Exhibit 21.2
OPERATING AGREEMENT
OF
NEW ASSET SUBSIDIARY, LLC
THIS OPERATING AGREEMENT (the "AGREEMENT") is made and entered into as of
the 22nd day of January, 2001, by and between New Asset Subsidiary, LLC (the
"COMPANY") and BFA Liquidation Trust, an Arizona trust, as the sole Member (the
"MEMBER") of the Company.
1. FORMATION. The Member has formed an Arizona limited liability company
under the name "NEW ASSET SUBSIDIARY, LLC" pursuant to the Arizona Limited
Liability Company Act (the "ACT"), effective upon the filing of the Articles of
Organization (the "ARTICLES") for the Company on January 22, 2001 (the
"EFFECTIVE DATE").
2. PRINCIPAL OFFICE AND PLACE OF BUSINESS. The principal office and place
of business (the "PRINCIPAL OFFICE") of the Company shall be 0000 Xxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or such other place as the Member shall
from time to time determine.
3. AGENT FOR SERVICE OF PROCESS. The agent for service of process for the
Company shall be: Xxxxxx Service Corporation of Arizona or such other person as
the Member shall from time to time appoint.
4. PURPOSE. The Company shall have the power to pursue any and all
activities necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of such purposes as are from
time to time determined by the Member and that are permissible under the Act.
5. TERM. The term of the Company shall commence on the Effective Date and
shall continue until dissolved.
6. CAPITAL CONTRIBUTIONS. The Member may make capital contributions to the
Company in such amounts and at such times as the Member shall determine in its
sole discretion.
7. DISTRIBUTIONS OF AVAILABLE CASH FLOW. Distributions of available cash
flow shall be made in such amounts and at such times as the Member shall
determine in its sole discretion.
8. MANAGEMENT. The Member shall have full, exclusive and complete power to
manage and control the business and affairs of the Company and shall have all of
the rights and powers provided to a member of a member-managed limited liability
company by law, including the power and authority to execute instruments and
documents, to mortgage or dispose of any real property held in the name of the
Company, and to take any other actions on behalf of the Company, whether or not
such actions are for carrying on the business of the Company in its usual way.
9. BANKING RESOLUTION. The Member shall open such banking accounts for and
in the name of Company as the Member deems necessary and shall enter into such
deposit agreements as are required by the financial institutions at which such
accounts are opened. The Member and such other person or entities designated in
writing by the Member shall have signing authority with respect to such bank
accounts. Funds deposited into such accounts shall be used only for the business
of the Company.
10. INDEMNIFICATION OF THE MEMBER. The Company, its receiver or trustee
shall indemnify, defend and hold harmless the Member and its affiliates (each,
an "ACTOR"), to the extent of the Company's assets, for, from and against any
liability, damage, cost, expense, loss, claim or judgment incurred by the Actor
arising out of any claim based upon acts performed or omitted to be performed by
the Actor in connection with the business of the Company, including without
limitation, attorneys' fees and costs incurred by the Actor in settlement or
defense of such claims. Notwithstanding the foregoing, no Actor shall be so
indemnified, defended or held harmless for claims based upon acts or omissions
in breach of this Agreement or which constitute fraud, gross negligence, or
willful misconduct. Amounts incurred by an Actor in connection with any action
or suit arising out of or in connection with Company affairs shall be reimbursed
by the Company. "AFFILIATE" means a person or entity who, with respect to the
Member: (a) directly or indirectly controls, is controlled by or is under common
control with the Member; (b) owns or controls 10 percent or more of the
outstanding voting securities of the Member; (c) is an officer, director,
shareholder, partner, trustee or member of the Member; or (d) if the Member is
an officer, director, shareholder, partner or member of any entity, the entity
for which the Member acts in any such capacity.
11. LIABILITY. No Actor shall be personally liable, responsible or
accountable in damages or otherwise to the Company for any act or omission
performed or omitted by such Actor in connection with the Company or its
business. The Member's liability for the debts and obligations of the Company
shall be limited as set forth in the Act and other applicable law.
12. REIMBURSABLE EXPENSES. The Company will reimburse the Member for all
actual out-of-pocket third-party expenses incurred in connection with the
organization of the Company and with the carrying out of the duties set forth in
this Agreement.
13. RECORDS. The Member shall keep or cause to be kept at the Principal
Office of the Company the following: (a) a written record of the full name and
business, residence or mailing address of the Member; (b) a copy of the Articles
and all amendments thereto; (c) copies of all written operating agreements and
all amendments to such agreements, including any prior written operating
agreements no longer in effect; (d) copies of any written and signed promises by
the Member to make capital contributions to the Company; (e) copies of the
Company's federal, state and local income tax returns and reports, if any, for
the three most recent years; (f) copies of any prepared financial statements of
the Company for the three most recent years; and (g) minutes of every meeting of
the members of the Company as well as any written consents or actions of such
members taken without a meeting.
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14. DISSOLUTION. The Company shall be dissolved upon the election of the
Member. A Withdrawal Event with respect to the Member shall not dissolve the
Company, unless any assignees of the Member's interest do not elect to continue
the Company and admit a member within 90 days of such Withdrawal Event.
"WITHDRAWAL EVENT" shall mean those events and circumstances set forth in
Section 29-733 of the Act.
15. FILING UPON DISSOLUTION. As soon as possible following the dissolution
of the Company, the Member shall execute and file a Notice of Winding Up with
the Arizona Corporation Commission as required by the Act.
16. LIQUIDATION. Upon dissolution of the Company, it shall be wound up and
liquidated as rapidly as business circumstances permit. The Member shall act as
the liquidating trustee, and the assets of the Company shall be liquidated and
the proceeds thereof shall be paid (to the extent permitted by applicable law)
in the following order: (a) first, to creditors, including the Member if it is a
creditor, in the order and priority required by applicable law; (b) second, to a
reserve for contingent liabilities to be distributed at the time and in the
manner as the liquidating trustee determines in its sole discretion; and (c)
third, to the Member.
17. ARTICLES OF TERMINATION. When all debts, liabilities and obligations
have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets have been distributed, Articles of
Termination shall be executed and filed by the liquidating trustee with the
Arizona Corporation Commission as required by the Act.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona, without regard to its
conflicts of laws principles.
19. SEVERABILITY. If any provision of this Agreement shall be conclusively
determined by a court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement shall not be affected thereby.
20. BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall inure to benefit of and be binding upon the Member and its successors and
assigns.
21. TITLES AND CAPTIONS. All article, section and paragraph titles and
captions contained in this Agreement are for convenience only and are not a part
of the context hereof.
22. PRONOUNS AND PLURALS. All pronouns and any variations thereof are
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the appropriate person may require.
23. NO THIRD PARTY RIGHTS. This Agreement is intended to create enforceable
rights between the parties hereto only, and creates no rights in, or obligations
to, any other persons.
24. AMENDMENTS. This Agreement may not be amended except by a written
document executed by the Member and the Company.
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25. CREDITORS. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditors of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
SOLE MEMBER: COMPANY:
BFA LIQUIDATION TRUST, NEW ASSET SUBSIDIARY, LLC, an
an Arizona trust Arizona limited liability company
By: BFA Liquidation Trust,
/s/ Xxxxxxx X. Xxxxxx, Xx. Its: Sole Member
----------------------------------------
By: Xxxxxxx X. Xxxxxx, Xx., not in his /s/ Xxxxxxx X. Xxxxxx, Xx.
individual capacity, but solely as -----------------------------------
Liquidating Trustee By: Xxxxxxx X. Xxxxxx, Xx., not in
his individual capacity, but
solely as Liquidating Trustee
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