LIMITED LIABILITY COMPANY AGREEMENT of BCP/GRAHAM HOLDINGS L.L.C.
Exhibit
3.186
of
BCP/XXXXXX HOLDINGS L.L.C.
THE UNDERSIGNED is executing this Limited Liability
Company Agreement (the “Agreement”) for the purpose of forming a
limited liability company (the “Company”) pursuant to the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. §§ 18-101 et seq. (the “Act”), and does hereby agree as
follows:
1. Name. The name of the Company shall be BCP/Xxxxxx
Holdings L.L.C., or such other name as the Members may from time to time hereafter designate.
2. Definitions.
Capitalized terms not otherwise defined herein shall have the meanings
set forth therefor in Section 18-101 of the Act.
3. Purpose. The Company is formed for the purpose of engaging in any lawful business
permitted by the Act or the laws of any jurisdiction in which the Company may do business. The
Company shall have the power to engage in all activities and transactions which the members deem
necessary or advisable in connection with the foregoing.
4. Offices.
(a) The principal place of business and office of the Company shall be located at, and the
Company’s business shall be conducted from, such place or places as the Members may designate from
time to time.
(b) The registered office of the Company in the State of Delaware shall be located at c/o
The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx
00000. The name and address of the registered agent of the Company for service of process on the
Company in the State of Delaware shall be The Corporation Trust Company, Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Members may from time to time change the
registered agent or office by an amendment to the certificate of formation of the Company.
5. Members. The name and business residence or address of each Member of the Company are as
set forth on Schedule A attached hereto. The business and affairs of the Company shall be
managed by the Members. The Members shall have the power to do any and all acts necessary or
convenient to or for the furtherance of the purposes described herein, including all powers, statutory
or otherwise, possessed by members under the laws of the state of Delaware. Each Member is
hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and
file the certificate of formation of the Company (and any amendments and/or restatements thereof)
and 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. The execution by one Member of any of the foregoing certificates (and any amendments
and/or restatements thereof) shall be sufficient.
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6. Term. The term of the, Company shall commence on
the date of filing of the certificate of formation of the Company
in accordance with the Act and shall continue until the Company
is dissolved and its affairs are wound up in accordance with
Section 13 of this Agreement and a certificate of cancellation is
filed in accordance with the Act.
7. Management of the Company. Any action to be taken by the Company shall
require the affirmative vote of Members holding a majority of the Limited Liability Company
Interests of the Company (except as otherwise expressly provided herein). Any action so
approved may be taken by any Member on behalf of the Company and any action so taken shall
bind the Company.
8. Capital Contributions. Members shall make capital contributions to the Company
in such amounts and at such times as they shall mutually agree pro rata in accordance with profit
sharing interests as set forth in Schedule A hereof (“Profit Sharing Interests”), which amounts
shall be set forth in the
books and records of the Company.
9. Assignments of Member Interest. A Member may not
sell, assign, pledge or otherwise transfer or encumber (collectively, a “Transfer”) any of its
Limited Liability Company Interest in the Company to any Person without the written consent of the
other Members, which consent may be granted or withheld in each of their sole and absolute
discretion.
10. Resignation. No Member shall have the right to resign from the Company except
with the consent of all of the Members and upon such terms and conditions as may be
specifically
agreed upon between the resigning Member and the remaining Members. The provisions hereof with
respect to distributions upon resignation are exclusive and no Member shall be entitled to claim
any further or different distribution upon resignation under Section 18-604 of the Act or
otherwise.
11. Allocations and Distributions. Distributions of cash or other assets of the
Company shall be made at Such times and in such amounts as the Members may determine.
Distributions shall be made to (and profits and losses of the Company shall be
allocated among) Members pro rata in accordance with each of their Profit Sharing
Interests, or in such other manner and in such amounts as all of the Members shall agree
from time to time and which shall be reflected in the books and records of the Company.
12. Return of Capital. No Member has the right to receive any distributions which
include a return of all or any part of such Member’s capital contribution, provided that upon
the dissolution and winding up of the Company, the assets of the Company shall be distributed as
provided in Section 18-804 of the Act.
13. Dissolution. The Company shall be dissolved and its affairs wound up upon the
first to occur of the following:
| (a) | August 31, 2043; or | ||
| (b) | The occurrence of an event causing a dissolution of the Company under Section 18-801 of the Act, except the Company shall not be dissolved upon the occurrence of an event that terminates the continued membership of a Member if (i) at the time of the occurrence of such event there are at least two Members of the Company, or (ii) |
| within ninety (90) days after the occurrence of such event, all remaining Members agree in writing to continue the business of the Company and to the appointment, effective as of the date of such event, of one or more additional Members. |
14. Amendments. This Agreement may be amended only
upon the written consent of all of the Members.
15. Miscellaneous. The Members shall not have any
liability for the debts, obligations or liabilities of the
Company except to the extent provided by the Act. This Agreement
shall be governed by, and construed under, the laws of the State
of Delaware, without regard to conflict of law rules.
16. Authorization.
(a) Notwithstanding any provision in this Agreement to the contrary, the Company is hereby
authorized, without the need for any further act, vote or consent of any Member, (i) to enter
into an Agreement and Plan of Recapitalization, Redemption and purchase (the “Recapitalization
Agreement”) between Xxxxxx Packaging Company, Xxxxxx Packaging Corporation, Xxxxxx Family Growth
Partnership, Xxxxxx Engineering Corporation Xxxxxx Capital Corporation, Xxxxxx Recycling
Corporation, Xxxxxx X. Xxxxxx, BMP/Xxxxxx Holdings Corporation and the Company, dated as of December 18,
1997, (ii) to enter into any other agreement contemplated by, or in connection with, the
Recapitalization Agreement and (iii) to take any action contemplated or arising out of the
Recapitalization Agreement.
(b) Notwithstanding any provision in this Agreement to the contrary,
any Member or duly appointed officer of the Company be and each of them hereby is, acting singly or
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jointly, authorized in the name and on behalf of the Company to execute and deliver the
Recapitalization Agreement and such other agreements or documents and to take such other action as
it or they may deem necessary or advisable to carry out fully the intent and purposes of this
Section 16.
17. Officers. The Company, and each Member on behalf of the Company, acting singly or
jointly, may employ and retain persons as may be necessary or appropriate for the conduct of the
Company’s business (subject to the supervision and control of the Members), including employees
and agents who may be designated as officers with titles, including, but not limited to,
“chairman,” “chief executive officer,” “president, ” “vice president, ” “treasurer,” “secretary,”
“managing director, “chief financial officer,” “assistant treasurer” and “assistant secretary” as
and to the extent authorized by the Members.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of December 12, 1997.
| By: | BMP/Xxxxxx Holdings Corporation Member |
|||
| By: | /s/ [ILLEGIBLE] | |||
| Title: | ||||
SCHEDULE A (as of December 12, 1997)
| Name and Address of Members | Profit Sharing Interests | ||||
BMP/Xxxxxx Holdings Corporation c/o The Blackstone Group L.P. 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 |
100% | ||||
