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(1) a provision to that effect is contained in the
articles of organization; and
(2) a member so liable has consented in writing to the
adoption of the provision or to be bound by the
provision.
805 Ill. Comp. Stat. Ann. 180/10-10 (West Supp. 2003). Section
2.4 of the operating agreement, quoted previously, provides that
no member or manager of IPO II is obligated for any debts,
obligations, or liabilities of IPO II. Moreover, the LLC Act
does not establish a statutory obligation on the part of Indeck
Overseas to contribute to IPO II to meet IPO II’s obligations,
either during its operation or upon its liquidation and
dissolution, unless a promise is otherwise made by Indeck
Overseas to contribute. See 805 Ill. Comp. Stat. Ann. 180/20-5,
180/25-45 (West Supp. 2003). The record is devoid of any
evidence of a promise by Indeck Overseas to contribute to IPO II
or to otherwise directly become responsible for IPO II’s debts,
obligations, or liabilities including the Nationsbanc loan.
Indeck Overseas did not guarantee the Nationsbanc loan.
Consequently, there is no evidence that in a constructive
liquidation Indeck Overseas would directly bear the economic risk
of loss for the Nationsbanc loan.
A finding that Indeck Overseas did not directly bear
economic risk of loss does not end the inquiry. Economic risk of
loss borne by a “related person” can also establish a recourse
liability for Indeck Overseas. See sec. 1.752-2(a), Income Tax
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Last modified: May 25, 2011