Exhibit 3.12
BRAM III NEIGHBORHOODS, LLC
LIMITED LIABILITY COMPANY OPERATING AGREEEMENT
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (this "Agreement") is made
and entered into as of the 29th day of July, 2004, by Neighborhoods Holdings,
LLC (the sole "Member").
RECITALS
A. Bram III Neighborhoods, LLC (the "Company") was organized pursuant to
the Articles of Organization filed with, and approved by, the Virginia
State Corporation Commission on July 29, 2004. The Member owns all of
the Interests (as such term is hereinafter defined) in the Company.
B. The Member has agreed to enter into this Agreement to regulate the
affairs of the Company and the conduct of its business.
C. The Member has agreed that this Agreement shall serve as an "operating
agreement" within the meaning of Section 13.1-1023 of the Code of
Virginia.
AGREEMENT:
NOW THEREFORE, it is agreed as follows:
1. Formation and Name. The Member hereby agrees to and forms a limited
liability company under the name of "Brain III Neighborhoods, LLC" (the
"Company"), pursuant to the provisions of the Act and this Agreement. The
Member has executed and filed the Articles of Organization attached hereto
as Exhibit A, with the State Corporation Commission of Virginia ("SCC").
2. Principal Office. The initial principal place of business of the Company
shall be located at 0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000. The Company may relocate the principal place of business of the
Company and have such additional offices as the Member decides.
3. Registered Office and Registered Agent. The address of the registered
office of the Company is 0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000. The name of the company's registered agent at such address
is Xxxxxx X. Xxxxxxxx, Esquire, a member of the bar of the Commonwealth of
Virginia. Such registered agent is a resident of the Commonwealth of
Virginia and actually resides therein. The Member may select any person
permitted by applicable law to act as registered agent for the Company in
each jurisdiction in which it is necessary or appropriate for the Company
to have a registered agent, and may replace any such person from time to
time.
4. Term. The Company shall have a term beginning on the date the Articles of
Organization are filed and received for recordation by the SCC, and shall
continue in full force and
effect until December 31, 2015 unless sooner terminated pursuant to the
terms of this Agreement.
5. Purposes. The purposes for which the Company are formed are as follows: (a)
engage in the development and sale of residential homes; (b) to have and
exercise all powers and to conduct such other business activities as are
permitted by the laws of the Commonwealth of Virginia on limited liability
companies formed pursuant to the Virginia Limited Liability Company Act;
and (c) to do any and all things necessary, convenient or incidental to the
achievement of the foregoing.
6. Powers. The Company shall have the power to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to, or convenient
for, the furtherance and accomplishment of its business and purposes,
including the following powers:
A. To acquire real property and to build and construct single family
residential homes and communities;
B. To sell, transfer, assign, convey, mortgage or otherwise dispose of or
deal with all or any part of the property of the Company;
C. To enter into and carry out contracts and agreements necessary to
accomplish the purposes of the Company;
D. To raise and provide such funds as may be necessary to further the
business and purposes of the Company and to borrow money and to issue
promissory notes and other evidences of indebtedness, and to secure
the same by mortgage or other lien on all or any part of the property
of the Company;
E. To employ or retain, on behalf of the Company, such persons as a
Member deems advisable in the operation and management of the business
of the Company, on such terms and at such compensation as the Member
shall deem reasonable;
F. To collect, receive and deposit all sums due or to become due to the
Company;
G. To pay any and all taxes, charges and assessments that may be levied,
assessed or imposed upon any property of the Company;
H. To demand, xxx for, collect, recover and receive all goods, claims,
debts, moneys, interest and demands whatsoever now due or that may
hereafter become due or belong to the Company, including the right to
institute any action suit, or other legal proceedings for the recovery
of any property, to the possession of which the Company may be
entitled, and to make, execute and deliver receipts, releases and
other discharges therefore under seal or otherwise;
I. To make, execute endorse, accept, collect and deliver any and all
bills of exchange, checks, drafts and notes of the Company;
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J. To defend, settle, adjust, compound, submit to arbitration and
compromise all actions, suits, accounts, reckonings, claims and
demands whatsoever that now are or hereafter shall be pending between
the Company and any person at law or in equity, in such manner and in
all respects as the Member deems fit;
K. To do any act not inconsistent with law which is appropriate to
promote and attain the purposes set forth in Section 5 hereto; and
L. To exercise all powers, not inconsistent with this Agreement, granted
by the Act to a limited liability company.
7. Member and Percentage Interest. The Company is one hundred percent (100%)
owned by Neighborhood Holdings, LLC. New members may be admitted to the
Company only upon the written consent of the Member(s) and on such terms
and conditions as shall be agreed upon the Member(s) and the new members.
8. Dealing with Successors. Unless named in this Agreement or unless admitted
to the Company as provided in this Agreement, no person shall be considered
a Member; and the Company, each Member, and any other persons having
business with the Company need deal only with the Member so named or so
admitted, and they shall not be required to deal with any other person by
reason of an unauthorized assignment by a Member or by reason of the death
or dissolution of a Member, except as provided in Section 15B. In the
absence of an authorized assignment or substitution (as provided in this
Agreement) of a Member, any payment to a Member or to such Member's
executors or administrators shall acquit the Company of all liabilities to
any other persons who may be interested in such payment by reason of an
unauthorized assignment by such Member or by reason of a Member's death or
dissolution.
9. Capital and Loans.
A. The Member has made an initial capital contribution to the Company in
the amount of $100.
B. The Member may make additional contributions or loans to the company
at such time or times, and upon such conditions, as the Member may
determine.
C. The provisions of this Section 9 are not intended to be for the
benefit of any creditor or person (other than a Member in such
Member's capacity as Member to whom any debts, liabilities or
obligations are owed by the Company or by its Member.
10. Capital Accounts. An individual capital account shall be maintained for
each Member. No Member shall be paid interest on any capital contribution.
The Members contemplate that at all times the Members' capital accounts
shall be in proportion to the embers' Interests.
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11. Profits, Losses and Distributions.
A. Each Member shall share all profits and losses, pro rata, in
proportion to the Member's Interest in the Company. A Member's
Interest shall be defined as a Member's pro rata share of ownership in
the Company.
B. Any distribution of cash or any other property of the company shall be
distributed in the following order:
(1) payment of taxes;
(2) payment of any indebtedness including debts owing to any Member
and any other expenses; and
(3) to the Members in accordance with each Member's Interest in the
Company.
12. Return of Capital Contributions. No member shall be entitled to demand the
return of such Member's capital account or capital contribution at any time
prior to a termination of the Company. In no event shall a Member be
entitled to demand or receive property other than cash. Unless otherwise
provided by law, no Member shall be personally liable for the return or
repayment of all or any part of any other Member's capital account or
capital contribution. Rather, any such return of capital pursuant to this
Agreement shall be made solely from the assets (which shall not include any
right of contribution from a Member) of the Company.
13. Management.
A. The Managers shall be solely and exclusively responsible for the
management and control of the Company and the conduct of the business
and affairs of the Company. The Company shall initially have two
managers. The initial Managers shall be Xxxxxx X. Alloy and Xxxxxx X.
Alloy, who shall hold office until their successors are elected and
qualified. The number of managers may be increased and vacancies
filled by a vote of a majority of the Members. A manager may be
removed by a vote of a majority of the Members.
The day-to-day operations of the Company shall be under the direction
of the President of the Company, the Chairman of the Company, the Vice
Presidents of the Company and such other officers of the Company as
may be established by the Managers of the Company. The President,
Chairman or any Vice President may execute leases, contracts, and
other documents on behalf of the Company. The President, Chairman and
Vice President and General Counsel shall have the sole authority to
sign deeds of conveyance. The President, Chairman, Vice President and
General Counsel, Vice President of Land Acquisition or Vice President
of Engineering and Land Development may execute deeds of dedication,
easements and associated documents to establish and record subdivision
lots and parcels on behalf of the Company. Any document executed on
behalf of the Company by the President, Chairman, any Vice President
or any other officer of the Company shall bind the Company vis-a-vis
third parties. The
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President, Chairman, any Vice President and any other officer may
delegate their authority to one or more persons from time to time as
they may deem appropriate. The President Chairman, any Vice President
and any other officer shall continue in office until he or she dies,
resigns, or is replaced by the Member(s).
Neither the President, Chairman, any Vice President nor any other
officer of the Company shall be liable for damages or otherwise for
any act performed by him or, her in good faith within the scope of
this Agreement.
B. Either the President, Chairman, or any Vice President may engage and
retain one or more persons to supervise office routines and
bookkeeping activities and to perform such other ministerial acts as
maybe required by the Company, and may compensate such person or
persons at a reasonable rate of pay. The person or persons so retained
may, but need not, be a Member or an employee of a Member. Any person,
whether a Member or otherwise, may be employed or engaged by the
Company to render special services, including, but not limited to,
building, constructing, marketing, selling, leasing and property
management services, accounting services and legal services. If such
person is a Member or an employee of a Member, he shall be entitled
to, and shall be paid, compensation for said services if the
President, Chairman or the Vice President agrees thereto prior to the
performance of such services, anything in this Agreement to the
contrary notwithstanding. The Member(s) may engage in and possess an
interest in other business ventures of any nature and description,
independently or with others, including, but of limited to, the
ownership, financing, leasing, selling, operating, management,
brokerage and development of homes and other income producing real
property. Neither the Company nor the Member(s) shall have any right
by virtue of this Agreement in and to said independent ventures, or to
the income or profits derived therefrom. The fact that the Member(s)
is employed by, or is directly or indirectly interested in or
connected with, any person, firm or corporation employed by the
Company to render or perform any service, or from whom or which the
Company may buy merchandise or other property, shall not prohibit the
President, Chairman or any Vice President from employing such person,
firm or corporation or from otherwise dealing with him.
14. Rights and Obligations of Members.
A. No Member shall be obligated to make capital contributions to the
Company except as provided in Section 9A.
B. No Member shall have any personal liability with respect to the
liabilities or obligations of the Company.
15. Assignability of Ownership Interests.
A. Restrictions on Transfers of Membership Interest. Except as otherwise
provided in this Agreement, a Member may not transfer, assign or
encumber all or any part of his Membership Interest in the Company
without first obtaining a unanimous
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written consent of all the Members. This section shall not prohibit
the collateral assignment as security of rights to the net profits by
any Member, but no such assignee shall have the right, by virtue of
such collateral assignment, to become a new member hereunder.
B. Assignment of a Member's Entire Interest. Upon the assignment of a
Member's entire Interest in the Company, a Member ceases to be a
Member. For purposes of this provision, assignment of a Member's
entire Interest shall mean the transfer voluntarily or by operation of
law, of greater than fifty percent (50%) of a Member's Interest.
C. Substitute Members. The assignee of a membership Interest shall have
the right to become a substituted member in the Company if (1) the
assignor so provides in the instrument of assignment, (2) the assignee
agrees in writing to be bound by the terms of this Agreement and the
Articles, as amended to the date hereof, (3) consent to such
assignment has been obtained from all of the other Members, (4) the
assignee pays the reasonable costs incurred by the company in
preparing and recording any necessary amendments to this Agreement and
the Articles, (5) the assignor and assignee otherwise agree to be
bound by the terms of Section 13.1-1040 of the Code of Virginia, and
(6) the Company obtains opinion of counsel for the Company that none
of the actions taken in connection with the assignment shall cause the
Company to be classified other than as a limited liability company for
federal income tax purposes, or to cause the termination or
dissolution of the Company, or to cause the breach of any agreement to
which the Company is a party.
D. Rights of an Assignee. If an assignee of a membership Interest is not
admitted as a substitute member because of the failure to satisfy the
requirements of 15C hereof, such assignee shall nevertheless be
entitled to receive such distributions from the Company as the
assigning Member would have been entitled to receive under the terms
of this Operating Agreement with respect to such membership Interest
had the assigning Member retained such membership Interest.
16. Legal Title to Company Property. Legal title to all property now owned or
in the future acquired by the Company shall be taken and held in the name
of the Company or in the names of trustees or nominees holding for the
benefit of the Company.
17. Dissolution. The Company shall be dissolved upon the happening of any of
the following events:
A. Upon the expiration of its term as set forth in Section 4;
B. Upon the unanimous written consent of all Members; and
C. The occurrence of any other event which causes dissolution under the
Code of Virginia.
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However, the Company shall not be so dissolved if all of the remaining
Members (including any substitute Members pursuant to section 15B), within
ninety (90) days after such dissolution event or occurrence, unanimously
elect in writing to continue the business of the Company.
18. Liquidation and Termination. Subject to any restrictions in agreements to
which the Company is a party, the Company shall be terminated after
dissolution if the remaining Members do not elect to continue the company
as provided in Section 17. In such event, the Members shall promptly
terminate the affairs of the company by discharging all debts and
liabilities of the Company and by distributing all assets in accordance
with Section 19.
19. Liquidation or Dissolution. In the event the Company is liquidated or
dissolved, the assets of the Company shall be distributed to the Members in
accordance with the provisions of Section 11.
20. Withdrawal of Member. A Member may withdraw by giving not less than ten
(10) days prior written notice to the other Members at their respective
addresses as shown on the books of the Company.
21. Books and Records. Accounting records of all Company business shall be kept
and shall be open to inspection by any of the Members at all reasonable
times. The Company shall maintain its accounting records and shall report
for income tax purposes on the cash or accrual method of accounting, as
determined by the Managers. Within ninety (90) days after the end of each
taxable year and at the expense of the Company, the Managers shall cause to
be prepared a complete accounting of the affairs of the Company, together
with whatever additional information is required by each Member for the
purpose of preparing such Member's income tax return for that year. This
accounting and information shall be furnished to each Member.
22. Bank Accounts. All funds of the Company shall be deposited in such the
checking or other bank accounts as the President, Chairman, any Vice
President, the Treasurer or the Controller may determine.
23. Miscellaneous.
A. Other Businesses of Members. The Members may engage or hold interests
in other business ventures of every kind and description for such
Member's own account, whether or not such business ventures are in
direct or indirect competition with the business of the Company and
whether or not the Company also has an interest therein. Neither the
Company nor any of the Members that have any rights, by virtue of this
Agreement, in such business ventures or to the income or profits
derived therefrom.
B. Notices. Any notices to Members shall be delivered personally by
private courier service or sent by certified or registered mail,
return receipt requested, first class postage prepaid, the Member at
such Member's address as last provided to the Company. Time periods
shall commence on the date of mailing of a notice sent
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by mail or on the date of receipt of a notice delivered by courier.
Any notice sent by mail which is required to be given within a stated
period of time shall be considered timely if postmarked before
midnight of the last day of such period.
C. Contracts with Affiliates. The Company may enter into a contract,
agreement, lease or other arrangement for the furnishing to or by the
Company of goods or services with any Member or with any party or
entity related to or affiliated with any Member.
D. Liability of the Members. No Member shall be liable, responsible or
accountable in damages or otherwise to any other Member or to the
Company for any act or omission performed or omitted by the Member
except for acts of gross negligence or intentional wrongdoing.
E. Indemnification. The Members shall be indemnified by the Company for
any act or omission performed or omitted by them for which they are
not liable pursuant to Section 23D.
F. Insurance. The Company shall endeavor to obtain liability or other
insurance, payable to the Company (or as otherwise agreed to by the
Members), in order to protect the Company and the Members from the
acts or omissions of each of the Members. Such insurance shall be an
expense of the Company.
G. Waiver of Partition. The Members hereby waive any right of partition
or any right to take any other action that otherwise might be
available to them for the purpose of severing their interest in the
assets held by the Company from the interest of the other Members.
H. Binding Provisions. The covenants and agreements contained in this
Agreement shall be binding upon the heirs, personal representatives,
successors and assigns of the respective parties to this Agreement.
I. Separability of Provisions. Each provision of this Agreement shall be
considered separable. If, for any reason, any provisions hereof are
determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those
portions of this Agreement that are valid.
J. Entire Agreement; Amendment. This Agreement constitutes the entire
understanding and agreement among the parties with respect to the
subject matter of this Agreement, and supersedes all prior and
contemporaneous agreements and understandings, inducements, or
conditions, express or implied, oral or written, except as contained
in this Agreement. This Agreement may not be amended or modified
except with the written consent of Members who collectively hold at
least a majority of interest in the Company.
K. Waiver of Valuation and Accounting. All Members, for themselves and
for their respective heirs, personal representatives, successors and
assigns hereby waive, release, discharge, and dispense with the right
to valuation and payment of the
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Interest of any Member and this right to an accounting of the Interest
of any Member.
L. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
M. Counterparts. This Agreement may be executed in counterparts each of
which shall be deemed an original and all of which when taken together
constitute one and the same instrument, binding on the Members. This
signature of any party to any counterpart shall be deemed a signature
to, and may be appended to, any other counterpart.
IN WITNESS WHEREOF, the sole Member acknowledges that this Agreement is its act,
and further acknowledges under penalty of perjury, to the best of its knowledge,
information and belief, that the matters and facts set forth herein are true in
all material respects, and that it has executed this Agreement the day and year
first above written.
NEIGHBORHOOD HOLDINGS, LLC
By: /s/ Xxxxxx X. Alloy
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Xxxxxx X. Alloy, Chairman
By: /s/ Xxxxxx X. Alloy
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Xxxxxx X. Alloy, President
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