Exhibit 3.32
Limited Liability Company Agreement of FR Sadsbury Second, LLC, dated as of
August 10, 2004, by its sole member, FR Sadsbury, LLC.
LIMITED LIABILITY COMPANY AGREEMENT
OF
FR SADSBURY SECOND, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of FR SADSBURY SECOND, LLC, a
Delaware limited liability company (the "Company"), is made as of the 10th day
of August, 2004, by its sole member, FR Sadsbury, LLC, a Delaware limited
liability company (the "Member").
The Member owns all of the membership interests in the Company and, as the
sole member of the Company, desires to execute this Agreement to set forth the
purpose of the Company and the manner in which the Company shall operate.
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, and in addition to capitalized terms
defined elsewhere in this Agreement, the following terms shall have the meanings
ascribed below:
"Act" means the Delaware Limited Liability Company Act, as amended from
time to time.
"Affiliate" means, with respect to any referenced Person, (i) a member of
such Person's immediate family; and (ii) any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with the
Person in question. As used herein, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this limited liability company agreement of FR Sadsbury
Second, LLC, including all Exhibits hereto, as amended from time to time.
"Available Cash Flow" means such portion of the cash in hand or in bank
accounts of the Company as is determined by the Member to be available for
distribution to the Member after payment of the current liabilities, obligations
and expenses of the Company, and after reasonable provision has been made for
reasonably required reserves.
"Code" means the Internal Revenue Code of 1986, as amended, including
corresponding provisions of succeeding law.
"General Partner Partnership" means FR Sadsbury General Partner, LP a
Delaware limited partnership, which is the general partner of the Property
Holding Partnership.
"Member" means FR Sadsbury, LLC. and any Person who subsequently is
admitted as a member of the Company, and "Members" means all Persons admitted as
members of the Company.
"Percentage Interests" means the percentages allocated to the Members as
set forth on Exhibit A hereto, as the same may be amended from time to time in
accordance with this Agreement.
"Person" means any individual, corporation, partnership, trust, limited
liability company or other organization or entity.
"Property Holding Partnership" means FR Sadsbury Property Holding, LP, a
Delaware limited partnership formed to hold certain parcels of real estate,
including the lands, buildings and other improvements now located or hereafter
constructed thereon, consisting of approximately 28 acres with all easements and
other rights benefiting such ground and all improvements thereon, if any,
situate in Sadsbury Township, Chester County, Pennsylvania.
"Regulations" means the Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time.
ARTICLE II
GENERAL
2.1 Formation of Company.
2.1.1 The Company was formed as a limited liability company pursuant
to the Act by the filing of the certificate of formation with the Office of the
Secretary of State of the State of Delaware on October 14, 2003. Except as
modified by this Agreement, the Company shall be governed by the Act.
2.1.2 The Member shall execute such other documents and perform such
other acts as shall constitute compliance with all requirements for the
formation and operation of the Company pursuant to the Act and to qualify to do
business in any other jurisdiction in which the Company conducts business.
2.2 Name of Company. The name of the Company is FR Sadsbury Second, LLC, or
such other name as the Member may from time to time determine, subject to the
requirements of the Act and other applicable law.
2.3 Registered Office and Registered Agent. The initial registered agent
and registered office of the Company shall be ATA Corporate Services, Inc.,
Suite 1200, 222 Delaware Avenue, Wilmington, Delaware. The registered agent and
registered office of the Company may be changed from time to time in the
discretion of the Member, subject to the
requirements of the Act. The business of the Company may be conducted at such
office or offices as the Member may determine from time to time.
2.4 Purpose. Notwithstanding any provision hereof or of any other document
governing the formation, management or operation of the Company to the contrary,
the nature of the business and of the purposes to be conducted and promoted by
the Company is to engage solely in the following activities:
2.4.1 To acquire, own, hold, manage and sell a general partnership
interest in the General Partner Partnership, and to exercise all the rights,
privileges, duties and responsibilities of the general partner of the General
Partner Partnership, all in accordance with the limited partnership agreement of
the General Partner Partnership;
2.4.2 Acting on its own behalf and as the general partner of the
General Partner Partnership, to engage in any activity, to enter into, perform
and carry out any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust, assignment, assignment of lease, security agreement, or financing
statement of any kind, and to borrow money and issue evidences of indebtedness,
whether or not secured by liens, in connection with the foregoing purpose;
2.4.3 To engage in and conduct such other activities directly related
to the foregoing purpose as may be necessary, advisable, or appropriate, in the
reasonable opinion of the Member, to further the foregoing purpose; and
2.4.4 To exercise any powers permitted under the Act which are
incidental to the foregoing or necessary or appropriate to accomplish the
foregoing.
The Company shall not engage in any business or activity other than as
permitted in this Section 2.4.
2.5 Term. The Company shall have perpetual existence, and shall continue
until dissolved pursuant to Article IX. Dissolution of the Company shall occur
only upon the occurrence of one of an event specified in Article IX.
2.6 Tax Status. It is intended that, for federal income tax purposes, the
Company will be treated as a disregarded entity as long as it is deemed to have
only a single Member for federal income tax purposes, or as a partnership if it
is deemed to have more than a single Member for federal income tax purposes. No
election shall be made under the Regulations to treat the Company as a
corporation for federal income tax purposes unless all of the Members
unanimously consent to the filing of such an election.
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ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Contributions.
3.1.1 The Member shall contribute the cash or property as set forth on
Exhibit A to the capital of the Company.
3.1.2 No Member shall be required to contribute any additional capital
to the Company, whether upon the liquidation of the Company or otherwise. No
Member shall have any personal liability for any obligations of the Company.
3.2 Loans. A Member may, at any time, make or cause a loan to be made to
the Company in such amount and on such terms as the Company and the Member
agree.
ARTICLE IV
DISTRIBUTIONS
4.1 Available Cash Flow. Available Cash Flow, as determined by the Member,
shall be distributed to the Members in proportion to their Percentage Interests
on an annual or more frequent basis as determined by the Member.
4.2 Liquidation. Notwithstanding anything in this Agreement to the
contrary, upon the liquidating and winding up of the Company, distributions to
the Members shall be made as set forth in Section 9.3 below.
ARTICLE V
ALLOCATIONS
5.1 General. If the Company is ever considered a partnership for federal
income tax purposes (rather than a disregarded entity), then, except as
otherwise required under section 704(b) of the Code or the Regulations
promulgated thereunder, all income, gain, loss, deduction and credit of the
Company shall be allocated to the Members in proportion to their respective
Percentage Interests.
ARTICLE VI
MANAGEMENT
6.1 General. Except to the extent delegated to the officers herein, the
Company shall be managed solely by the Member. If, at any time, the Company has
more than one Member, all management decisions shall be made by Members holding
at least a majority of the Percentage
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Interests in the Company. The liability of each Member shall be limited to the
maximum extent permitted by the Act.
6.2 Officers. The Member may, in its sole discretion, elect to designate
one or more officers to act on behalf of the Company. If the Member elects to
designate officers, the following provisions of this Section 6.2 shall apply,
unless provided otherwise in writing by the Member.
6.2.1 The officers of the Company shall consist of a president, and
one or more senior vice presidents, vice presidents, and any other officers as
may be established by the Member. The officers of the Company shall be elected
by the Member. Each officer shall hold office until the officer's successor is
elected and qualifies or until the officer's death, resignation or removal in
the manner hereinafter provided. The Member may, in its discretion, leave any
office vacant.
6.2.2 Any officer or agent of the Company may be removed by the Member
at any time for any or no reason, but the removal shall be without prejudice to
the contract rights, if any, of the person so removed. Any officer of the
Company may resign at any time by giving written notice of the resignation to
the Member. The acceptance of a resignation shall not be necessary to make it
effective.
6.2.3 A vacancy in any office may be filled by the Member.
6.2.4 The president shall in general supervise and control all of the
business and affairs of the Company. The president may execute any deed,
mortgage, bond, contract or other instrument which the president in his
discretion deems in the best interest of the Company except in cases where
execution shall be expressly reserved by the Member or delegated by this
Agreement to some other officer or agent of the Company or shall be required by
law to be otherwise executed; and in general shall perform all duties incident
to the office of president and any other duties prescribed by the Member from
time to time.
6.2.5 In the absence of the president or in the event of a vacancy in
that office, the vice president (or if there is more than one vice president,
the vice presidents in the order designated at the time of their election, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the president and when so acting shall have all the powers
of and be subject to all the restrictions upon the president; and shall perform
such other duties as from time to time may be assigned to them by the president
or by the Members. The Members may designate one or more vice presidents as
senior vice president or as vice president for particular areas of
responsibility.
6.2.6 Whether or not officers have been appointed by the Member, the
Member shall retain authority to act on behalf of the Company, and all
contracts, agreements, deeds, notes or other instruments executed by the Member
on behalf of the Company shall be duly and validly executed on behalf of the
Company.
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6.3 Additional Limitations and Covenants. Notwithstanding any provision
hereof or of any other document governing the formation, management or operation
of the Company to the contrary, and in addition to the other provisions set
forth in this Agreement, in order to preserve and ensure the separate and
distinct identity of the Company, the Company shall conduct its affairs in
accordance with the following provisions:
6.3.1 The Company shall operate its business separate and apart from
that of any of its Affiliates.
6.3.2 The Company shall maintain Company records and books of account
separate from those of any Affiliate of the Company.
6.3.3 The Company shall conduct its own business in its own name.
6.3.4 The Company shall hold itself out as an entity separate from any
Affiliate.
ARTICLE VII
FISCAL MATTERS
7.1 Company Books; Access to Information. The Company shall maintain at its
principal office (as the same may be designated by the Member from time to
time), full and accurate books of the Company, which shall fully reflect each of
its transactions, including the cash distributions and allocations provided for
in Articles IV and V, and all other records necessary for recording the
Company's business or required to be maintained at such office(s) under the Act
or under any other applicable law.
7.2 Tax Returns and Financial Statements. The Member shall cause any
necessary federal, state and local income tax returns and reports required of
the Company to be prepared and timely filed.
7.3 Accounting and Tax Decisions. All decisions as to accounting and tax
matters shall be made by the Member. The Member may rely upon the advice of the
Company's counsel or accountants as to the appropriate accounting and tax
decisions. The Member may elect to treat certain items differently for
accounting purposes than the manner in which such items are treated for tax
purposes.
7.4 Bank Accounts. The Member shall be responsible for causing one or more
bank accounts to be maintained in the Company's name into which all funds of the
Company shall be deposited and from which payment of all Company business
expenditures shall be made. Notwithstanding the foregoing, funds of the Company
may be held in one or more accounts maintained by Affiliates of the Company or
its Members, provided that an accurate accounting of deposits and withdrawals on
behalf of the Company is maintained.
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ARTICLE VIII
ASSIGNABILITY OF MEMBER'S INTERESTS
8.1 Permitted Transfers. If there is more than one Member of the Company,
interests in the Company may be transferred only with the unanimous written
consent of the Members.
ARTICLE IX
DISSOLUTION AND TERMINATION
9.1 Liquidating Events.
9.1.1 The Company shall dissolve and commence winding up and
liquidating upon the first to occur of any of the following ("Liquidating
Events"):
(i) The dissolution, winding up and liquidation of the Company is
approved by the unanimous consent of the Members;
(ii) A sale of all or substantially all of the assets of the
Company and the collection of the proceeds from such sale;
(iii) There are no Members, provided that the Company shall not
be liquidated in such event if, within 90 days of the event that terminated
the membership of the last remaining Member, the personal representative or
other successor in interest to such Member agrees in writing to continue
the Company and to be admitted as a Member,
(iv) The entry of a decree of judicial dissolution under Section
18-802 of the Act.
9.1.2 Notwithstanding any provision of the Act, the Company shall not
dissolve prior to the occurrence of a Liquidating Event.
9.2 Dissolution, Winding Up and Termination. Upon the occurrence of a
Liquidating Event, the Member shall have the full power and authority to proceed
with the liquidation of the Company and to take all steps which it may deem
necessary or desirable to wind up the Company's affairs, having for such purpose
all the powers referred to and provided for in Article VI appropriate to
accomplish the same and allowing for a reasonable time in order to minimize
losses attendant to the liquidation, so that the Company may be terminated in
accordance with the Act.
9.3 Distributions Upon Winding Up and Termination. The proceeds and assets
of the Company upon its winding up and termination shall be distributed and
applied in the following
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order of priority, with no distribution being made in any category being set
forth below until each preceding category has been satisfied in full:
9.3.1 To creditors, including the Member and its Affiliates, to the
extent otherwise permitted by law, in satisfaction of liabilities of the Company
(whether by payment or the making of reasonable provision for payment thereof),
other than distributions to Members and former Members;
9.3.2 To Members and former Members in satisfaction of liabilities for
distributions under Sections 18-601 or 18-604 of the Act; and
9.3.3 To the Member (or, if there is more than one Member, to the
Members in accordance with their Percentage Interests).
ARTICLE X
MISCELLANEOUS
10.1 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Member, its successors and assigns. Each and every
successor to the Member, whether such successor acquires its interest by way of
gift, purchase, foreclosure, or by any other method, shall hold such interest
subject to all of the terms and provisions of this Agreement.
10.2 Amendment. This Agreement may be amended from time to time by the
Member or, if there is more than one Member, by the Members holding a majority
of the Percentage Interests in the Company.
10.3 No Third Party Beneficiaries. None of the provisions of this Agreement
are intended to benefit, and none shall inure to the benefit of or be
enforceable by, any creditors of the Company or any other third parties.
10.4 Entire Agreement. This Agreement contains the entire limited liability
company agreement of the Company and supersedes all prior understandings and
agreements concerning the subject matter hereof.
10.5 Captions. Titles or captions of articles and sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision thereof.
10.6 Number and Gender. All pronouns used herein shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as the identity of the
Person or Persons may require in the context, and the singular form of nouns,
pronouns and verbs shall include the plural, and vice versa, whichever the
context may require.
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10.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Member
has caused this Agreement to be duly executed as of the day and year first above
written.
MEMBER:
FR SADSBURY, LLC
By: First Industrial Development
Services, Inc., its sole member
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Authorized Signatory
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