EXHIBIT 3.42
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAYFIELD BUILDING, LLC
[BUILDERS FIRSTSOURCE--TEXAS GENPAR, LLC]
THIS LIMITED LIABILITY COMPANY AGREEMENT of Mayfield Building, LLC is made
and entered into effective as of July 13, 1999 (the "Effective Date"), by and
between BSL Holdings, Inc., a Delaware corporation ("BSL"), as the sole member,
and Mayfield Building, LLC, a Delaware limited liability company (the
"Company").
WITNESSETH:
For and in consideration of the mutual covenants set forth herein, the
undersigned hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ACT" means the Delaware Limited Liability Company Act and any successor
statute, as amended from time to time.
"AGREEMENT" means this Limited Liability Company Agreement of the Company,
as it may be amended from time to time in accordance with the terms of this
Agreement.
"APPROVAL OF THE BOARD" or "APPROVED BY THE BOARD" means the approval of a
majority of the then elected and qualified Managers on the Board. For purposes
of taking any action or voting on any matter coming before the Board, each
Manager shall have one vote.
"ASSISTANT SECRETARY" shall have the meaning given in Section 4.04(g) of
this Agreement.
"ASSISTANT TREASURER" shall have the meaning given in Section 4.04(e) of
this Agreement.
"BOARD" shall have the meaning provided in Section 3.01 of this Agreement.
"BSL" shall have the meaning given in the introductory paragraph of this
Agreement.
"CERTIFICATE" shall mean a certificate issued by the Company to the Member
evidencing ownership of one or more Company Units.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company as originally filed with the Secretary of State of the State of Delaware
on the Effective Date and as
amended or restated from time to time.
"CHIEF EXECUTIVE OFFICER" shall have the meaning given in Section 4.04(a)
of this Agreement.
"CODE" means the Internal Revenue Code of 1986 and any successor statute,
as amended from time to time.
"COMPANY" means Mayfield Building, LLC, a Delaware limited liability
company.
"COMPANY ASSETS" means all assets, whether tangible or intangible and
whether real, personal or mixed, at any time owned by the Company.
"COMPANY INTEREST" shall mean the ownership interest of the Member in the
Company, represented by the Company Units held by the Member.
"COMPANY UNIT" shall mean a unit of ownership, representing the ownership
of the economic rights in the Company.
"EFFECTIVE DATE" shall have the meaning given in the introductory
paragraph to this Agreement.
"MANAGER" means any Person hereafter elected to act as a Manager of the
Company as provided in this Agreement (each in the capacity as a Manager of the
Company), but does not include any Person who has ceased to be a Manager of the
Company.
"MASTER AGREEMENT" shall have the meaning given in Section 2.04 of this
Agreement.
"MASTER INTEREST" shall have the meaning given in Section 2.04 of this
Agreement.
"MEMBER" shall have the meaning given in Section 2.01 of this Agreement.
"OFFICERS" or an "OFFICER" shall have the meaning given in Section 4.01 of
this Agreement.
"PERSON" includes an individual, partnership, limited partnership, limited
liability company or partnership, foreign limited liability company, trust,
estate, corporation, custodian, trustee, executor, administrator, nominee or
entity in a representative capacity.
"PRESIDENT" shall have the meaning given in Section 4.04(b) of this
Agreement.
"PROCEEDING" shall have the meaning given in Section 8.01 of this
Agreement.
"SECRETARY" shall have the meaning given in Section 4.04(f) of this
Agreement.
"TREASURER" shall have the meaning given in Section 4.04(d) of this
Agreement.
"VICE PRESIDENT" shall have the meaning given in Section 4.04(c) of this
Agreement.
ARTICLE II
ORGANIZATION
2.01 FORMATION OF THE COMPANY. The Company is formed as a limited
liability company pursuant to the Act. BSL shall be the sole member and is
hereinafter referred to as the "Member."
2.02 NAME. The name of the Company shall be "Mayfield Building, LLC." All
business and affairs of the Company shall be conducted solely under, and all
Company Assets shall be held solely in, such name unless otherwise determined by
the Board.
2.03 EFFECTIVE DATE. The Company shall have perpetual existence beginning
on the Effective Date and shall continue under this Agreement (as amended from
time to time) unless dissolved upon the occurrence of an event that causes the
dissolution of the Company in accordance with the provisions of this Agreement,
and thereafter to the extent provided by applicable law, until wound up and
terminated as provided herein.
2.04 PURPOSES AND SCOPE OF BUSINESS. The business and purposes of the
Company are (a) to enter into Mayfield/Swain, L.P., a newly formed Texas limited
partnership (the "Master Partnership"), as the sole general partner thereof, and
in connection therewith, to enter into and execute, as a general partner, the
Limited Partnership Agreement of the Master Partnership (as may be amended from
time to time, the "Master Agreement"), (b) to own a general partner's interest
in the Master Partnership (the "Master Interest"), (c) to do all acts and
perform all obligations as a general partner in the Master Partnership,
including, without limitation, taking any and all actions necessary,
appropriate, convenient, permitted, allowed, or required of the Company under
the Master Agreement, and (d) to buy, sell, exchange or otherwise acquire, hold,
invest in, and deal with the Company Assets. Subject to the terms and conditions
of this Agreement, the Company shall have the power and authority to do all such
acts and things as are permitted and authorized under the Act and as may be
necessary, desirable, expedient, convenient for, or incidental to, the
furtherance and accomplishment of the foregoing objective and purpose and for
the protection and benefit of the Company.
2.05 DOCUMENTS. The Member hereby adopts the certificate of formation of
the Company ("Certificate of Formation") which Edward K. Clark filed in the
office of the Secretary of State of the State of Delaware in accordance with the
provisions of the Act. The Company shall promptly execute and duly file with the
proper offices in each state in which the Company may conduct the activities
hereinafter authorized, one or more certificates as required by the laws of each
such state in order that the Company may lawfully conduct the business,
purposes, and
activities herein authorized in each such state, and the Company shall take any
other action or measures necessary in such state or states for the Company to
conduct such activities.
2.06 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be at 2200 Ross Avenue, Suite 4900 West, Dallas, Texas 75201. The
Company may locate its place(s) of business at any other place or places as the
Board may from time to time deem necessary or advisable.
2.07 REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered agent in the State of Delaware is Corporation Service Company, a
Delaware corporation, and the post office address of the registered agent is
1013 Centre Rd., Wilmington, Delaware 19805. The Company may change its
registered office to any other place or places as the Board may from time to
time deem necessary or advisable. The Company may change its registered agent to
any other Person as the Board may from time to time deem necessary or advisable.
2.08 NO PERSONAL LIABILITY OF MEMBERS, MANAGERS, OFFICERS, ETC.
Notwithstanding anything contained in this Agreement to the contrary and 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. Neither the Member nor any
Manager of the Company shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being the Member or
acting as a Manager of the Company. No Manager, Officer, employee, or agent of
the Company shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Company or its Member, in connection
with the assets or the affairs of the Company, save only liability to the
Company arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and, subject to the foregoing
exception, all such Persons shall look solely to the Company Assets for
satisfaction of claims of any nature arising in connection with the affairs of
the Company.
2.09 CERTIFICATED COMPANY UNITS. The Company Units of the Company may be
either certificated units or uncertificated units. Certificates for certificated
units of the Company will be in the form Approved by the Board. The Certificates
must be signed by an authorized Manager or Officer of the Company.
ARTICLE III
MANAGEMENT
3.01 MANAGEMENT OF THE COMPANY. Except as otherwise provided herein, (i)
the powers of the Company shall be exercised solely by or under the authority
of, and the business and affairs of the Company shall be managed solely under
the direction of, a board of Managers (the "Board"), and (ii) the Board may make
all decisions and take all actions for the Company not otherwise provided in
this Agreement. Unless otherwise provided for herein, Approval of the
Board shall be necessary to conduct the business of the Company. Except for
actions for which the approval of the Member is expressly required by the Act,
the Certificate of Formation, or this Agreement, the Board may, from time to
time, delegate to one or more Persons such authority and duties of the Board as
the Board may deem advisable. Any delegation pursuant to this Section 3.01 may
be revoked at any time and with or without cause by the Board.
3.02 NUMBER AND QUALIFICATIONS. The number of Managers on the Board shall
be at least one (1) but not more than nine (9), as may be determined by the
Member from time to time; provided, however, that no decrease in the number of
Managers shall have the effect of shortening the term of any incumbent Manager.
No Manager on the Board need be a Member, a Delaware resident, or a United
States citizen. The initial Managers shall be designated and appointed as of the
Effective Date by the Member.
3.03 VACANCY. Any Manager position to be filled, whether by reason of an
increase in the number of Managers on the Board or otherwise, shall be filled by
the Member. A Manager elected to fill a vacancy other than by reason of an
increase in the number of Managers on the Board shall be elected for the
unexpired term of its predecessor in office.
3.04 REMOVAL AND RESIGNATION. Any Manager on the Board may be removed,
with or without cause, by the Member. Any Manager may resign at any time. The
resignations must be made in writing and will take effect at the time specified
therein, or if no time is specified, at the time of its receipt by the Member,
the President, or the Secretary. The acceptance of a resignation will not be
necessary to make it effective, unless expressly provided in the resignation.
3.05 MEETINGS OF THE BOARD. Meetings of the Board may be held when called
by a majority of the Managers on the Board. The Manager or Managers calling any
meeting shall cause notice to be given of such meeting, including therein the
time, date, and place of such meeting, to each Manager at least two (2) business
days before such meeting. The business to be transacted at, or the purpose of,
any meeting of the Board shall be specified in the notice or waiver of notice of
any such meeting. If fewer than all the Managers on the Board are present in
person, by telephone or by proxy, business transacted at any such meeting shall
be confined to the business or purposes specifically stated in the notice or
waiver of notice of such meeting. All meetings of the Board may be held either
within or without the State of Delaware at such place or places as shall be
determined from time to time by resolution of the Board.
3.06 METHODS OF VOTING; PROXIES. A Manager may vote either in person, by
telephone, by proxy executed in writing by the Manager, or by any other method
permitted under the Act or this Agreement; provided, however, that the Person
designated to act as proxy shall be a Manager. A telegram, telex, cablegram or
similar transmission by the Manager, or a photographic, photostatic, facsimile
or similar reproduction of a writing executed by the Manager shall be treated as
an execution in writing for purposes of this Section 3.06.
3.07 ORDER OF BUSINESS. At any meeting of the Board, business shall be
transacted in the order as the Board may determine from time to time. The
secretary of the meeting shall prepare minutes of the meeting and such minutes
shall be placed in the record books of the Company.
3.08 ATTENDANCE AND WAIVER OF NOTICE. Attendance of a Manager at any Board
meeting shall constitute a waiver of notice of such meeting, except where a
Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.09 COMPENSATION OF MANAGERS. Managers, as such, shall not receive any
stated salary for their services. Expenses of attendance, if any, may be allowed
for attendance at each meeting of the Board; provided, however, that nothing
contained in this Agreement shall be construed to preclude any Manager from
serving the Company in any other capacity and receiving compensation for such
service.
3.10 COMMITTEES. The Board may, by resolution, designate (a) from among
the Managers one or more committees, each of which shall be comprised of at
least one Manager, and (b) one or more of the Managers as alternate members of
any committee, who may, subject to any limitations imposed by the Board, replace
absent or disqualified Managers at any meeting of that committee. Such committee
shall have and may exercise all of the authority of the Board, subject to the
limitations set forth in the Act.
3.11 ACTIONS WITHOUT A MEETING. Any action required or permitted to be
taken at a meeting of the Board or any committee thereof may be taken without a
meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the Managers or members of the
committee, as the case may be, having not fewer than the minimum number of votes
that would be necessary to take the action at a meeting at which all Managers or
committee members, as the case may be, entitled to vote on the action were
present and voted. Such consent shall have the same force and effect, as of the
date stated therein, as a vote of such Managers or members of the committee, as
the case may be, and may be stated as such in any document or instrument filed
with the Secretary of State of the State of Delaware or in any certificate or
other document delivered to any person or entity. The signed consent shall be
placed in the record books of the Company.
3.12 TELEPHONE AND SIMILAR MEETINGS. The Board, or members of any
committee thereof, may participate in and hold meetings by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Such participation in any such
meeting shall constitute presence in person at such meeting, except where a
Person participates in such meeting for the express purpose of objecting to the
transaction of any business on the ground that such meeting is not lawfully
called or convened.
ARTICLE IV
OFFICERS
4.01 DESIGNATION. The Board may designate, as it deems advisable, one or
more Persons who are individuals to be officers of the Company ("Officers" or an
"Officer"). Unless the Board decides otherwise, any Officer so designated shall
have such authority and perform such duties as the Board may delegate such
Officer and that are normally associated with that office in the context of a
Delaware corporation as provided under the Delaware General Corporation Law,
subject to (a) any specific delegation of authority and duties made to such
Officer by the Board pursuant to this Section 4.01 and to Section 4.04, or (b)
any delegation of authority and duties made to the Board pursuant to Section
3.01 of this Agreement. The Officers will include a President ("President"),
Secretary ("Secretary"), one or more Vice Presidents ("Vice President"), and any
other Officers as the Board may appoint including, but not limited to, a
Treasurer ("Treasurer"), and one or more assistant Secretaries or Treasurers
("Assistant Secretary" or "Assistant Treasurer").
4.02 TERM. Each Officer shall hold office for the term designated and
until his successor shall be duly designated and shall qualify, or until his
death, resignation, or removal as provided in this Agreement. Any Person may
hold any number of offices.
4.03 QUALIFICATIONS. No Officer need be a Manager, Member, Delaware
resident, or United States citizen. Designation of a Person as an Officer shall
not of itself create any contract rights.
4.04 DUTIES. Officers will have the authority and perform duties in the
management of the Company as provided in this Article IV of the Agreement.
(a) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will have
those powers and duties delegated by the Board.
(b) PRESIDENT. Subject to the direction of the Board, the President
will have general management and control of the business and property of the
Company in its ordinary course of business with all such powers in respect to
general management and control as are reasonably incident to such
responsibilities.
(c) VICE PRESIDENT. The Vice President will have those powers and
duties delegated by the Board or the President. If more than one, the Vice
Presidents, in the order designated by the Board, or if in the absence of such
designation, as determined by the length of term each has held the office of the
Vice President, will exercise the powers of the President during the President's
absence or incapacitation.
(d) TREASURER. The Treasurer will have the care and custody of all
of the Company funds and shall deposit them in such banks or other depositories
as the Board directs and approves. The Treasurer shall keep a complete and
accurate account of all monies received and paid on account of the Company and
must render a statement of the Company accounts whenever the Board so requires.
Except as otherwise provided by the Board, the Treasurer shall perform all other
necessary acts and duties in connection with the administration of the Company's
financial affairs and generally perform all the duties ordinarily appertaining
to the office of the Treasurer. In the absence of the Treasurer, the person
designated by the Board, if any, will perform the Treasurer's duties.
(e) ASSISTANT TREASURER. Each assistant Treasurer will have those
powers and duties delegated by the Board or President. If more than one, the
Assistant Treasurers, in the order designated by the Board or, if in the absence
of any designation, as determined by the length of term that each has held the
office of Assistant Treasurer, will exercise the powers of the Treasurer during
the Treasurer's absence or incapacitation.
(f) SECRETARY. Except as otherwise provided in this Agreement, the
Secretary shall keep the minutes of all meetings of the Board or consents in
lieu of such meetings in the Company's minute books, and shall cause notice of
the meetings to be given when requested by any person authorized to call a
meeting. The Secretary may sign with the President in the name of the Company,
all contracts of the Company. The Secretary shall, in general, perform such
other duties incident to the office of the Secretary, or as delegated by the
Board or the President.
(g) ASSISTANT SECRETARY. Each assistant Secretary will have those
powers and duties delegated by the Board or the President. If more than one, the
Assistant Secretaries, in the order designated by the Board or, if in the
absence of such designation, as determined by the length of term each has held
the office of the Assistant Secretary, will exercise the powers of the Secretary
during the Secretary's absence or incapacitation.
4.05 REMOVAL AND RESIGNATION. Any Officer appointed by the Board may be
removed as such, with or without cause and at any time, by the Board 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. Any Officer of the Company may resign as such at
any time upon written notice to the Company. Such resignation shall be made in
writing and shall take effect at the time specified therein or, if no time is
specified therein, at the time of its receipt by the Board. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly
provided in the resignation.
4.06 VACANCIES. The Board may fill any vacancy occurring at any time and
in any office of the Company.
4.07 COMPENSATION. The compensation, if any, of the Officers shall be
fixed from time
to time by the Board; provided, however, that the Board may delegate to one or
more Managers who are Officers the authority to fix such compensation.
ARTICLE V
CONTRIBUTIONS TO CAPITAL
5.01 FUNDING.
(a) The Member shall make capital contributions to the Company at
such times, in such manner, and in such amounts as the Member may determine in
its sole discretion.
(b) If the Board determines that the Company requires funds for its
day to day activities or for any other Company purpose, then the Board may cause
the Company to borrow funds from any person on terms Approved by the Board.
(c) The Member shall not be obligated to provide additional capital
to the Company or its creditors by way of contribution, loan, or otherwise
beyond the amount of the capital contributions required of the Member pursuant
to this Section 5.01.
5.02 BENEFITS OF AGREEMENT. Nothing in this Agreement, and, without
limiting the generality of the foregoing, in this Article V, expressed or
implied, is intended or shall be construed to give to any creditor of the
Company or to any creditor of the Member or any other person or entity
whatsoever, other than the Member and the Company, any legal or equitable right,
remedy, or claim under or in respect of this Agreement or any covenant,
condition, or provision herein contained, and such provisions are and shall be
held to be for the sole and exclusive benefit of the Member and the Company.
ARTICLE VI
ACCOUNTING; DISTRIBUTIONS
6.01 TAX STATUS. Notwithstanding any provision contained in this Agreement
to the contrary, the parties agree that the Company, solely for federal income
tax purposes, will not be subject to the provisions of Subchapter C or
Subchapter K of the Code, but shall be disregarded as an entity separate from
the Member.
6.02 ACCOUNTING.
(a) The fiscal year of the Company shall end on the last day of
December of each year.
(b) The books of account of the Company shall be kept and maintained
at all times at the principal place of business of the Company or at such other
place or places Approved by the Board. The books of account shall be maintained
according to federal income tax principles using the accrual method of
accounting, consistently applied, and shall show all items of income and
expense.
6.03 BANK ACCOUNTS. Funds of the Company shall be deposited in a Company
account or accounts in the bank or banks as Approved by the Board. Withdrawals
from bank accounts shall only be made by such parties as may be Approved by the
Board.
6.04 DISTRIBUTIONS. The Company shall distribute funds to the Member at
such times and in such amounts as Approved by the Board, in its sole discretion.
In determining the amount of funds to distribute pursuant to this Section 6.04,
the Board may consider such factors as the need to allocate funds to any
reserves for Company contingencies or any other Company purposes that the Board
deems necessary or appropriate.
ARTICLE VII
DISSOLUTION, LIQUIDATION AND TERMINATION
7.01 DISSOLUTION.
(a) The Company shall be dissolved and its affairs shall be wound up
upon the first of the following to occur:
(i) The dissolution of the Member, unless continued by its
successors or assigns;
(ii) The sale or other disposition, not including an exchange,
of substantially all of the assets of the Company (except under
circumstances where all or a portion of the purchase price is payable
after the closing of the sale or other disposition); or
(iii) Subject to any obligations of the Company, when approved
by the Member.
(b) Dissolution of the Company shall be effective as of the day on
which the event occurs giving rise to the dissolution, but the Company shall not
terminate until there has been a winding up of the Company's business and
affairs, and the Company Assets have been distributed as provided in the Act and
in Section 7.02 of this Agreement.
7.02 LIQUIDATION AND TERMINATION. Upon dissolution of the Company, the
Board shall act as liquidator or may appoint one or more Managers or officers
(with his consent) as liquidators. The liquidators shall proceed diligently to
wind up the affairs of the Company and make final distributions as provided in
this Section 7.02 and in the Act. The costs of liquidation shall be borne as a
Company expense. Until final distribution, the liquidators shall continue to
operate the Company Assets and the Company's affairs with all the power and
authority of the Board. The steps to be accomplished by the liquidators are as
follows:
(a) As promptly as possible after dissolution and again after final
liquidation, the liquidator shall cause an accounting to be made by a
recognized firm of certified public accountants of the Company Assets and
the Company's liabilities and operations through the last day of the
calendar month in which the dissolution occurs or the final liquidation is
completed, as the case may be;
(b) The liquidator may cause all or any part of the Company Assets
to be sold to any Person (including, without limitation, to the Member) as
the liquidator shall reasonably determine, and any resulting gain or loss
from each such sale shall be computed and allocated to the Member;
(c) The liquidator shall pay, satisfy or discharge from Company
Assets all of the debts, liabilities and obligations of the Company
(including, without limitation, all expenses incurred in liquidation, but
excluding liabilities to the Member on account of its capital
contributions) in the order of priority as provided by law, or otherwise
make adequate provision for payment and discharge thereof (including,
without limitation, the establishment of a cash escrow fund for contingent
liabilities in such amount and for such term as the liquidator may
reasonably determine);
(d) After payment, satisfaction or discharge of the Company's debts,
liabilities and obligations (or adequate provision therefor) has been made
pursuant to clause (c) of this Section 7.02, all remaining Company Assets
shall be distributed to the Member.
All distributions in kind of the Company Assets to the Member shall be
made subject to the liability relating to such Company Assets incurred or for
which the Company has committed prior to the date of termination of the Company
and such costs, expenses and liabilities shall be allocated to the distributee
in accordance with this Section 7.02.
7.03 CERTIFICATE OF CANCELLATION. When all liabilities and obligations of
the Company
have been paid or discharged, or adequate provision has been made therefor, and
all of the remaining Company Assets have been distributed to the Member, the
Company shall be terminated and a Certificate of Cancellation shall be executed
on behalf of the Company by a Manager (or such other Person or Persons as the
Act may require or permit) and shall be filed with the Office of the Secretary
of State of the State of Delaware, and the Board or such other Person or Persons
shall take such other actions, and shall execute, acknowledge and file any and
all other instruments, as may be necessary or appropriate to reflect the
dissolution and termination of the Company.
ARTICLE VIII
INDEMNIFICATION
8.01 MANDATORY INDEMNIFICATION OF THE MEMBER AND MANAGERS. Any Person who
was or is 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 (hereafter 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
such Person is or was a Member or Manager, or while a Manager is or was serving
at the request of the Company as a director, manager, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, limited liability company or partnership, joint
venture, partnership, trust, sole proprietorship, employee benefit plan or other
enterprise, shall be indemnified by the Company against judgments, penalties
(including, without limitation, excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including reasonable attorneys'
fees) actually and reasonably incurred by such Person in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company. The provisions of
this Article VIII shall not apply to liabilities arising from such Person's bad
faith, willful misfeasance, gross negligence or reckless disregard for his duty
to the Company, as determined by a majority of disinterested Managers on the
Board, or if none, by the Member.
8.02 MANDATORY ADVANCEMENT OF EXPENSES. Expenses incurred by a Person of
the type entitled to be indemnified under Section 8.01 of this Agreement in
defending any Proceeding shall be paid or reimbursed by the Company in advance
of the final disposition of the Proceeding, without any determination as to such
Person's ultimate entitlement to indemnification under Section 8.01 of this
Agreement, upon receipt of a written affirmation by such Person of such Person's
good faith belief that such Person has met the standard of conduct necessary for
indemnification under applicable law 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 Person is not entitled to be indemnified by the Company as
authorized in Section 8.01 of this Agreement or otherwise. The written
undertaking shall be an unlimited general obligation of the Person but need not
be secured and shall be accepted without reference to financial ability to make
repayment.
8.03 INDEMNIFICATION OF OFFICERS, EMPLOYEES AND AGENTS. The Company shall
indemnify and pay 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 pay and advance expenses to a Manager under this Article VIII; and
the Company shall indemnify and pay and advance expenses to any Person who is
not or was not a Manager, officer, employee or agent of the Company but who is
or was 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 or partnership,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against such
Person and incurred by such Person in such a capacity or arising out of such
Person's status as such to the same extent and subject to the same conditions
that the Company may indemnify and pay and advance expenses to a Manager under
this Article VIII.
8.04 NONEXCLUSIVITY OF RIGHTS. The indemnification and advancement and
payment of expenses provided by this Article VIII (a) shall not be deemed
exclusive of any other rights to which a Manager or other Person seeking
indemnification may be entitled under any statute, provision of the Certificate
of Formation, agreement, vote of disinterested Managers on the Board, or
otherwise, both as to action in such Person's official capacity and as to action
in another capacity while holding such office, (b) shall continue as to any
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity and advancement and payment of expenses, and (c) shall inure
to the benefit of the heirs, executors, administrators, successors and assigns
of such Manager or other Person.
8.05 CONTRACT RIGHTS. The rights granted pursuant to this Article VIII
shall be deemed to be contract rights, and no amendment, modification or repeal
of this Article VIII 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.
8.06 INSURANCE. As Approved by the Board, the Company may purchase and
maintain insurance or other arrangement or both, at its expense, on behalf of
itself or any Person who is or was serving as a Manager, officer, employee or
agent of the Company, or is or was 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, partnership, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, against any
liability, expense or loss, whether or not the Company would have the power to
indemnify such Person against such liability under the provisions of this
Article VIII.
8.07 APPEARANCE AS A WITNESS. Notwithstanding any other provision of this
Article VIII, the Company may pay or reimburse expenses incurred by a Person in
connection with such Person's appearance as a witness or other participation in
a Proceeding at a time when such Person is not a named defendant or respondent
in the Proceeding.
8.08 SAVINGS CLAUSE. If this Article VIII 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 Manager or any other Person
indemnified pursuant to this Article VIII as to costs, charges and expenses
(including, without limitation, 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 VIII that shall not have
been invalidated and to the fullest extent permitted by applicable law.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents provided for or permitted to be
given under this Agreement shall be in writing and shall be given either by
depositing such writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering such writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement shall
be effective on receipt by the Person to whom sent. All notices, requests, and
consents to be sent to the Member shall be sent to or made at the address set
forth next to the Member's signature on the signature page attached hereto or
such other address as the Member may specify by notice to the Company or the
Board. Any notice, request, or consent to the Company or the Board must be given
to the Board at the following address: 301 Commerce Street, Suite 3025, Fort
Worth, Texas 76102. Whenever any notice is required to be given by law, the
Certificate of Formation or this Agreement, a written waiver thereof, signed by
the Person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
9.02 GOVERNING LAW; SEVERABILITY. This Agreement shall be 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. 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 shall not be affected thereby and such provision shall be enforced
to the fullest extent permitted by law.
9.03 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, the Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
9.04 HEADINGS AND SECTIONS. The headings in this Agreement are inserted
for convenience only and are in no way intended to describe, interpret, define,
or limit the scope, extent or intent of this Agreement or any provision hereof.
Unless the context requires otherwise,
all references in this Agreement to Sections or Articles shall be deemed to mean
and refer to Sections or Articles of this Agreement.
9.05 NUMBERS AND GENDER. Where the context so indicates, the masculine
shall include feminine and neuter, and the neuter shall include the masculine
and feminine, and the singular shall include the plural.
9.06 BINDING EFFECT. Except as otherwise provided in this Agreement to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
Member, its successors and assigns.
9.07 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and shall be
binding upon the Member. All of such counterparts shall constitute the same
Agreement.
9.08 CONFLICTS OF INTEREST. Subject to the other express provisions of
this Agreement or except as otherwise expressly agreed in writing, each Manager,
Member and officer of the Company at any time and from time to time 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 or the Member, Manager
or officer the right to participate therein.
9.09 AMENDMENT OR MODIFICATION OF AGREEMENT. This Agreement may be amended
or modified from time to time only by a written instrument adopted by the Member
and the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
date first written above.
"The Member"
BSL HOLDINGS, INC., a Delaware corporation
By: /s/ Donald F. McAleenan
--------------------------------------
Donald F. McAleenan, Senior Vice
President
"The Company"
MAYFIELD BUILDING, LLC, a Delaware
limited liability company
By: BSL Holdings, Inc., a Delaware
corporation, Member
By. /s/ Donald F. McAleenan
----------------------------------
Donald F. McAleenan,
Senior Vice President