Exhibit 3.54
LIMITED LIABILITY COMPANY AGREEMENT
OF
[NAME OF ENTITY]
This Limited Liability Company Agreement (this "Agreement") of ________
_____________is entered into by the undersigned, as Members (the "Members"), and
is effective as of ____________________.
The Authorized Person, ____________________________, formed a limited
liability company by filing the certificate of formation of__________________
__________the "Certificate of Formation") on ________________________, pursuant
to, and in accordance with, the Delaware Limited Liability Company Act (6 Del.C.
ss. 18-101, et seq.), as amended from time to time (the "Act").
The Members now wish to memorialize the Agreement with respect to the
affairs and conduct of business of______________________________ as follows:
1. Name. The name of the limited liability company governed hereby is
__________________________ (the "Company").
2. Certificates.______________________________ , the Authorized Person
within the meaning of the Act, has executed, delivered and filed the Certificate
of Formation of the Company with the Secretary of the State of Delaware (a copy
of which is attached hereto as Exhibit A), as contemplated by ss.18-201 of the
Act. The Authorized Person shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in a jurisdiction in which the Company may
wish to conduct business.
3. Purpose. The Company is formed for the object and purpose of, and
the nature of the business to be conducted and promoted by the Company is,
engaging in any lawful act or activity for which limited liability companies may
be formed under the Act and engaging in any and all activities necessary,
convenient, desirable or incidental to the foregoing including, but not limited
to, the maintenance, management, investment and/or disposition, including sale
or exchange, of property held by the Company.
4. Powers.
(a) In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to take any and all actions necessary, appropriate, proper,
advisable, incidental or convenient to and for the furtherance of the purposes
set forth in Section 3, including, but not limited to, the power to:
(i) conduct the business, carry on its operations and
have and exercise the powers granted to a limited liability company by
the Act in any state, territory, district or possession of the United
States, or in any foreign country that may be necessary, convenient or
incidental to the accomplishment of the purpose of the Company;
(ii) acquire by purchase, lease, contribution of
property or otherwise, own, hold, sell, convey, transfer or dispose of
any real or personal property which may be necessary, convenient or
incidental to the accomplishment of the purpose of the Company;
(iii) act as a trustee, executor, nominee, bailee,
director, officer, agent or in some other fiduciary capacity for any
person or entity and to exercise all of the powers, duties, rights and
responsibilities associated therewith except the Company shall not have
any power to act as agent for Members or those certain limited
partnerships in which the Company owns limited partner interests;
(iv) take any and all actions necessary, convenient
or appropriate as trustee, executor, nominee, bailee, director,
officer, or other fiduciary, including the granting or approval of
waivers, consents or amendments of rights or powers relating thereto
and the execution of appropriate documents to evidence such waivers,
consents or amendments;
(v) purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend,
pledge or otherwise dispose of, and otherwise use and deal in and with,
shares or other interests in or obligations of domestic or foreign
corporations, associations, general or limited partnerships (including,
without limitation, the power to be admitted as a partner thereof and
to exercise the rights and perform the duties created thereby), trusts,
limited liability companies (including, without limitation, the power
to be admitted as a member or appointed as a manager thereof and to
exercise the rights and perform the duties thereof), or direct or
indirect obligations of the United States or of any government, state,
territory, governmental district or municipality or of any
instrumentality of any of them;
(vi) purchase, maintain, finance, improve, own, sell,
convey, assign, mortgage, lease or demolish or otherwise dispose of any
real or personal property which may be necessary, convenient or
incidental to the accomplishment of the purposes of the Company;
(vii) borrow money and issue evidences of
indebtedness in furtherance of any or all of the purposes of the
Company, and if necessary, secure the same by mortgage, pledge or other
lien on the assets of the Company;
(viii) prepay in whole or in part, refinance, recast,
increase, modify or extend any indebtedness of the Company and, in
connection therewith, execute any extensions, renewals or modifications
of any mortgage or security agreement securing such indebtedness;
(ix) lend money, invest and reinvest its funds, and
take and hold real and personal property for the payment of funds so
loaned or invested;
(x) employ or otherwise engage employees, Managers,
contractors, advisors, attorneys, consultants and other agents of the
Company, define their respective duties, and pay reasonable
compensation for their services;
(xi) sue and be sued, complain and defend, and
participate in administrative or other proceedings, in its name;
(xii) pay, collect, compromise, litigate, arbitrate
or otherwise adjust or settle any and all other claims or demands of or
against the Company or hold such proceeds against the payment of
contingent liabilities;
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(xiii) indemnify any person in accordance with the
Act and obtain any and all types of insurance as is deemed to be in the
best interest of the Company;
(xiv) negotiate, enter into, renegotiate, extend,
renew, terminate, modify, amend, waive, execute, acknowledge or take
any other action with respect to any lease, contract or security
agreement in respect of any assets of the Company;
(xv) cease its activities and cancel its Certificate
of Formation; and
(xvi) do such other things and engage in such other
activities related to the foregoing as may be necessary, convenient or
incidental to the conduct of the business of the Company, and have and
exercise all of the powers and rights conferred upon limited liability
companies formed pursuant to the Act.
(b) The Company may merge with, or consolidate into, another
Delaware limited liability company or other business entity (as defined in
ss.18-209(a) of the Act) upon the approval of the Manager (as that term is
defined in Section 8 below).
5. Notice Address. The address of the Company for notice purposes will
be___________________________________________________________________, or at
such other location as may hereafter be determined by the Members.
6. Registered Office. The address of the registered office of the
Company in the State of Delaware is_____________________________________________
_____________________________.
7. Registered Agent. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware is
______________________.
8. Members; Managers.
(a) The name of the Members are ______________________________________
_________________________________________________. The mailing addresses of the
Members are as set forth under the authorized signatures below. Any action to be
taken by Members under this Agreement shall be evidenced by the signature of an
authorized officer of such Member._____________________________________________
shall serve as the manager (the "Manager"), of the Company and, as provided by
Section 20 below, the management of the Company shall be vested solely in the
Manager named in the Certificate of Formation. The Manager shall be bound by the
terms of this Agreement, and the actions of __________________________________,
in its capacity as Manager, shall be effected and conclusively evidenced by the
action of an authorized officer of___________________________________________,
in accordance with Section 20 below.
(b) The Members shall have the power to remove the Manager at
any time and name a successor thereto.
9. Limited Liability.
(a) Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Authorized Person, the Manager and
the Members (each a "Covered Person" and, collectively, the "Covered
Persons") shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being an
authorized person, a manager or a member of the Company.
(b) Except as otherwise expressly required by law, the
Members, in their capacity as Members of the Company, shall have no
liability in excess of (i) the amount of its capital contributions to
the Company, (ii) its share of any assets and undistributed profits of
the Company, (iii) its obligation to make other payments expressly
provided for it this Agreement, and (iv) the amount of any
distributions wrongfully distributed to it.
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10. Exculpation.
(a) No Covered Person shall be liable to the Company, the
Members or any other person or entity who has an interest in the Company for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Covered Person in good faith in connection with the formation of
the Company on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross negligence or
willful misconduct.
(b) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any person or entity as to
matters the Covered Person reasonably believes are within such other person's or
entity's professional or expert competence, including information opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which distributions to Members might be properly paid.
11. Indemnification. To the full extent permitted by applicable law,
each Covered Person shall be entitled to indemnification from the Company for
any loss, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that no
Covered Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Covered Person by reason of gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 11 shall be provided out of and to the
extent of Company assets only, and the Members shall have no personal liability
on account thereof.
12. Expenses. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person in defending any
claim, demand, action suit or proceeding shall, from time to time, be advanced
by the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on behalf
of the Covered Person to repay such amount if it shall be determined that the
Covered Person is not entitled to be indemnified as authorized in Section 11
hereof.
13. Insurance. The Company may purchase and maintain insurance to the
extent and in such amounts as the Manager shall, in its sole discretion, deem
reasonable, on behalf of Covered Persons and such other persons as the Manager
shall determine, against any liability that may be asserted against or expenses
that may be incurred by any such person in connection with the activities of the
Company or such indemnities, regardless of whether the Company would have the
power to indemnify such person against such liability under the provisions of
this Agreement. The Manager and the Company may enter into indemnity contracts
with Covered Persons and such other persons as the Manager shall determine and
adopt written procedures pursuant to which arrangements are made for the
advancement of expenses and the funding of obligations under Section 12 hereof
and containing such other procedures regarding indemnification as are
appropriate.
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14. Assignments. The Members may sell, assign, transfer, convey or
otherwise dispose of all or any part of its limited liability company interest.
15. Resignation. The Members shall have the right to resign and the
effect of which resignation shall be to cause the dissolution of the Company as
set forth in Section 23 hereof.
16. Admission of Additional Member. One (1) or more additional Members
of the Company may be admitted to the Company with the unanimous written consent
of the Members.
17. Capital Contributions.
(a) The Members shall be required to make additional capital
contributions for the payment of the Company's expenses at the request of the
Manager.
(b) It is agreed by the Members that the percentage ownership
interest of the Company shall be as follows:
______________________________ ______ %
(c) The Members' interest in the Company shall for all
purposes be personal property.
18. Allocation of Profits and Losses. Except as otherwise provided by
Section 19(b), all profits and losses of the Company shall be allocated to the
Members.
19. Distributions.
(a) Distributions of any cash, shares or other property shall
be made to the Members at the times and in the aggregate amounts determined by
the Manager, except as provided in Section 19(b).
(b) Notwithstanding any provision to the contrary contained in
this Agreement, the Company shall not make a distribution to any Member on
account of its interest in the Company if such distribution would violate
Section 18-607 of the Act or other applicable law.
20. Management.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be solely vested in the Manager, as named in the
Certificate of Formation, or otherwise provided for by designation pursuant to
Section 8 hereof.
(b) The Manager shall act in its capacity as Manager of the
Company in the conduct of the business of the Company at duly noticed meetings
at which a quorum of Directors of the Manager is present, through unanimous
written consent of such Directors and/or through the acts of properly authorized
officers of the Manager. The Manager shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by a
manager of a limited liability company under the laws of the State of Delaware.
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(c) The Manager may, in its sole discretion, appoint officers
to run the day-to-day operations of the Company, subject to the supervision of
the Manager. The officers of the Company, if deemed necessary by the Manager,
shall include a President, a Treasurer and a Secretary and such other officers
as the Manager may from time to time consider appropriate. Such officers, upon
appointment, shall be immediately authorized to exercise such duties as
customarily pertain to such offices as determined by the Manager. Any officer
may be removed at any time at the sole discretion of the Manager and any vacancy
occurring in any office of the Company shall be filled by the Manager.
(d) The Manager, or his delegate, is authorized to undertake
such acts at, or in advance of, the First Meeting of the Manager as are
necessary to initiate and undertake the conduct of business of the Company,
including, but not limited to, accepting a contribution of _____from ___________
______________________in exchange for the issuance by the Company of a interest
in the Company, respectively: accepting the assignment of those certain limited
partnership interests (as more particularly described on Schedule 1 attached
hereto) from ___________________ ___________________________; provided, however,
that the Manager shall ratify, confirm and approve at the First Meeting of the
Manager all such acts undertaken by, and through, the Manager's delegate.
21. Other Business. The Members and any person or entity affiliated
with the Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall have no rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
22. Taxation. The Company, as a domestic eligible entity with two
owners, shall make an election to be taxed as a corporation for U.S. federal
income tax purposes. Such election shall be made pursuant to Treas. Reg. ss.
301.7701-3 on Internal Revenue Service Form 8832 properly executed and filed
with the IRS.
23. Dissolution.
(a) The Company shall dissolve, and its affairs shall be wound
up, upon the first to occur of the following: (i) ____________________, 20__,
(ii) the resignation of the Members, (iii) the written consent of the Members to
dissolve the Company, (iv) upon the occurrence of any event that results in a
Member ceasing to be a Member of the Company under the Act (including, without
limitation, the death, retirement, resignation, expulsion, bankruptcy or
dissolution of a Member or the occurrence of any other event which terminates
the continued membership of a Member in the Company) or (v) the entry of a
decree of judicial dissolution under Section 18-802 of the Act.
(b) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner) and the assets of the Company
shall be applied in the manner, and in the order of priority, set forth in
Section 18-804 of the Act.
24. Termination. The Company shall terminate when all of the assets of
the Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Members in the
manner provided for in this Agreement and the Certificate of Formation shall
have been canceled in the manner required by the Act.
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25. Claims of the Members. The Members shall look solely to the
Company's assets for the return of its capital contributions, and if the assets
of the Company remaining after payment of or due provision for all debts,
liabilities and obligations of the Company are insufficient to return such
capital contributions, the Members shall have no recourse against the Company.
26. Separability of Provisions. Each provision of this Agreement shall
be considered separable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforcability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
27. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement.
28. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior understandings or agreements between the parties.
29. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
30. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by all of the Members.
THE UNDERSIGNED, intending to be legally bound hereby, have duly
executed this Agreement as of the date provided above.
MEMBERS: MANAGER:
- ------- -------
[NAME] [NAME]
By: _______________________ By: _______________________
[NAME]
By: _______________________
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EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
[NAME OF ENTITY]
Certificate of Formation
[See attached]
SCHEDULE 1
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
[NAME OF ENTITY]
Limited Partnership Interests Assigned
[See attached]