, if necessary or
appropriate).  The Manager also shall make any appropriate
modifications if unanticipated events might otherwise cause these Regulations
not to comply with the foregoing Code section and Tax Regulations.

     

    (d)           No
amount of Losses, or items thereof, shall be allocated to any Member to the
extent that any such allocation would cause such Member to have or increase the
amount of an existing deficit in such Member’s Adjusted Capital Account balance
at the end of any Fiscal Year.  All Losses in excess of the limitation
set forth in this Section 8(d) shall be allocated among such other Members, who
have positive Adjusted Capital Account balances, in proportion to their
Membership Percentages until each Member’s Adjusted Capital Account balance is
reduced to zero.  Thereafter, any remaining Losses shall be allocated
to the Members in proportion to their relative interests in the Company as
required by Section 704(b) of the Code.

     

    
      
        
        

      

      
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    Section
9.                      Other Allocation
Rules.

     

    (a)           For
purposes of determining the Profits, Losses, or any other item allocable to any
period (including allocations to take into account any changes in any Member’s
Membership Percentage during a Fiscal Year and any transfer of any interest in
the Company), Profits, Losses, and any such other item shall be determined on a
daily, monthly, or other basis by the Manager using any permissible method under
Section 706 of the Code and the Tax Regulations thereunder.

     

    (b)           The
Members are aware of the income tax consequences of the allocations made by
Sections 7 and 8 hereof and hereby agree to be bound by the provisions of
Sections 7 and 8 hereof in reporting their shares of Company income and loss for
income tax purposes.

     

    Section
10.                                Distributions.

     

    (a)           Distributions
of Available Cash shall be made pro rata to the Members in accordance with their
Membership Percentages at such time or times as the Manager shall determine
consistent with the provisions of these Regulations.

     

    (b)           Notwithstanding
Section 10(a), prior to any winding up of the Company and within a reasonable
time after the end of each Fiscal Year, the sole manager shall, to the extent
permitted by the Act, and to the extent the Company has legally available funds
therefor, cause the Company to make cash distributions to each of the Members in
an amount not less than the Tax Distribution which shall be considered an
advance of distributions to be made pursuant to Section 10(a) and
18(b)(iii).

     

    Section
11.                                Management by
Manager.  All Members hereby agree that the powers of the
Company shall be exercised by or under the authority of, and the business
affairs of the Company shall be managed under the direction of a sole manager
(the “Manager”).  Except
as expressly provided herein or as otherwise required by law, the Manager shall
have complete and exclusive control of the management of the Company’s business
and affairs, and the Members, other than the Manager, shall have no right to
participate in the management of the conduct of the Company’s business and
affairs nor any power or authority to act for or on behalf of the Company in any
respect whatsoever.  Except as otherwise specifically provided in
these Regulations, the Manager shall have the right, power and authority on
behalf of the Company and in his or its name to execute documents or other
instruments and exercise all of the rights, power and authority of the Company
under the Act, subject only to any express limitations set forth in these
Regulations.  The initial Manager of the Company is
Linnartz.  The Manager shall hold office until his successor has been
elected by those Members whose Membership Percentages in the aggregate represent
a majority of the Membership Percentages owned by all of the Members, or until
his earlier death, resignation, or removal; provided, however, that any
successor so elected and any such removal of Linnartz shall not be effective
until 60 days after Linnartz receives written notice of same.

     

    
      
        
        

      

      
        -10-

        
          

        

      

      
        
        

      

    

     

    Section
12.                                Exculpation and
Indemnification of the Manager.

     

    (a)           The
Manager and his employees, agents, authorized representatives and Affiliates
shall not be liable or accountable, in damages or otherwise, to the Company or
to any Member for any thing the Manager may do or refrain from doing on behalf
of the Company, except in the case of the Manager’s willful breach of a material
provision of these Regulations or gross negligence in connection with the
business and affairs of the Company.

     

    (b)           Subject
to Section 12(c) below, the Company shall indemnify the Manager, if the Manager
was or is or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant in, any
Proceeding by reason of (or arising in part out of) any event or occurrence
related to the fact that the Manager is or was a director, officer, employee,
controlling person, fiduciary or other agent or affiliate of the Company or any
subsidiary of the Company, or is or was (or is alleged to be or to have been)
serving at the request of the Company as a director, officer, employee,
controlling person, fiduciary or other agent or affiliate of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of the
Manager while serving in such capacity, including, without limitation, under the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, or any other United States federal or state law or regulation, at
common law or otherwise, against (i) any and all Expenses (as defined below),
and (ii) all judgments, penalties, fines and amounts paid in settlement, in each
case actually and reasonably incurred by the Manager, or on his behalf, in
connection with any such Proceeding or any claim, issue or matter
therein.

     

    (c)           It
shall be a condition of the required indemnification of the Manager pursuant to
subsection 12(b) above that:

     

    (i)           
the Manager (x) acted in good faith and (y) reasonably believed that
his conduct was (A) in the case of the Manager in his or its official
capacity, in the Company’s best interests or (B) in all other cases, at
least not opposed to the Company’s best interests; and

     

    (ii)           a
determination that the foregoing standard of conduct necessary for
indemnification has been met shall have been made by Independent
Counsel.

     

    (d)           In
addition, the Company will advance, before the final disposition of any
Proceeding, all Expenses incurred by the Manager in connection with any
Proceeding, within 30 days after the Company’s receipt of a statement or
statements from the Manager requesting such advance or advances from time to
time.  Such statement or statements shall reasonably evidence the
Expenses and include or be preceded by an undertaking by or on behalf of the
Manager to repay any Expenses advanced if it is ultimately determined that the
Manager is not entitled to be indemnified against such Expenses.  Any
advances and undertakings to so repay shall be unsecured and
interest-free.

     

    (e)           To
obtain indemnification under this Section 12, the Manager shall submit to the
Company a written request, including therein or therewith such documentation and
information as is reasonably available to the Manager and is reasonably
necessary to determine whether and to what extent the Manager is entitled to
indemnification.  Independent Counsel selected by the Manager to make
shall make a determination that the standard of conduct set forth in Section
12(c)(i) has been met no later than 90 days after such written request has been
received by the Company.

     

    
      
        
        

      

      
        -11-

        
          

        

      

      
        
        

      

    

     

    (f)           The
rights granted pursuant to this Section 12 shall be deemed contract rights and
shall inure to the benefit of any Person entitled to indemnification and
advancement of Expenses under this Section 12 regardless of whether such Person
has executed or adopted these Regulations.  No amendment, modification
or repeal of this Section 12 shall have the effect of limiting or denying any
such rights with respect to actions taken or proceedings arising prior to any
such amendment, modification or repeal.

     

    (g)           Notwithstanding
any other provision of this Section 12, to the extent that the Manager has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, or in the defense of any Proceeding or
any claim, issue or matter therein, the Manager shall be indemnified against all
Expenses incurred by the Manager in connection therewith.

     

    Section
13.                                Tax Matters
Partner.  The Manager shall be the Tax Matters Partner of the
Company pursuant to Section 6231(a)(7) of the Code.  Such Member shall
not resign as the Tax Matters Partner unless, on the effective date of such
resignation, the Company has designated another Member as Tax Matters Partner
and such Member has given his or its consent in writing to its appointment as
Tax Matters Partner.  The Tax Matters Partner shall receive no
additional compensation from the Company for its services in that capacity, but
all expenses incurred by the Tax Matters Partner in such capacity shall be borne
by the Company.  The Tax Matters Partner is authorized to employ such
accountants, attorneys and agents as it, in his or its sole discretion,
determines is necessary to or useful in the performance of its
duties.  In addition, such Member shall serve in a similar capacity
with respect to any similar tax related or other election provided by state or
local laws.

     

    Section
14.                                Powers of the
Members.  The Members, other than the Manager, shall not take
part in the management of the Company’s business nor transact any business for
the Company in their capacity as Members, nor shall they have power to sign for
or to bind the Company.

     

    Section
15.                                Transfer of a Company
Interest.  No Member may transfer any portion of his or its
interest in the Company without the prior written unanimous consent of the other
Members, which consent may be given or withheld in the sole and absolute
discretion of the Member, provided, however, that any
Member may transfer all or a portion of his or its interest in the Company to an
Affiliate of such Member or by last will and testament or by operation of
law.

     

    Section
16.                                Dissolution and Term of the
Company.  The Company shall dissolve upon any act or event
requiring dissolution under the Act.  Subject to an earlier
dissolution as described in the preceding sentence, the Company shall have a
perpetual duration.

     

    
      
        
        

      

      
        -12-

        
          

        

      

      
        
        

      

    

     

    Section
17.                                Company Purchase
Obligations.

     

    (a)           Death, or
Disability.                                                      In
the event of Linnartz’s death or Disability, then Holdings shall, within 20 days
thereafter, purchase from Linnartz’s legal representative all of Linnartz’s
Membership Percentage, at the price and on the terms set forth
below.

     

    (b)           Earnout.                      At
any time after Holdings has received aggregate distributions from either or both
of MCA and the Company of an amount equal to $1,050,241 (the “Earnout”),
then Linnartz shall have the right to require Holdings to purchase from Linnartz
all of Linnartz’s Membership Percentage, at the price and on the terms set forth
below, by delivering a written notice to Holdings setting forth the price, the
form of consideration and the closing date of such purchase, all in accordance
with the terms set forth below (such written notice, a “Put
Notice”).

     

    (c)           Linnartz Ceases to be the
Manager of the Company.  If
at any time prior to the Earnout, Linnartz is removed or is otherwise replaced
as the Manager of the Company, other than due to his death, disability or
resignation, then Linnartz shall have the right to require Holdings to purchase
from Linnartz all of Linnartz’s Membership Percentage, at the price and on the
terms set forth below, by delivering a Put Notice to Holdings.

     

    The
events described in (a), (b) and (c) above are collectively referred to as the
“Put
Events.”  The closing of the purchase and sale of Linnartz’s
Membership Percentage (i) under shall be not less than 30 nor more than 60 days
after the date the designated event occurs, and (ii) under (b) or (c) above
shall be held on such date and at such time as is specified in the Put Notice,
except the date so specified must be not less than 30 nor more than 60 days
after the date Holdings receives such Put Notice.

     

    The price
Holdings shall pay for Linnartz’s Membership Percentage in connection with a
purchase pursuant to (a), (b) or (c) above shall equal the sum of (i) the
Applicable Amount, and (ii) the Hypothetical Liquidation Amount, both determined
at the date of the applicable Put Event.  At the closing of the
purchase and sale of Linnartz’s Membership Percentage, Holdings shall pay to
Linnartz:

     

    (x)           the
Applicable Amount 28.56% in cash and 71.44% in common stock of Western or its
successor-in-interest, with such shares delivered at the closing of the purchase
valued at the average of the closing prices of such common stock during the 10
trading days prior to the date of the Put Event; and

     

    (y)           the
Hypothetical Liquidation Amount in cash.

     

    Section
18.                                Effect of Dissolution;
Distribution of Assets; Winding Up.

     

    (a)           Upon
dissolution, the Company shall not be terminated and shall continue until the
winding up of the affairs of the Company is completed and a certificate of
cancellation has been filed with the Office of the Secretary of State of the
State of Texas.

     

    
      
        
        

      

      
        -13-

        
          

        

      

      
        
        

      

    

     

    (b)           Upon
the winding up of the Company, the Manager (or such Person(s) designated by the
Manager) shall take full account of the assets and liabilities of the Company,
shall liquidate the assets (unless the Manager determines that a distribution of
any Company property in-kind would be more advantageous to the Members than the
sale thereof, in which case the adjustments to the Members’ respective Capital
Account pursuant to Section 7 shall be made immediately prior to such
distribution) as promptly as is consistent with obtaining the fair value
thereof, and shall apply and distribute the proceeds therefrom in the following
order:

     

    (i)           first,
to the payment of the debts and liabilities of the Company to creditors,
including Members who are creditors, to the extent permitted by law, in
satisfaction of such debts and liabilities, and to the payment of necessary
expenses of liquidation;

     

    (ii)           second,
to the setting up of any reserves that the Manager may deem necessary or
appropriate for any anticipated obligations or contingencies of the Company
arising out of or in connection with the operation or business of the
Company.  Such reserves may be paid over by the Manager to an escrow
agent or trustee selected by the Manager, to be disbursed by such escrow agent
or trustee in payment of any of the aforementioned obligations or contingencies
and, if any balance remains at the expiration of such period as the Manager
shall deem advisable, shall be distributed by such escrow agent or trustee in
the manner hereinafter provided; and

     

    (iii)           the
balance remaining, if any, to the Members in accordance with their positive
Capital Account balances, after giving effect to all contributions,
distributions and allocations for all periods.  All distributions
pursuant to this Section 18(b)(iii) shall be made in accordance with Tax
Regulations Section 1.704-1(b)(2)(ii)(b)(2) including the timing requirements
thereof.

     

    (c)           Liquidation
proceeds shall be in cash or property (which need not be distributed
proportionately) or partly in both, as determined by the Manager.  In
the case of a distribution of property, the Manager shall endeavor, to the
extent feasible, to distribute to each Member the property which such Member had
previously contributed to the Company.  No Member shall be obligated
to restore a negative balance in its Capital Account following the distribution
of liquidation proceeds.

     

    (d)           If
at the time of liquidation the Manager shall determine that an immediate sale of
some or all Company property would cause undue loss to the Members, the Manager
may, in order to avoid such loss, defer liquidation.

     

    (e)           Upon
the completion of the winding up of the Company, a certificate of cancellation
shall be delivered for filing by the Company to the Secretary of State of the
State of Texas.  The certificate of cancellation shall set forth the
information required by the Act.  The winding up of the Company shall
be completed when all debts, liabilities and obligations of the Company have
been paid and discharged or reasonably adequate provision therefor has been
made, and all of the remaining property of the Company has been distributed to
the Members.

     

    
      
        
        

      

      
        -14-

        
          

        

      

      
        
        

      

    

     

    Section
19.                                Amendment.  These
Regulations may be amended by the unanimous written consent of all
Members.

     

    Section
20.                                Entire
Agreement.  These Regulations, including the Exhibits
hereto,  which by this reference are incorporated herein and made a
part hereof, constitute the entire agreement and understanding among the Members
with respect to the Company and supersede all prior agreements and
understandings, both written and oral, with respect to that
subject.

     

    Section
21.                                Governing
Law.  These Regulations shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the principle
of conflict of laws thereof and such federal laws as would otherwise
apply.

     

    


    


    


    


    


    


    [The
remainder of this page is intentionally left blank.]

     

    
      
        
        

      

      
        -15-

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have executed and delivered these
Regulations as of the date first above written.

     

    


    


    
    

    
      	 	      
               /s/ John K. H.
      Linnartz

            
	
               
      

            	
              John
      K. H. Linnartz

            


    

     

     

    
      
        	 
      	
                WESTERN
      MUSTANG HOLDINGS LLC

              
	 	 
	 	 
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/ Sardar Biglari

                

              
	 
      	 
      	
                Name:

              	
                Sardar
      Biglari

              
	 
      	 
      	
                Title:

              	
                Chief
      Executive Officer

              


      



     

     

     

     

     

     

     

     

     

     

     

     

     

    
      Signature
Page to

      Amended
and Restated

      Limited
Liability Company Regulations

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    Schedule
A

    


    


    
      	
               

              Member

               

              John
      K. H. Linnartz

            	 	
              Initial Membership 

              Percentage

               

              49.00%

            	 	
              Initial Capital 

              Contribution

               

              $10,091.00

            	 	
              Initial Capital 

              Account

               

              $10,091.00

            
	
              Western
      Mustang

              Holdings
      LLC

            	 	
              51.00%

               

               

            	 	
              $10,502.00

               

               

            	 	
              $10,502.00

               

               

            
	
              Totals

            	 	
              100.00%

            	 	
              $20,593.00

            	 	
              $20,593.00

            


    

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    Schedule
B

    


    


    Special
Allocations.  The following special allocations shall be made
in the following order:

     

    
      	
              1.

            	
              Minimum Gain
      Chargeback.  Except as otherwise provided in Section
      1.704-2(f) of the Tax Regulations, if there is a net decrease in
      Partnership Minimum Gain during any Fiscal Year, each Member shall be
      specially allocated items of Company income and gain for such Fiscal Year
      (and, if necessary, subsequent Fiscal Years) in an amount equal to such
      Member’s share of the net decrease in Partnership Minimum Gain, determined
      in accordance with Section 1.704-2(g) of the Tax
      Regulations.  Allocations pursuant to the previous sentence
      shall be made in proportion to the respective amounts required to be
      allocated to each Member pursuant thereto.  The items to be so
      allocated shall be determined in accordance with Sections 1.704-2(f)(6)
      and 1.704-2(j)(2) of the Tax Regulations.  This paragraph is
      intended to comply with the minimum gain chargeback requirement in Section
      1.704-2(f) of the Tax Regulations and shall be interpreted consistently
      therewith.

            


    

     

    
      	
              2.

            	
              Partner Minimum Gain
      Chargeback.  Except as otherwise provided in Section
      1.704-2(i)(4) of the Tax Regulations, if there is a net decrease in
      Partner Nonrecourse Debt Minimum Gain attributable to a Partner
      Nonrecourse Debt during any Fiscal Year, each Member who has a share of
      the Partner Nonrecourse Debt Minimum Gain attributable to such Partner
      Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of
      the Tax Regulations, shall be specially allocated items of Company income
      and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years)
      in an amount equal to such Member’s share of the net decrease in Partner
      Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
      Debt, determined in accordance with Section 1.704-2(i)(4) of the Tax
      Regulations.  Allocations pursuant to the previous sentence
      shall be made in proportion to the respective amounts required to be
      allocated to each Member pursuant thereto.  The items to be so
      allocated shall be determined in accordance with Sections 1.704-2(i)(4)
      and 1.704-2(j)(2) of the Tax Regulations.  This paragraph (2) is
      intended to comply with the minimum gain chargeback requirement in Section
      1.704-2(i)(4) of the Tax Regulations and shall be interpreted consistently
      therewith.

            


    

     

    
      	
              3.

            	
              Qualified Income
      Offset.  In the event any Member unexpectedly receives
      any adjustments, allocations, or distributions described in Section
      1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5), or Section
      1.704-1(b)(2)(ii)(d)(6) of the Tax Regulations, items of Company income
      and gain shall be specially allocated to the Member in an amount and
      manner sufficient to eliminate, to the extent required by the Tax
      Regulations, the Adjusted Capital Account Deficit of the Member as quickly
      as possible, provided, that an allocation pursuant to this paragraph (3)
      shall be made only if and to the extent that the Member would have an
      Adjusted Capital Account Deficit after all other allocations provided for
      in this schedule have been tentatively made as if this paragraph (3) were
      not in this schedule.

            


    

     

    
      
        
        

      

      
        B-1

        
          

        

      

      
        
        

      

    

     

    
      	
              4.

            	
              Gross Income
      Allocation.  In the event any Member has a deficit
      Capital Account at the end of any Fiscal Year which is in excess of the
      sum of the amounts such Member is obligated to restore pursuant to the
      terms of these Regulations or is deemed to be obligated to restore
      pursuant to the penultimate sentences of Sections 1.704 2(g)(1) and 1.704
      2(i)(5) of the Tax Regulations, each such Member shall be specially
      allocated items of Company income and gain in the amount of such excess as
      quickly as possible, provided, that an allocation pursuant to this
      paragraph (4) shall be made only if and to the extent that such Member
      would have a deficit Capital Account in excess of such sum after all other
      allocations provided for in this schedule have been made as if paragraph
      (3) and this paragraph (4) were not in these
  Regulations.

            


    

     

    
      	
              5.

            	
              Nonrecourse
      Deductions.  Nonrecourse Deductions for any Fiscal Year
      shall be specially allocated among the Members in proportion to their
      Membership Percentages.

            


    

     

    
      	
              6.

            	
              Partner Nonrecourse
      Deductions.  Any Partner Nonrecourse Deductions for any
      Fiscal Year shall be specially allocated to the Member who bears the
      economic risk of loss with respect to the Partner Nonrecourse Debt to
      which such Partner Nonrecourse Deductions are attributable in accordance
      with Section 1.704-2(i)(1) of the Tax
  Regulations.

            


    

     

    
      	
              7.

            	
              Mandatory Allocations
      Under Section 704(c) of the Code.  In the event Section
      704(c) of the Code or Section 704(c) of the Code principles applicable
      under Section 1.704 1(b)(2)(iv) of the Tax Regulations require allocations
      of Profits or Losses in a manner different than that set forth above, the
      provisions of Section 704(c) of the Code and the Tax Regulations
      thereunder shall control such allocations among the
      Members.  Any item of Company income, gain, loss and deduction
      with respect to any property (other than cash) that has been contributed
      by a Member to the capital of the Company or which has been revalued for
      Capital Account purposes pursuant to Section 1.704 l (b)(2)(iv) of the Tax
      Regulations) and which is required or permitted to be allocated to such
      Member for income tax purposes under Section 704(c) of the Code so as to
      take into account the variation between the tax basis of such property and
      its fair market value at the time of its contribution shall be allocated
      solely for income tax purposes using the traditional
    method.

            


    

     

    8.           Definitions:

     

    a.           “Adjusted Capital
Account Deficit” shall mean, with respect to any Member, the deficit
balance, if any, in such Member’s Capital Account as of the end of the relevant
Fiscal Year, after giving effect to the following adjustments:

     

    (1)           Credit
to such Capital Account the minimum gain chargeback that such Member is deemed
to be obligated to restore pursuant to the penultimate sentences of Sections
1.704 2(g)(1) and 1.704 2(i)(5) of the Tax Regulations; and

     

    (2)           Debit
to such Capital Account the items described in Sections 1.704 1(b)(2)(ii)(d)(4),
1.704 1(b)(2)(ii)(d)(5), and 1.704 1(b)(2)(ii)(d)(6) of the Tax
Regulations.

     

    The
foregoing definition of Adjusted Capital Account Deficit is intended to comply
with the provisions of Section 1.704 1(b)(2)(ii)(d) of the Tax Regulations and
shall be interpreted consistently therewith.

     

    
      
        
        

      

      
        B-2

        
          

        

      

      
        
        

      

    

     

    b.           “Nonrecourse
Deductions” has the meaning set forth in Section 1.704-2(b)(1) of the Tax
Regulations.

     

    c.           “Nonrecourse
Liability” has the meaning set forth in Section 1.704 2(b)(3) of the Tax
Regulations.

     

    d.           “Partner
Nonrecourse Debt” has the meaning set forth in Section 1.704-2(b)(4) of
the Tax Regulations.

     

    e.           “Partner
Nonrecourse Debt Minimum Gain” means an amount, with respect to each
Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would
result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1.704 2(i)(3) of the Tax
Regulations.

     

    f.           “Partner
Nonrecourse Deductions” has the meaning set forth in Sections 1.704
2(i)(1) and 1.704 2(i)(2) of the Tax Regulations.

     

    g.           “Partnership
Minimum Gain” has the meaning set forth in Sections 1.704-2(b)(2) and
1.704 2(d) of the Tax Regulations.

     

    h.           “Tax
Regulations” shall mean any final, temporary or proposed regulations
promulgated by the Treasury Department pursuant to the Code.

     

     

    
      
        
        

      

      
        B-3