EXHIBIT 3.20
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BUILDERS FIRSTSOURCE-COLORADO, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BUILDERS
FIRSTSOURCE-COLORADO, LLC, f/k/a MC COLORADO, L.L.C. (this "Agreement"), dated
as of May 23, 2000, is adopted, executed and agreed to by sole Member of the
Company:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. As used in this Agreement, the following terms
have the following meanings:
"Act" means the Delaware Limited Liability Company Act (6 Del C
Section 18-101, et seq.) and any successor statute, as amended from time
to time.
"Affiliate" means any Person that controls, is controlled by or
under common control with another Person.
"Agreement" has the meaning given that term in the introductory
paragraph.
"Capital Contribution" means any contribution by the Member to the
capital of the Company.
"Certificate" has the meaning given that term in Section 2.01.
"Code" means the Internal Revenue Code of 1986 .and any successor
statute, as amended from time to time.
"Company" means Builders FirstSource-Colorado, LLC, f/k/a MC
Colorado, L.L.C., a Delaware limited liability company.
"DGCL" means the Delaware General Corporation Law and any successor
statute, as amended from time to time.
"Member" means Builders FirstSource - Colorado Group, Inc., a
Colorado corporation.
"Membership Interest" means the interest of the Member in the
Company, including, without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and to consent or
approve.
"Person" has the meaning given that term in Section 18-101(12) of
the Act.
"Proceeding" has the meaning given that term in Section 6.01. Other
terms defined herein have the meanings so given them.
1.02 CONSTRUCTION. Whenever the context requires, the gender of all
words used in this Agreement includes the masculine, feminine, and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement.
ARTICLE II
ORGANIZATION
2.01 FORMATION. The Company has been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the
"Certificate") under and pursuant to the Act.
2.02 NAME. The name of the Company is "Builders
FirstSourco-Colorado, LLC" and all Company business must be conducted in that
name or such other names that comply with applicable law as the Member may
select from time to time.
2.03 REGISTERED OFFICE; Registered Agent; Principal Office in the
United States; Other Offices. The registered office of the Company required by
the Act to be maintained in the State of Delaware shall be the office of the
initial registered agent named in the Certificate or such other office (which
need not be a place of business of the Company) as the Member may designate from
time to time in the manner provided by law. The registered agent of the Company
in the State of Delaware shall be the initial registered agent named in the
Certificate or such other Person or Persons as the Member may designate from
time to time in the manner provided by law. The principal office of the Company
in the United States shall be at such place as the Member may designate from
time to time, which need not be in the State of Delaware. The Company may have
such other offices as the Member may designate from time to time.
2.04 PURPOSE. The Company may conduct any lawful business, purpose
or activity permitted by the Act.
2.05 DURATION. The period of duration of the Company is perpetual,
unless
the Company dissolves in accordance with the provisions of this Agreement.
2.06 MERGERS AND EXCHANGES. The Company may be a party to (a) a
merger, or (b) an exchange or acquisition of the type described in Section
18-209 of the Act.
2.07 LIABILITY TO THIRD PARTIES. The Member shall not be liable for
the debts, obligations or liabilities of the Company, including under a judgment
decree or order of a court.
2.08 BANKRUPTCY OF THE MEMBER. The Member shall not cease to be a
Member of the Company by virtue of the occurrence of any of the events listed in
Section 18-304 of the Act.
2.09 RESIGNATION OF THE MEMBER. The Member may resign from the
Company prior to the dissolution and winding up of the Company.
2.10 CERTIFICATION OF MEMBERSHIP INTEREST. The Membership Interest
shall be evidenced by a certificate of limited liability interest issued by the
Company, the form of which shall be determined by the Member.
2.11 PLEDGING OF THE MEMBERSHIP INTEREST. Except as specifically
provided in this Section 2.11, no sale, assignment, transfer, exchange,
mortgage, pledge, grant of a security interest or other disposition or
encumbrance (including, without limitation, by operation of law) (a
"Disposition") of the Membership Interest may be effected without the written
consent of the Member. Any attempted Disposition by any person of the Membership
Interest, or any part thereof, other than in accordance with this Section 2.11
shall be, and is hereby declared, null and void ab initio. Notwithstanding the
foregoing, the Member may pledge, or grant a security interest, lien or
encumbrance in or against, the Membership Interest to Bank of America, N.A. (the
'Bank"), pursuant to the terms of that certain Amended and Restated Credit
Agreement, dated as of December 30, 1998, by and among Builders FirstSource,
Inc. (fk.a. BSL Holdings, Inc.), the Guarantors (as defined therein) and the
Bank as agent for the Lenders (as defined therein).
ARTICLE III
CAPITAL CONTRIBUTIONS
3.01 INITIAL CONTRIBUTIONS. The Member has made a Capital
Contribution of One Thousand Dollars ($1,000) to the Company.
3.02 SUBSEQUENT CONTRIBUTIONS. The Member shall not be required to
make
any additional contributions to the capital of the Company.
3.03 ADVANCES BY THE MEMBER. If the Company does not have sufficient
cash to pay its obligations, the Member may advance all or part of the needed
funds to or on behalf of the Company. An advance described in this Section
constitutes a loan from the Member to the Company, bears interest at a rate
determined by the Member from the date of the advance until the date of payment,
and is not a Capital Contribution.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.01 ALLOCATIONS. All items of income, gain, loss, deduction, and
credit of the Company shall be allocated to the Member.
4.02 DISTRIBUTIONS. Subject to the limitations of Section 18-607 of
the Act, from time to time the Member may cause the Company to make a
distribution of cash or other property to the Member. From time to time the
Member also may cause property of the Company other than cash to be distributed
to the Member, which distribution may be made subject to existing liabilities
and obligations.
ARTICLE V
MANAGEMENT
5.01 MANAGEMENT BY MEMBER. The powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of, the Member.
5.02 COMPENSATION. The Member shall receive such compensation, if
any, for its services as may be designated from time to time by the Member. In
addition, the Member shall be entitled to be reimbursed for out-of-pocket costs
and expenses incurred in the course of its services hereunder, including the
portion of its overhead reasonably allocable to Company activities.
5.03 NO FIDUCIARY DUTIES. The Member shall have no fiduciary duties
to the Company, By way of illustration, and not by limitation, (i) the Member
may engage in and possess
interests in other business ventures of any and every type and description,
independently or with others, including ones in competition with the Company,
with no obligation to offer to the Company the right to participate therein and
(ii) the Company may transact business with the Member or any Affiliate thereof.
5.04 OFFICERS. The Member may, from time to time, designate one or
more Persons to be officers of the Company. No officer need be a resident of the
State of Delaware or a Member. Any officers so designated shall have such
authority and perform such duties as the Member may, from time to time, delegate
to them. The Member may assign titles to particular officers. Unless the Member
decides otherwise, if the title is one commonly used for officers of a business
corporation formed under the DGCL, the assignment of such title shall constitute
the delegation to such officer of the authority and duties that are normally
associated with that office, subject to any specific delegation of authority and
duties made to such officer by the Member pursuant to this Section 5.04. Each
officer shall hold office until his successor shall be duly designated and shall
qualify or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. Any number of offices may be held by the
same Person. The salaries or other compensation, if any, of the officers and
agents of the Company shall be fixed from time to time by the Member. Any
officer may resign as such at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, or if no time be
specified, at the time of its receipt by the Member. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation, Any officer may be removed as such, either with or
without cause, by the Member whenever in its judgment the best interests of the
Company will be served thereby; provided, however, that such removal shall be
without prejudice to the contract rights, if any, of the Person so removed.
Designation of an officer shall not of itself create contract rights. Any
vacancy occurring in any office of the Company may be filled by the Member.
ARTICLE VI
INDEMNIFICATION
6.01 RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this Article VI, each Person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (hereinafter a "Proceeding"), or
any appeal in such a Proceeding or any inquiry or investigation that could lead
to such a Proceeding, by reason of the fact that he, or a Person of whom he is
the legal representative, is or was a Member of the Company shall be
indemnified by the Company to the fullest extent permitted by the Act, as the
same exist or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment) against judgments, penalties (including excise and similar taxes
and punitive damages), fines, settlements and reasonable expenses (including,
without limitation, attorneys' fees) actually incurred by such Person in
connection with such Proceeding, and indemnification under this Article VI shall
continue as to a Person who has ceased to serve in the capacity which initially
entitled such Person to indemnity hereunder. The rights granted pursuant to this
Article VI shall be deemed contract rights, and no amendment, modification or
repeal of this Article VI 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. It is expressly acknowledged that the
indemnification provided in this Article VI could involve indemnification for
negligence or under theories of strict liability.
6.02 ADVANCE PAYMENT. The right to indemnification conferred in this
Article VI shall include the right to be paid or reimbursed by the Company the
reasonable expenses incurred by a Person of the type entitled to be indemnified
under Section 6.01 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding in advance of the final disposition of the Proceeding
and without any determination as to the Person's ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred
by any such Person in advance of the final disposition of a Proceeding, shall be
made only upon delivery to the Company of a written affirmation by the Person of
his good faith belief that he has met the standard of conduct necessary for
indemnification under this Article VI and a written undertaking, by or on behalf
of such Person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified Person is not entitled to be indemnified under
this Article VI or otherwise.
6.03 INDEMNIFICATION OF OFFICERS. Employees and Agents. The Company,
by adoption of a resolution of the Member, may indemnify and advance expenses to
an officer, employee or agent of the Company to the same extent and subject to
the same conditions under which it may indemnify and advance expenses to the
Member under this Article VI, and, the Company may indemnify and advance
expenses to Persons who are not or were not Member, officers, employees or
agents of the Company but who are or were serving at the request of the Company
as a manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in such a capacity or arising out of his status
as such a Person to the same extent that it may indemnify and advance expenses
to the Member under this Article VI.
6.04 APPEARANCE AS A WITNESS. Notwithstanding any other provision of
this Article VI, the Company may pay or reimburse expenses incurred by a Person
in connection with his appearance as a witness or other participation in a
Proceeding at a time when he is not a named defendant or respondent in the
Proceeding.
6.05 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Article VI shall not be
exclusive of any other right which the Member or other Person indemnified
pursuant to this Article VI may have or hereafter acquire under any law (common
or statutory), provision of the Certificate or this Agreement, agreement, vote
of the Member or otherwise.
6.06 INSURANCE. The Company may purchase and maintain insurance, at
its expense, to protect itself and any Person who is or was serving as an
officer, employee or agent of the Company or is or was serving at the request of
the Company as a Manager, manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise against
any expense, liability or loss, whether or not the Company would have the power
to indemnify such Person against such expense, liability or loss under this
Article VI.
6.07 SAVINGS CLAUSE. If this Article VI or any portion' hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Member or any other
Person indemnified pursuant to this Article VI as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative to the fullest extent permitted by any
applicable portion of this Article VI that shall not have been invalidated and
to the fullest extent permitted by applicable law.
ARTICLE VII
TAXES AND BOOKS
7.01 FEDERAL INCOME TAX TREATMENT. For federal income tax purposes,
the Company shall be disregarded as an entity separate from the Member pursuant
to Treasury Regulations Section 301.7701-3(b)(1)(ii). No federal income tax
returns shall be filed by the Company.
7.02 OTHER TAX RETURNS. Subject to Section 7.01, the Member shall
cause to be prepared and filed all necessary tax returns for the Company.
7.03 MAINTENANCE OF BOOKS. The Company shall keep books and records
of accounts. The books of account for the Company shall be maintained on a basis
determined by the Member. The calendar year shall be the accounting year of the
Company.
ARTICLE VIII
DISSOLUTION, LIQUIDATION, AND TERMINATION
8.01 DISSOLUTION. The Company shall dissolve and its affairs shall
be wound up on the first to occur of the following:
(a) the written consent of the Member;
(b) December 31, 2050;
(c) entry of a decree of judicial dissolution of the Company
under article 6.02 of the Act; and
(d) the occurrence of an event specified in Section 18-801(4)
of the Act, unless the business of the Company is continued by the
Member.
8.02 LIQUIDATION AND TERMINATION. On dissolution of the Company, the
Member shall act as liquidator or may appoint one or more other Persons to act
as liquidator. The liquidator shall proceed diligently to wind up the affairs of
the Company and make final distributions as provided in the Act. The costs of
liquidation shall be borne as a Company expense. Until final distribution, the
liquidator shall continue to operate the Company properties with all of the
power and authority of the Member.
8.03 DEFICIT CAPITAL ACCOUNTS. Notwithstanding anything to the
contrary contained in this Agreement, and notwithstanding any custom or rule of
law to the contrary, the Member shall not be responsible for any deficit in any
capital account attributed to the Member, and upon dissolution of the Company
any such deficit shall not be an asset of the Company and the Member shall not
be obligated to contribute such amount to the Company to bring the balance of
the Member's capital account to zero.
8.04 CERTIFICATE OF CANCELLATION. On completion of the distribution
of Company assets as provided herein, the Company is terminated, and the Member
(or such other Person or Persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of Delaware and take
such other actions as may be necessary to terminate the Company.
ARTICLE IX
GENERAL PROVISIONS
9.01 ENTIRE AGREEMENT; SUPERSEDURE. This Agreement constitute the
entire agreement of the Member relating to the Company and supersedes all prior
contracts or agreements
with respect to the Company, whether oral or written.
9.02 EFFECT OF WAIVER OR CONSENT. A waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by that
Person of its obligations with respect to the Company is not a consent or waiver
to or of any other breach or default in the performance by that Person of the
same or any other obligations of that Person with respect to the Company.
Failure on the part of a Person to complain of any act of any Person or to
declare any Person in default with respect to the Company, irrespective of how
long that failure continues, does not constitute a waiver by that Person of its
rights with respect to that default until the applicable statute-of-limitations
period has run.
9.03 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by a written instrument adopted by the Member.
9.04 BINDING EFFECT. This Agreement are binding on and inure to the
benefit of the Member and its respective heirs, legal representatives,
successors, and assigns.
9.05 GOVERNING LAW; SEVERABILITY. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the
event of a direct conflict between the provisions of this Agreement and (a) any
provision of the Certificate, or (b) any mandatory provision of the Act, the
applicable provision of the Certificate or the Act shall control. If any
provision of this Agreement or the application thereof to any Person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other Persons or
circumstances is not affected thereby and that provision shall be enforced to
the greatest extent permitted by law.
[Signature page to follow.]
IN WITNESS WHEREOF, the Member has executed this Amended and
Restated Limited Liability Company Agreement as of the date first set forth
above.
Builders FirstSource - Colorado Group, Inc.,
Sole Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
