Exhibit 3.12
LIMITED LIABILITY COMPANY AGREEMENT
OF
BFC 3 LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") is dated to be
effective as of August 31, 2000 by and among BFC 2 LP, a Delaware limited
partnership ("BFC 2 LP"), BFOL 2 LP, a Delaware limited partnership ("BFOL 2 LP"
and together with BFC 2 LP, the "Initial Members") and such other Persons (as
that term is defined in Section 2.1) who shall be admitted in the future as
members of the Company (as that term is defined in Section 1.1) in accordance
with the terms hereof (such Persons, including BFOL 2 LP and BFC 2 LP, being
hereinafter sometimes referred to collectively as the "Members" and individually
as a "Member").
ARTICLE 1
THE COMPANY
1.1 Formation. By execution of this Agreement and upon the filing of the
Company's Certificate of Formation (the "Certificate") with the Secretary of
State of the State of Delaware, the Initial Members hereby form BFC 3 LLC, a
limited liability company (the "Company"), pursuant to the Delaware Limited
Liability Company Act, Title 6, Section 18-101 et seq. of the Delaware Code, as
amended from time to time (the "Act"). The parties intend that the Company shall
be taxed as a partnership.
1.2 Company Name. The name of the Company shall be BFC 3 LLC.
1.3 Business of the Company. The Company may engage in any lawful business
for which limited liability companies may be organized under the Act.
1.4 Registered Office and Agent. The registered office of the Company in
the State of Delaware and the Company's registered agent for service of process
in the State of Delaware shall be Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
1.5 Principal Place of Business. The principal office and place of
business of the Company shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
1.6 Term. The existence of the Company shall commence on the date of
filing of the Certificate with the Secretary of State of the State of Delaware
and shall continue
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until the date on which the Company is dissolved in accordance with Article 7 of
this Agreement.
ARTICLE 2
MEMBERS
2.1 Members. Members may consist of such limited liability companies,
corporations, partnerships, joint ventures, trusts or other entities
("Person(s)") who are, from time to time, admitted as members of the Company
pursuant to the Act and this Agreement and whose names are set forth on SCHEDULE
A which is attached hereto and made part of this Agreement, as such SCHEDULE A
may be amended from time to time.
2.2 Meetings. Meetings of the Members, for any purpose or purposes, may be
called by the Manager, as defined in Article 3, or by any Members.
2.3 Action by Members Without a Meeting. Action required or permitted to
be taken at a meeting of Members may be taken without a meeting. If a majority
of the Members consent to voting on such action without a meeting, the
affirmative vote of the Members that would otherwise be necessary to authorize
or to take such action at a meeting ("Majority-in-Interest") shall be sufficient
to constitute the act of the Members without a meeting. The action without a
meeting must be evidenced by one (1) or more written consents describing the
action taken, signed by a majority of Members in one (1) or more counterparts,
indicating each signing Member's vote or abstention on the action and delivered
to the Company for inclusion in the minutes or filing with the Company records.
A consent signed under this section has the effect of a meeting vote and may be
described as such in any document.
2.4 Place of Meetings; Telephone Meetings. The Members may designate any
place as the place of any meeting of the Members. A meeting may take place by
telephone conference call or any other form of electronic communication through
which the Members participating may simultaneously hear each other. Such meeting
shall be deemed to be held at the principal office of the Company or at the
place properly named in the notice calling the meeting.
ARTICLE 3
MANAGEMENT
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3.1 Manager. The Company shall be managed by the "Manager," which shall be
BFOL 2 LP, until its removal or resignation, in which case a Manager shall be
elected in accordance with this Article 3.
3.2 Authority of Manager. Except as otherwise provided herein, the Manager
of the Company shall have full and complete authority, power and discretion to
manage and control the business, affairs and properties of the Company, to make
all decisions regarding those matters and to perform any and all other acts or
activities which the Manager deems necessary, useful or appropriate for the
management and conduct of the Company's business and affairs, including the
execution and delivery of any and all instruments, certificates, documents and
agreements in connection with the Company's business. The Manager shall be
appointed by the Members, as defined in Article 2, and shall serve until
removal, resignation or death.
3.3 Removal; Resignation; Vacancies. The Members may, at any time by
written notice to the Manager, remove such Manager. Any Manager may resign at
any time by giving written notice to the Members. Any such resignation shall
take effect on the date specified in such notice or, if such notice is not dated
and the date of resignation is not specified in such notice, on the date of the
receipt of such notice by the Members. No acceptance of such resignation shall
be necessary to make it effective. Upon the resignation of the Manager or other
termination of the Manager's position with the Company, the Members may appoint
a new Manager.
3.4 Role of Members.
(a) The Members shall not have any right or power to take part in
the management or control of the Company or its business and affairs or to
act for or bind the Company in any way. Notwithstanding the foregoing, the
Members shall have all of the rights and powers specifically set forth in
this Agreement and, to the extent not inconsistent with this Agreement,
the Act.
(b) The Members shall have voting rights solely with respect to
matters for which the approval of the Members is affirmatively required by
the Act.
3.5 Delegation of Management to Officers. The Manager may delegate
management authority of the Company to officers of the Company appointed by the
Manager. Each officer shall hold office until his successor shall have been duly
elected and shall have been qualified in accordance with the terms of this
Agreement or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. An officer serves at the pleasure of the
Manager, who may remove an officer at any time with or without cause and who may
eliminate any officer position at any time. The removal of an officer is without
prejudice to the contractual rights of the officer, if
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any. Any officer may resign at any time and for any reason. In the event of a
vacancy in any office because of death, resignation or removal, the Manager
shall elect a successor to such office.
ARTICLE 4
CAPITAL
4.1 Initial Capital Contributions.
(a) Each Initial Member is contributing to the capital of the
Company the property and/or assets set forth opposite such Initial
Member's name on SCHEDULE A attached hereto in exchange for the number of
membership units in the Company set forth opposite such Initial Member's
name on SCHEDULE A (each such unit, a "Membership Unit"). The Membership
Units issued in exchange for each Member's capital contribution shall
represent the Percentage Interest (as defined in Section 5.1) and Capital
Account set forth opposite such Member's name on SCHEDULE A.
(b) SCHEDULE A attached hereto shall be updated by the Manager to
reflect the issuance of any additional Membership Units by the Company and
any transfer of Membership Units by the Members permitted by this
Agreement.
4.2 No Additional Capital Contribution. The Members shall have no
obligation to make additional capital contributions to the Company.
4.3 Capital Accounts.
(a) A capital account ("Capital Account") shall be maintained by
the Company for each Member in accordance with Section 704(b) of the
Internal Revenue Code of 1986, as amended and in effect from time to time
(the "Code"), and the Treasury Regulations promulgated thereunder (the
"Treasury Regulations").
(b) Except as otherwise provided in this Agreement, whenever it is
necessary to determine the Capital Account of any Member, the Capital
Account of such Member shall be determined after giving effect to all
allocations of profits and losses, and all distributions, with respect to
transactions effected prior to the date as of which such determination is
to be made.
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(c) No Member with a negative balance in his or its Capital
Account shall have any obligation to the Company or the other Members to
restore such negative balance.
(d) No Member shall be entitled to interest on the amount of such
Member's capital contribution to the Company.
(e) A Member shall not be entitled to withdraw any part of his or
its Capital Account or to receive any distribution from the Company,
except as specifically provided in this Agreement. Any Member whose
Membership Units shall be increased by means of a transfer to him or it of
all or part of the Membership Units of another Member shall have a Capital
Account that reflects such transfer.
4.4 Sale of Additional Membership Units. In the event that the Manager
deems that it would be advisable for the Company to raise additional capital
beyond that contributed by the Initial Members and any subsequently admitted
Members, the Company shall:
(a) First, by giving written notice thereof to the address of each
Member specified in SCHEDULE A hereto, offer additional Membership Units
in the Company (the "Additional Membership Units") to the then existing
Members for a capital contribution and on such other terms as may be
determined by the Members. Such Additional Membership Units shall be
offered in compliance with applicable law to all Members on a pro rata
basis in proportion to their Percentage Interests and such offer shall
remain open for a period of fifteen (15) days from the date of the notice
thereof (the "Acceptance Period"). Any Member who desires to purchase all
or any part of such Member's pro rata share of the Additional Membership
Units will notify the Company in writing of the number of Additional
Membership Units such Member desires to purchase no later than the
expiration of the Acceptance Period ("Purchase Notice"). In addition, in
the event that any Member fails to accept the offer with respect to such
Member's full pro rata share of Additional Membership Units, the other
Members will have the right to purchase up to the balance of the
Additional Membership Units not so purchased. Each such other Member may
exercise his or its right of oversubscription (each Member exercising such
right, a "Participating Member") by offering to purchase in such
Participating Member's Purchase Notice more than such Participating
Member's pro rata share of the Additional Membership Units, up to the
total number of Additional Membership Units. If the Participating Members
in the aggregate offer to purchase a number of Additional Membership Units
in excess of the total number of unsubscribed Additional Membership Units,
then the Additional Membership Units will be allocated
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among the Participating Members on a pro rata basis in proportion to their
relative Percentage Interests. In no event shall any Member who does not
subscribe to any such offering of Additional Membership Units have any
obligation to make any capital contribution to the Company in connection
with such offering;
(b) Second, for the 60-day period following the expiration of the
Acceptance Period, offer and sell any Membership Units offered but not
acquired pursuant to subsection (a) above to Persons other than those who
are then existing Members on such terms, not more favorable to the
purchasers than those offered to the then existing Members, as the Members
may determine. Any Additional Membership Units not sold by the expiration
of such 60-day period will again become subject to the requirements of
this Section 4.4.
ARTICLE 5
ALLOCATIONS; DISTRIBUTION
5.1 Allocation of Income or Loss. After the allocations made in accordance
with Section 5.2, Net Income or Net Loss (and items thereof) for each fiscal
year of the Company shall be allocated among the Members in accordance with
their then respective Percentage Interests. As used herein with respect to any
Member, the term "Percentage Interest" shall mean the percentage equal to the
product of (a) one hundred (100) and (b) a fraction the numerator of which is
the number of Membership Units held by a Member and the denominator of which is
the total number of Membership Units held by all Members. For this purpose, "Net
Income" and "Net Loss" shall mean the Company's taxable income or loss
determined in accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss or deduction required to be separately stated
pursuant to Section 703(a)(1) of the Code shall be included in taxable income or
loss), with the following modifications: (i) any income of the Company that is
exempt from income tax and not otherwise taken into account in computing Net
Income or Net Loss shall be added to such taxable income or loss; and (ii) any
expenditures of the Company described in Section 705(a)(2)(B) of the Code or
treated as Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing
Net Income or Net Loss shall be subtracted from such taxable income or loss. If
during any fiscal year of the Company there is a change in any Member's
Percentage Interest, then for purposes of complying with Code Section 706(d),
the determination of Company items allocable to any period shall be made by
using any method permissible under Code Section 706(d) and the Treasury
Regulations thereunder. The Members agree to be bound by the provisions of this
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Section 5.1 in reporting their shares of Company income, gain, loss, and
deduction for tax purposes.
5.2 Allocations Under Regulations.
(a) Loss attributable (under Treasury Regulation Section
1.704-2(c)) to "partnership nonrecourse liabilities" (within the meaning
of Treasury Regulation Section 1.704-2(b)(1)) shall be allocated among the
Members in accordance with their respective Percentage Interests. As the
allocation of partnership nonrecourse deductions will increase the
potential minimum gain chargeback under Section 5.2(d), an allocation of
partnership nonrecourse deductions under this provision will not reduce a
Member's Capital Account.
(b) Loss attributable (under Treasury Regulation Section
1.704-2(i)(2)) to "partner nonrecourse debt" (within the meaning of
Treasury Regulation Section 1.704-2(b)(4)) shall be allocated, in
accordance with Treasury Regulation Section 1.7042(i)(1), to the Member
who bears the economic risk of loss with respect to the debt to which the
Loss is attributable. As the allocation of partner nonrecourse deductions
will increase the potential minimum gain chargeback under Section 5.2(d),
an allocation of partner nonrecourse provisions under this provision will
not reduce a Member's Capital Account.
(c) If, in any year there is a net decrease in minimum gain
(within the meaning of Treasury Regulation Section 1.704-2(d)) ("Minimum
Gain") (other than a decrease attributable to a "book up" in the tax book
value of the Company's assets, a decrease offset by an increase in Member
Minimum Gain or any other decrease for which a minimum gain chargeback is
not required under Treasury Regulation Section 1.704-2(f)), then each
Member will be allocated income equal to that Member's share of the net
decrease in Minimum Gain for the year, as determined by Treasury
Regulation Section 1.704-2(g)(2). In the event there is insufficient
income for the year to fully chargeback each Member's share of the
decrease in Minimum Gain, then the chargeback for the year shall be in
proportion to each Member's share of the decrease and any decrease that
has not been charged back shall be carried over and be treated as a
decrease in Minimum Gain in the following year. This subsection is
intended to comply with the minimum gain chargeback requirement of
Treasury Regulation Section 1.704-2(f) and shall be interpreted
consistently therewith.
(d) If, in any year there is a net decrease in Minimum Gain (other
than a decrease attributable to a "book up" in the tax book value of the
Company's assets, a decrease offset by an increase in Minimum Gain or any
other decrease for which a Member Minimum Gain chargeback is not required
under Treasury
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Regulation Section 1.704-2(i)(4)), then, after the allocation set forth
above, each Member will be allocated income equal to that Member's share
of the net decrease in Member Minimum Gain for the year, as determined by
Treasury Regulation Section 1.704-2(i)(3). The items of income to be
allocated under this section are determined under Treasury Regulation
Section 1.704-2(j)(2). In the event there is insufficient income for the
year to fully chargeback each Member's share of the decrease in Member
Minimum Gain, then the chargeback for the year shall be in proportion to
each Member's share of the decrease and any decrease that has not been
charged back shall be carried over and be treated as a decrease in Member
Minimum Gain in the following year. This subsection is intended to comply
with the requirement of Treasury Regulation Section 1.704-2(i)(4) that
there be a chargeback of partner nonrecourse debt minimum gain and shall
be interpreted consistently therewith.
(e) In the event any Member received any adjustment, allocation or
distribution described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) that was not reasonably expected at
the end of the preceding year and that causes, or increases, a deficit in
the Member's Capital Account, income (composed of a pro rata portion of
each element remaining after the allocations in earlier subsections of
this section) shall be allocated to that Member in an amount and manner
sufficient to eliminate any portion of the deficit balance in the Member's
Capital Account that is attributable to the adjustment, allocation, or
distribution referred to above. If there is insufficient income in any
year to make the allocation called for under this subsection, then the
shortfall shall be carried over to subsequent years and will be treated as
items to be offset in those years. Allocations under this subsection will
only be made to the extent that a Member has a deficit in his Capital
Account after all other allocations provided in Article 4 have been
tentatively made as if this subsection were not in the Agreement. For
purposes of this subsection, a Member's Capital Account balance shall be
increased by (i) his share of Minimum Gain, (ii) his share of Member
Minimum Gain, and (iii) the amount, if any, by which his deficit Capital
Account balance exceeds the sum of (i) and (ii) and which the Member is
obligated to restore (or is treated as obligated to restore under Treasury
Regulation Section 1.704-1(b)(2)(ii)(c)), and decreased by (iv) the amount
of expected distributions in the next year from the current year's
earnings and (v) to the extent not previously taken into account, the
items described in Treasury Regulation Section 1.704-l(b)(2)(ii)(d)(4),
(5) and (6).
5.3 Other Allocations. When the tax book value of a Company asset is
different from its adjusted tax basis for income tax purposes, then, solely for
federal, state and local income tax purposes and not for purposes of computing
Capital Accounts, income, gain, loss, deduction and credit with respect to such
assets ("Section 704(c)
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Assets") shall be allocated among the Members to take this difference into
account in accordance with the principles of Code Section 704(c), as set forth
herein and in the Treasury Regulations thereunder and under Code Section 704(b).
Except to the extent otherwise required by final Treasury Regulations, the
calculation and allocations eliminating the differences between tax book value
and adjusted tax basis of the Section 704(c) Assets shall be made on an
asset-by-asset basis without curative allocations to overcome the "ceiling rule"
of Treasury Regulation Section 1.704-1(c)(2) and Treasury Regulation Section
1.704-3(b)(1).
5.4 Distributions.
(a) Except as otherwise provided in this Agreement, all
distributions of cash or other property from the Company to the Members
shall be made to the Members in accordance with their respective
Percentage Interests at such time or times, and in such kind and amounts,
as a Majority-in-Interest of the Members deem appropriate, subject to any
reserve which the Company in the discretion of the Members may retain.
(b) Without limiting the generality of Section 5.4(a), if and to
the extent that the Company is earning income which will result in the
Members (or their shareholders or partners which are subject to such
income tax in lieu of such Members) being subject to income tax on their
distributive share of the Company's income, then, subject to subsection
(c) below, upon the request of a Member minimum distributions shall be
made to the Members within ninety (90) days after the close of the taxable
year in such amounts and at such times as shall be sufficient to enable
the Members (or their shareholders or partners, as the case may be) to
meet income tax liability arising or incurred as a result of their
participation in the Company. Such distributions to Members in respect of
income tax liability shall be determined by (i) multiplying the Net Income
allocated to the Member in respect of the taxable year by the highest
marginal federal income tax rate then in effect for individuals (without
regard to such Member's actual income tax rate) and (ii) subtracting from
such product the amount of all other distributions made during the taxable
year to the Member.
(c) The Company shall not make a distribution to a Member to the
extent that at the time of the distribution, after giving effect to the
distribution, all liabilities of the Company, other than liabilities to
Members on account of their Membership Units in the Company and
liabilities for which the recourse of creditors is limited to specified
property of the Company, exceed the fair value of the assets of the
Company, except that the fair value of property that is subject to a
liability for which the recourse of creditors is limited shall be included
in the
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assets of the Company only to the extent that the fair value of that
property exceeds that liability.
(d) A Member that receives a distribution in violation of
subsection (c), and knew at the time of the distribution that the
distribution violated that subsection, shall be liable to the Company for
the amount of the distribution. A Member that receives a distribution in
violation of subsection (c), and did not know at the time of the
distribution that the distribution violated that subsection, shall not be
liable for the amount of the distribution.
(e) All amounts paid or withheld pursuant to the Code or any
provision of any state or local tax law with respect to any Member shall
be treated as amounts distributed to the Member pursuant to this Article
for all purposes under this Agreement.
5.5 Distribution in Kind.
(a) No Member shall have a right to demand and receive any
distribution in any form other than cash.
(b) No Member shall be compelled to accept a distribution of any
asset in kind to the extent that the percentage of the asset distributed
to the Member exceeds a percentage of that asset that is equal to such
Member's Percentage Interest.
5.6 Construction of Certain Provisions. The allocations and distributions
set forth in this Agreement are intended to comply with the requirements of Code
Sections 704(b) and 704(c) and the Treasury Regulations that have been or may be
promulgated thereunder and shall be interpreted and applied in a manner
consistent therewith. If, in the sole opinion of the Manager, any allocation or
distribution provision does not conform with such Code Sections or such Treasury
Regulations, then, notwithstanding anything to the contrary contained in this
Agreement, such allocations shall, upon notice in writing to the Members, be
modified to satisfy such Code Sections and Treasury Regulations; provided,
however, that no such modification shall materially alter the economic
arrangement between the Members.
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ARTICLE 6
EXCULPATION AND INDEMNIFICATION
6.1 Exculpation.
(a) Neither the Members nor any agent of the Members, including
any Manager or officer (collectively, including the Members, the
"Indemnified Parties"), shall be liable to the Company for mistakes of
judgment or for any action or inaction, unless such mistakes, action or
inaction arise out of, or are attributable to, the gross negligence or
willful misconduct of the Indemnified Party; nor shall any Indemnified
Party be liable to the Company for any action or inaction of any employee
or agent of the Company or a Manager. Any Indemnified Party may consult
with counsel, accountants, investment bankers, financial advisers,
appraisers and other specialized, reputable, professional consultants or
advisers in respect of Company affairs and be fully protected and
justified in any action or inaction that is taken in accordance with the
advice or opinion of such persons, provided that they shall have been
selected with reasonable care.
(b) Notwithstanding any of the foregoing to the contrary, the
provisions of this Section 6.1 shall not be construed so as to relieve (or
attempt to relieve) the Indemnified Parties of any liability, to the
extent (but only to the extent) that such liability may not be waived,
modified or limited under applicable law (including the Act), but shall be
construed so as to effectuate the provisions of this Section 6.1 to the
fullest extent permitted by applicable law (including the Act).
6.2 Right to Indemnification.
(a) The Company shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be
amended, any Indemnified Party who was or is made or is threatened to be
made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("Proceeding") by reason of such person's service to or on behalf of, or
management of the affairs of, the Company, or rendering of advice or
consultation with respect thereto, or that relate to the Company, its
properties, business or affairs against all liability and loss suffered
and expenses (including attorneys' fees and expenses) reasonably incurred
by such person; provided that the Company shall not indemnify any person
for any liability resulting or arising from the gross negligence or
willful misconduct of
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any such person. The termination of any Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person was
grossly negligent or that he or she engaged in willful misconduct. The
Company shall be required to indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if such Proceeding (or part thereof) was
authorized by the Manager. The Company may, by action of the Manager,
provide indemnification to employees or agents of the Company with the
same scope and effect as the foregoing indemnification of the Members and
the Manager provided for in this Section 6.2.
(b) The right to indemnification conferred by this Section 6.2
shall be a contract right based upon an offer from the Company which shall
be deemed to be accepted and acknowledged by each person who becomes a
Manager of the Company.
6.3 Prepayment of Expenses. The Company may, in its discretion, pay the
expenses (including attorneys' fees) incurred by such Indemnified Party in
defending any such Proceeding in advance of its final disposition, provided that
such advance payment shall be made only upon receipt of an undertaking, by or on
behalf of such Indemnified Party, to repay all amounts so advanced if it shall
ultimately be determined that such Indemnified Party is not entitled to be
indemnified under this Article 6 or otherwise.
6.4 Claims. If a claim for indemnification or payment of expenses under
this Article 6 is not paid in full by the Company within thirty (30) days after
a written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expenses (including attorney's fees) of prosecuting such claim.
6.5 Nonexclusivity of Rights. The rights conferred on any person by this
Article 6 shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, this Agreement or any other agreement,
vote of the Members or otherwise.
6.6 Insurance. The Company may maintain insurance, at its expense, to
protect itself and the Manager(s) or any employee, or agent of the Company
against any such expense, liability or loss, whether or not the Company would
have the power to indemnify such person against expense, liability or loss under
applicable law.
6.7 Amendment or Repeal. Any repeal or modification of this Article 6 by
the Members shall not adversely affect any right or protection of an Indemnified
Party existing at the time of such repeal or modification.
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ARTICLE 7
DISSOLUTION OF THE COMPANY
7.1 Events of Dissolution. The Company shall be dissolved and terminated
upon the earliest to occur of the following events of dissolution:
(a) The dissolution or bankruptcy of the Members;
(b) The entry of a decree of judicial dissolution under Section
18-802 of the Act; and
(c) The consent of the Members.
7.2 Winding Up. If any of the events set forth in Section 7.1 hereof
occur, then the Company shall be dissolved and any assets shall be applied in
the following order of priority:
(a) To payment of the debts and liabilities of the Company (other
than to the Members) in the order of priority provided by law;
(b) To the establishment of reserves which are reasonably
necessary for any contingent or unforeseen liabilities or
obligations of the Company;
(c) To the payment of debts and liabilities of the Company to the
Members; and
(d) The remaining assets shall be distributed to the Members in
proportion to their respective positive Capital Accounts, as those
accounts are determined after all adjustments to such accounts for the
taxable year of the Company during which the liquidation occurs as are
required by this Agreement and Treasury Regulation Section 1.704-1(b),
such adjustments to be made within the time specified in such Treasury
Regulation.
ARTICLE 8
NOTICES AND ADDRESSES
8.1 Manner of Notices. All notices or other communications given or made
under this Agreement shall be in writing and, whether addressed to the Company
or the Members, to:
c/o BFOL 2 LP
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ARTICLE 9
MISCELLANEOUS
9.1 Amendments. This Agreement shall be amended only with the written
consent of the parties hereto.
9.2 Severability. If any portion of this Agreement is declared by a
court of competent jurisdiction to be void or unenforceable, such portion shall
be deemed severed from this Agreement and the balance of this Agreement shall
remain in effect.
9.3 Construction. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Delaware.
9.4 Entire Agreement. This Agreement, together with any instruments
incorporated into this Agreement by reference, constitutes the entire agreement
with respect to this Company.
IN WITNESS WHEREOF, this instrument has been executed by or on behalf of
the parties hereto as of the date first written above.
MEMBERS:
BFC 2 LP, BY ITS GENERAL PARTNER
BFOL 1 CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BFOL 2 LP, BY ITS GENERAL PARTNER
BFC I CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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BFC 3 LLC
LIMITED LIABILITY COMPANY AGREEMENT
SCHEDULE A
INITIAL
MEMBER NAME & CAPITAL MEMBERSHIP PERCENTAGE
ADDRESS CONTRIBUTION UNITS INTEREST
--------------------- ------------ ----- --------
BFC 2 LP Cash in the amount of $5,940; and 99 99%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, a 24.5025% limited partner
Nevada 89509 partnership interest in Buckeye
Florida, Limited Partnership ("BFLP"), a
Delaware limited partnership.
BFOL 2 LP Cash in the amount of $60; and a 1 1%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, .2475% limited partner partnership
Nevada 89509 interest in BFLP.
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