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by the parties’ course of conduct.14 See, e.g., Handex of Fla.,
Inc. v. Chatham County, 602 S.E.2d 660, 664 (Ga. Ct. App. 2004)
(“While a distinct stipulation in a contract may be waived by the
conduct of the parties, it must appear that it was the intention
of the parties to treat such stipulation as no longer binding.”);
Shalom Farms, Inc. v. Columbus Bank & Trust Co., 312 S.E.2d 138,
141 (Ga. Ct. App. 1983) (“To establish the existence of a quasi
new agreement would require * * * a showing of mutual * * *
intention to vary the terms of the original contract. * * *
Such a showing may be implied from the parties’ conduct”).
The parties to the assignment and assumption agreement,
constituting the entire membership of the LLC, voluntarily
executed that agreement in the absence of formal notice to the
manager of intent to dispose of membership interests and without
affording the LLC its right of prior purchase. See articles 10.2
and 10.3 of the LLC operating agreement. Moreover, Dr. Joffe, in
his capacity as manager of the LLC, executed a “Waiver of Notice
and Right to Purchase” (attached to the assignment and assumption
agreement) whereby the LLC formally waived its rights under
articles 10.2 and 10.3. We view those actions as constituting
14 The preamble to the LLC operating agreement states that
it “is entered into by and among the Company and the persons
executing this Agreement as Members”. Therefore, it is in the
nature of a contract the parties to which are the LLC and its
members. See Kinkle v. R.D.C., L.L.C., 889 So. 2d 405, 409 (La.
Ct. App. 2004) (“An operating agreement is contractual in nature;
thus, it * * * is interpreted pursuant to contract law.”).
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Last modified: November 10, 2007