Unassociated Document


    Exhibit


    AMENDMENT
NUMBER 1

    TO
LIMITED LIABILITY COMPANY OPERATING AGREEMENT

     

    THIS
AMENDMENT NUMBER 1 TO LIMITED LIABILITY COMPANY AGREEMENT of JAVO DISPENSER,
LLC, a Delaware limited liability company (the "Company") is made and entered
into for reference purposes as of August 1, 2005, effective as of July 8, 2005,
in order to Amend the Limited Liability Company Operating Agreement by and among
each of the persons listed on the Exhibit A thereto, as may be amended or
supplemented from time to time in accordance with the Limited Liability Company
Operating Agreement of Javo Dispenser, LLC dated as of July 8, 2005 (as amended
hereby, the "Agreement").

     

    Capitalized
words used herein have the meanings provided in Section 12 of the Operating
Agreement.

     

    1. 
Article 5 is hereby amended only as to Sections 5.1, 5.2 and 5.5 of the
Agreement,
and those sections are hereby amended and restated as follows:

     

    5.
CAPITAL

     

    5.1  
Initial Capital
Contributions. At the time of their respective execution
of this Agreement, each Member or Unitholder has severally and not jointly
agreed to guaranty a Proportionate amount of the Company's obligation for money
it may borrow at any time, including all future reborrowing, from First Regional
Bank, or any future lender or financial institution to the Company (each a
"Lender"), each guarantying up to the amount as set forth in the Capital
Contribution column opposite its name on Exhibit A to this
Agreement. The amount of the Capital Contribution shall be based on each
Percentage Interest multiplied by 150% multiplied by the maximum amount allowed
to be borrowed by the Company. Notwithstanding any other term or provision of
the Agreement, Members or Unitholders shall upon request further evidence their
obligations under this Agreement by executing a personal guaranty and by
delivering it promptly, in any reasonable forms or instruments provided by
banks, and the Members and Unitholders shall execute such further instruments
and documents as may be reasonably requested by the Company or its Lender or by
a Member or Unitholder for the purpose of stating or confirming their guaranty
or the manner of allocating liability among them as guarantors of the Company's
past, present or future indebtedness. The Company's borrowing proceeds shall be
used only for purposes reasonably related to the Equipment Lease with Javo for
equipment that the Company owns and provides for Javo under the Equipment Lease.
The Capital Contribution shall be evidenced by a personal guaranty, an
Allocation Agreement, which shall be in substantially the form attached hereto
as Exhibit B,
and such further instruments and documents as may be reasonably requested
by the Company or its Lender or by a Member or Unitholder for the purpose of
stating the manner of allocating liability among them as guarantors of the
Company's past, present or future indebtedness. The guaranty of the obligation
shall be considered an immediate Capital Contribution to the Company for tax
purposes. In exchange for the Capital Contribution, each Unitholder has
been

     

    
      
        
        

      

      
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    issued
the number of Units set forth opposite its name on Exhibit A to this Agreement
equal to the amount of such Capital Contribution divided by $1,000.00. Each of
the Members, Unitholders and the Company hereby agree that the amount of the
Capital Contribution set forth opposite the name of each Unitholder is the fair
market value of the total Capital Contribution made by such Unitholder as of the
date of the execution by such Unitholder of this Agreement. The Company and each
Member and Unitholder shall be deemed a third-party beneficiary of the
guaranties of all the other Members or Unitholders. Accordingly, to the extent a
Member or Unitholder shall make a payment on account of its guaranty that
exceeds the lesser of (a) the Proportionate amount due under all such guaranties
or (b) the amount of the Capital Contribution of the Member or Unitholder in
Exhibit A, the paying Member or Unitholder shall have a right to claim and
recover contribution from all other Members or Unitholders who have paid less
than the lesser of (a) their Proportionate share of the obligation and (b) their
Capital Contribution. Furthermore, the Company shall treat as a creditor any
Member or Unitholder to the extent its payments under the guarantees exceed the
lesser of (a) its Proportionate amount of the obligations or (b) the amount of
the Capital Contribution of the Member or Unitholder in Exhibit A.

    


    5.2 Additional Capital
Contributions. Except as required by law or expressly contemplated or
permitted by this Agreement pursuant to the issuance of Units, no Member shall
be required or permitted to make any Capital Contributions or loans to the
Company. Nothing herein is intended to detract from or diminish the obligations
of Members under the guaranty to pay the Company upon demand the amount that is
the lesser of (a) their respective Proportionate shares of the obligations of
the Company to the Bank or (b) their respective Capital Contributions. Except
with the prior unanimous consent of the Members, any and all Additional Capital
Contributions must be used solely for equipment to be purchased and located as
directed by Javo under the Equipment Lease between the Company and
Javo.

    


    5.3 Authority to Enforce Capital
Contributions. Only the Company (and no third party creditor, either in
its own right or as a successor-in-interest of the Company, and including a
trustee, receiver or other representative of the Company or Member) shall be
entitled to enforce any obligation to make Capital Contributions. The Members
intend and agree that any obligation of the Members to make Capital
Contributions constitutes an agreement to make financial accommodations to and
for the benefit of the other Members and the Company. Nothing herein shall
detract from or diminish all obligations guarantied to the Bank and an
obligation to pay other Unitholders or Members to the extent that the Unitholder
or Member paid more than its Percentage share of the total due or paid to the
Bank under all guaranties, directly or indirectly. If any Person fails to make
in full a payment to the Company under a guaranty made as a Capital Contribution
that such Person made in exchange for the issuance of Units prior to or
concurrent with or after the issuance of such Units or at such other time as
agreed to by such Person and the Company, then such Person shall have no
membership interest or economic interest in the Company relating to or
represented by such Units, and such Units shall not be considered to be
outstanding, if such Person fails to make payment in full to the Bank of any
amount due the Bank or fails to make payment in full to the Company of any
amount
requested under or related to the obligations of the Company guarantied to the
Bank until such Capital Contribution is made in full.

     

    
      
        
        

      

      
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    2.  
Except as specifically amended hereby, the Agreement is unchanged and shall
hereafter
continue in full force and effect, as amended.

     

    IN
WITNESS WHEREOF, this Amendment Number I of Limited Liability Company Operating
Agreement is made and effective as of the respective dates first set forth
above.

     

    
      	 
      	
              MEMBERS

            	 
	 	 	 
	 	 /s/
      William C. Baker	 
	 
      	
              William
      C. Baker, an individual

            	 
	 	 	 
	 	 /s/
      Thomas Rielly	 
	 
      	
              Thomas
      Rielly, an individual

            	 
	 	 	 
	 	 /s/
      Terry C. Hackett	 
	 
      	
              Terry
      C. Hackett, an individual

            	 
	 	 	 
	 	 /s/
      James R. Knapp	 
	 
      	
              James
      R. Knapp, an individual

            	 
	 	 	 
	 	 /s/
      Walter Eeds	 
	 
      	
              Walter
      Eeds, an individual

            	 
	 	 	 
	 	 /s/
      Kerry Mangano	 
	 
      	
              Kerry
      Mangano, an individual

            	 
	 	 	 
	 	 /s/
      Wade Cable	 
	 
      	
              Wade
      Cable, an individual

            	 
	 	 	 
	 	 /s/
      Ron Maggard	 
	 
      	
              Ron
      Maggard, an individual

            	 
	 	 	 
	 	 /s/
      Stanley A. Solomon	 
	 
      	
              Stanley A. Solomon, an
      individual  

            	 
	 	
               

            	 
	 	 	 
	 	JAVO
      DISPENSER LLC 	 
	 	 	 
	 
      	
              By:
      /s/ Richard Gartrell

            	 
	 	 	 
	 
      	
              Name:
      Richard Gartrell

            	 
	 	 	 
	 
      	
              Title:
      Manager

            	 


    

    


     

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