Exhibit 3.105
LIMITED LIABILITY COMPANY AGREEMENT
OF
_______________________________________________
This Limited Liability Company Agreement (this "Agreement") of
__________________ is entered into by the undersigned, as Member (the "Member"),
and is effective as of _____, _____________.
The Authorized Person, Delaware Incorporators & Registration Service,
Inc., 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 Member now wishes 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. Delaware Incorporators & Registration Service, Inc.,
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;
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(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; the Company necessary
to, in connection with, convenient to, or incidental to the
accomplishment of any 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;
(iv) take any and all actions necessary, convenient or appropriate
as trustee, executor, nominee, bailee, director, officer, agent 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;
(xiii) indemnify any person in accordance with the Act and obtain
any and all types of insurance;
(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.
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(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 or Managers (as those terms are
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 Member.
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 sole Member is
__________________. The mailing address of the Member is
________________________. Any action to be taken by the Member under this
Agreement shall be evidenced by its signed, written consent. The following
persons shall serve as the initial managers (the "Managers"), of the Company
and, as provided by Section 20 below, the management of the Company shall be
vested solely in the Managers:
________________
________________
________________
(b) The Member shall have the power to remove any 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 Managers and the Member (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 Member, in its
capacity as the Member 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.
10. Exculpation. (a) No Covered Person shall be liable to the Company,
the Member 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.
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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 Managers shall, in their sole discretion, deem
reasonable, on behalf of Covered Persons and such other persons as the Managers
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 Managers and the Company may enter into indemnity contracts
with Covered Persons and such other persons as the Managers 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.
14. Assignments. The Member may sell, assign, transfer, convey or
otherwise dispose of all or any part of its limited liability company interest.
15. Resignation. The Member 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 written consent of the
Member.
17. Capital Contributions. (a) The undersigned, as Member, may make
capital contributions to the Company of cash or other property on an as needed
basis.
(b) The Member shall be required to make additional capital
contributions for the payment of the Company's expenses at the request of the
Managers.
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(c) It is agreed by the Member that its percentage ownership interest
in the Company shall be 100%.
(d) The Member's 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
Member.
19. Distributions. (a) Distributions of any cash, shares or other
property shall be made to the Member at the times and in the aggregate amounts
determined by the Member, 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 Managers, as named in
this Agreement, or otherwise provided for by designation pursuant to Section 8
hereof.
(b) A quorum of Managers shall be required to hold meetings of the
Managers and to conduct business of the Company. One Third (1/3) of the total
number of the Managers shall constitute a quorum for all purposes. The Managers
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.
(c) The Managers may, in their sole discretion, appoint officers to run
the day-to-day operations of the Company, subject to the supervision of the
Managers. The officers of the Company, if deemed necessary by the Managers,
shall include a President, Vice Presidents, an Assistant Vice President, a
Treasurer, 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 Managers. Any officer may be removed at any time at the sole
discretion of the Managers and any vacancy occurring in any office of the
Company shall be filled by the Managers. The following persons shall serve as
the initial officers of the Company (the "Officers"):
Name Office
---- ------
_________________ ______________
_________________ ______________
_________________ ______________
(d) The Officers are authorized to undertake such acts at, or in
advance of, the Organizational Meeting of the Managers as are necessary to
initiate and undertake the conduct of business of the Company, provided,
however, that the Managers shall ratify, confirm and approve at the
Organizational Meeting of the Managers of the Company all such acts undertaken
by, and through, the Officers.
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21. Other Business. The Member 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 a single
owner, shall make an election to be ignored as a separate taxable entity from
the Member 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) the resignation of
the Member, (ii) the written consent of the Member to dissolve the Company,
(iii) upon the occurrence of any event that results in the Member ceasing to be
the Member of the Company under the Act (including, without limitation, the
death, retirement, resignation, expulsion, bankruptcy or dissolution of the
Member or the occurrence of any other event which terminates the continued
membership of the Member in the Company) or (iv) 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 Member in the
manner provided for in this Agreement and the Certificate of Formation shall
have been canceled in the manner required by the Act.
25. Claims of the Member. The Member 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 Member 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, unenforceability 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 the Member.
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* * *
THE UNDERSIGNED, intending to be legally bound hereby, have duly
executed this Agreement as of the date provided above.
MEMBER: MANAGERS:
- ------- ---------
____________________________
By: _______________________ __________________________________
__________________________________
__________________________________
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EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
___________________________________________
Certificate of Formation
[See attached]