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(majority percentage member of MFV). Moreover, any authority
that section 4.5.1 of MFV’s operating agreement gave Ms. Mirowski
as the majority percentage member of MFV did not include the
authority to determine the timing and the amount of distributions
from MFV where that agreement “otherwise provided”. That agree-
ment otherwise provided in, inter alia, section 4.1 and 4.2.
Pursuant to section 4.1 of MFV’s operating agreement, Ms.
Mirowski had no authority as the majority percentage member of
MFV (or as MFV’s general manager) to determine for each taxable
year the distribution of MFV’s cash flow (i.e., cash funds
derived in the ordinary course of MFV’s operations) or the
allocation of MFV’s profit or loss from the ordinary course of
MFV’s operations. With respect to the distribution of MFV’s cash
flow, section 4.1.2 of MFV’s operating agreement provided that
“Cash Flow for each taxable year * * * shall be distributed to
the Interest Holders * * * no later than seventy-five (75) days
after the end of the taxable year.”59 Section 4.1.2 of MFV’s
operating agreement is unequivocal in mandating the distribution
of MFV’s cash flow no later than 75 days after the end of a
taxable year.
59Section 4.1 of MFV’s operating agreement required for each
taxable year the allocation of profit or loss from the ordinary
course of MFV’s operations and the distribution of MFV’s cash
flow to MFV’s interest holders in proportion to their respective
percentage interests in MFV.
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Last modified: March 27, 2008