EXHIBIT 10.53
LIMITED LIABILITY COMPANY AGREEMENT
OF
RAMCO/WEST ACRES LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered into as of
the ____ day of September, 2001, by and between (i) Ramco-▇▇▇▇▇▇▇▇▇▇ Properties,
L.P., a Delaware limited partnership, with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Ramco") and (ii) West Acres
Realty LLC, a New York limited liability company, with offices located at ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Investor"). All
capitalized terms used in this Agreement are defined in Article X of this
Agreement.
R E C I T A L S:
A. On September ____, 2001 (the "Acquisition Date"), Ramco acquired the
sole membership interest in West Acres Commons, LLC, a Delaware limited
liability company (the "Company") under the Delaware Limited Liability Company
Act, Delaware Code Annotated, Title 18, ss.ss.101 to 1107 (the "Act") from Flint
Retail, LLC.
B. Concurrently with the acquisition of such membership interest, in
the Company, Ramco has assigned to Investor sixty percent (60%) of such interest
and retained forty percent (40%) of such interest.
C. Ramco and Investor desire to evidence their agreements with respect
to the Company by entering into this Agreement, which shall amend and restate in
its entirety the existing operating agreement of the Company.
Accordingly, the parties agree as follows:
ARTICLE I
FORMATION, NAME, PURPOSES,
PRINCIPAL OFFICE, TERM OF THE COMPANY
AND RELATED MATTERS
1.01 FORMATION AND CONTINUATION
The Company was formed by the filing of a Certificate of Formation with
the Office of the Secretary of State for the State of Delaware (the "Secretary")
on August 16, 2001 (the "Formation Date"). The Company shall be continued. The
relationship of the Members, with respect to the Company, shall be governed by
this Agreement.
1.02 NAME
The name of the Company shall be Ramco/West Acres LLC. The Company may
also conduct its business under such assumed name or names as shall be selected
by both Ramco and Investor at any time and from time to time.
1.03 PURPOSES
a. The Company has been formed, and the purposes of the Company are, to
(i) own certain property in the City of Flint, Genesee County, Michigan,
described on Schedule 1 attached hereto and made a part hereof, upon which
property is located a certain shopping center commonly known as "West Acres
Commons" (the "Project"); to acquire certain property adjacent to the Project to
be identified at later date if deemed appropriate by Manager, and manage,
operate, lease, sell, finance, refinance, develop, redevelop and dispose of the
Project and such additional property, if any, including leasing and selling all
or portions of the Project and such additional property (hereinafter the term
"Project" shall include such additional property, if and when acquired); and
(iii) engage in any and all activities related or incidental to the foregoing.
b. The Company shall have all the powers necessary or appropriate for
the accomplishment of the Company's purposes.
1.04 PRINCIPAL OFFICE, REGISTERED OFFICES AND RESIDENT AGENT
a. The principal office of the Company shall be located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company shall
have an office at such other address(es) as may be designated from time to time
by Ramco, including such offices as may be required by each jurisdiction in
which the Company transacts business, or expects to transact business. The
address of the office of the Company in the State of Delaware required to be
maintained pursuant to the Act is c/o The Corporation Trust Company, Corporation
Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
address as may be designated from time to time by Ramco.
b. The name and address of the registered agent for service of process
on the Company in the State of Delaware is The Corporation Trust, whose address
is Corporation Trust Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
such other agent and address as may be designated from time to time by Ramco. In
addition, Ramco shall appoint such other registered agents for service of
process on the Company, as may be required by those jurisdictions in which the
Company transacts business, or expects to transact business.
1.05 TERM
a. The term of the Company commenced on the Formation Date.
b. The term of the Company shall end and the Company shall dissolve on
December 31, 2051 (the "Termination Date"); however, if any of the following
events shall occur prior to the Termination Date, the Company shall dissolve on
the first to occur of such events:
(1) The sale or other disposition of all or substantially all
the assets of the Company and the retirement of all debt, if any,
retained by the Company in connection with such sale or other
disposition;
(2) The decision of Ramco and Investor to terminate the
Company; or
(3) Any other event which, under this Agreement or the Act,
results in the dissolution of the Company.
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1.06 TREATMENT OF THE COMPANY
The Members agree to continue the Company as a limited liability
company under and pursuant to the Act. The Members specifically intend and agree
that the Company not be a partnership (including, a limited partnership) or any
other venture, but a limited liability company under and pursuant to the Act. No
Member shall be construed to be a partner in the Company or a partner of any
entity or Member. The Certificate and this Agreement and the relationships
created thereby and arising therefrom shall not be construed to suggest
otherwise. Notwithstanding the foregoing, the Members intend that the Company be
treated as a partnership for federal income tax purposes.
ARTICLE II
CAPITAL AND RELATED MATTERS
2.01 INITIAL CAPITAL CONTRIBUTIONS
Contemporaneously with the execution of this Agreement, each Member
shall initially contribute to the capital of the Company cash in an amount equal
to the Applicable Percentage set forth opposite its respective name in column
(3) on Exhibit A attached hereto multiplied by the total cash purchase price
paid by Ramco to acquire the entire membership interest in the Company from
Flint Retail, LLC, plus all applicable fees and costs incurred by Ramco in
connection with such transaction, as well as the acquisition fee described in
Section 4.16 below and any other costs or fees provided in this Agreement. When
such amounts are known, they shall be entered in column (2) on Exhibit A
attached hereto next to the respective Member's names.
2.02 ADDITIONAL CAPITAL CONTRIBUTIONS
a. If, at any time and from time to time, during the term of the
Company, the Manager determines that the Company needs additional funds to
accomplish any of the purposes of the Company, including, but not limited to,
capital improvements, tenant improvements, operating deficits, brokerage
commissions to be paid and debt service obligations to be met, or acquisition of
any additional property as provided in Section 1.03 a. hereof, the Manager shall
so inform the Investment Committee, whereupon the Investment Committee may
decide to send a Capital Call Notice (as hereinafter defined) to the Members
pursuant to the provisions of Section 2.02 b. hereof. If the Investment
Committee sends such Capital Call Notice, the Members shall be required to make
such additional capital contributions hereunder pursuant to the provisions of
such Capital Call Notice. Nothing in this Section 2.02 a. shall be construed as
prohibiting the Investment Committee from deciding to borrow the required
additional capital needed hereunder instead of requiring additional capital
contributions from the Members.
b. The Investment Committee, once it has unanimously decided to require
additional capital contributions from the Members pursuant to Section 2.02 a.
hereof, shall cause the Manager to send a written notice to each of the Members
(the "Capital Call Notice"). The Capital Call Notice shall state (i) the total
amount of cash required, (ii) each Member's share of such required cash (which
shall be based on each Member's respective Applicable
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Percentage), and (iii) the date by which each Member is obligated to contribute
its share of such required cash (which shall not be earlier than ten (10) days
from the date the Capital Call Notice was sent).
c. The obligations of the Members to make additional capital
contributions under this Agreement shall only be enforceable by the Members and
not by creditors of any Member or by any third party. In the event any creditor
of a Member or of the Company succeeds to all or a portion of the Membership
Interest of a Member, the other Member shall thereupon be released from all
further obligations under this Section 2.02.
2.03 FAILURE TO CONTRIBUTE ADDITIONAL CAPITAL
If either Ramco or Investor does not pay the Company, when due, any
amount that each such Member is obligated to contribute to the Company under the
provisions of Sections 2.01 or 2.02 a. hereof (such Member being hereinafter
referred to as the "Defaulting Member" and such amount being hereinafter
referred to as the "Omitted Contribution"), and the other Member has paid to the
Company, when due, all amounts that it is then, and was prior thereto, obligated
to contribute to the Company under such Section (a "Nondefaulting Member"), the
Investment Committee may, if it so elects, give notice of such nonpayment to the
Defaulting Member. For purposes of this Section 2.03, the member of the
Investment Committee who has been appointed by the Defaulting Member shall not
participate in any decisions made by the Investment Committee in connection with
the matters set forth in this Section 2.03. Therefore, any references in this
Section 2.03 to decisions made by the Investment Committee means decisions made
by the member of the Investment Committee who is appointed by the Nondefaulting
Member. If the Defaulting Member does not make such payment within twenty (20)
days after the giving of such notice (plus such additional period of time, if
any, as the Investment Committee, in its sole and absolute discretion, grants
the Defaulting Member in such notice), the failure to make such payment during
such period shall constitute an Event of Default, whereupon (i) the Defaulting
Member shall cease to have the right to cure its default, except as otherwise
provided below in this Section 2.03, (ii) except as otherwise provided below in
this Section 2.03, the Defaulting Member shall cease to have the right to
receive any distributions from the Company, (iii) at the election of the
Investment Committee, the Defaulting Member shall have no right to participate
in the management of the business of the Company, and any Affiliate of the
Defaulting Member who is a member of the Investment Committee shall become an
inactive member of the Investment Committee, and (iv), the Investment Committee
and the Nondefaulting Member, for and on behalf of themselves and the Company,
on its behalf, shall have as their sole remedy, the following:
The Nondefaulting Member shall have the right to advance an amount
equal to the Omitted Contribution. The amount so advanced shall constitute (i) a
loan from the Nondefaulting Member to the Defaulting Member, and (ii) a capital
contribution by the Defaulting Member to the Company. Such a loan shall (i) bear
interest at the LIBOR Reference Rate, (ii) be payable on demand, (iii) be
secured by the Defaulting Member's Membership Interest, and (iv) at the election
of the Nondefaulting Member, be evidenced by a promissory note, containing such
terms and provisions, not inconsistent with the provisions of this Section
2.03a.(2), as shall be specified by the Nondefaulting Member. Upon not less than
five (5) days prior request, the Defaulting Member shall execute and deliver to
the Nondefaulting Member such promissory note, and all related documents
(including, but not limited to, a Uniform Commercial Code Financing Statement to
perfect the aforementioned security interest) specified by the Nondefaulting
Member, and if the Defaulting Member shall fail or refuse to execute any of such
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documents, the Nondefaulting Member shall be the Defaulting Member's true and
lawful attorney-in-fact, with full power of substitution, in its name and on its
behalf, to execute and deliver such promissory note and related documents. If
the Nondefaulting Member shall make such an advance, (-1-) the portion of all
Company distributions otherwise payable to the Defaulting Member shall, instead
of being paid to the Defaulting Member, be paid to the Nondefaulting Member and
applied against the loan resulting from such an advance, and (-2-) the
Defaulting Member shall not, as a result of the making of any such advance, be
treated as having cured its default and it shall continue to be a Defaulting
Member until the principal of, and all accrued interest on, the loan resulting
from such an advance has been paid in full, whereupon the Defaulting Member
shall resume the right to receive any distributions from the Company.
2.04 LOANS BY A MEMBER IN LIEU OF CAPITAL CALL
In the event that the Manager determines that additional funds are
needed for any purpose of the Company, but the Investment Committee does not
unanimously consent to a Capital Call with respect thereto, then the Manager (or
its Affiliate) shall have the right to lend to the Company the amount so
required, which loan shall bear interest at the LIBOR Reference Rate and shall
be repaid in the manner set forth in Sections 3.02 a. and 3.03 a. hereof.
2.05 RETURN OF CAPITAL CONTRIBUTIONS
Except as otherwise provided in this Agreement, no Member shall have
the right to withdraw its capital contributions or to demand or receive the
return of its capital contributions or any part thereof.
2.06 LIMITED LIABILITY OF MEMBERS
Unless otherwise provided by law, the Members shall not be liable for
the acts, debts or obligations of the Company.
ARTICLE III
ALLOCATIONS AND DISTRIBUTIONS
3.01 ALLOCATIONS OF PROFIT AND LOSS
a. After giving effect to the special allocations set forth in Section
3.01 b. hereof and the curative allocations set forth in Section 3.01 c. hereof,
Profit and Loss for any fiscal year shall be allocated between the Members in
accordance with their Applicable Percentages; provided, however, that no Loss or
item of expense or loss shall be allocated to any Member for any fiscal year to
the extent that such Loss or item of expense or loss would create or increase a
deficit in such Member's Adjusted Capital Account.
b. The following special allocations shall be made in the following
order:
(1) Except as otherwise provided in Section 1.704-2(f) of the
Regulations, if there is a net decrease in "partnership minimum gain"
during any fiscal year, each Member shall be specially allocated items
of income and gain
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for such fiscal year (and, if necessary, subsequent fiscal years) in an
amount equal to such Member's share of the net decrease in "partnership
minimum gain," determined in accordance with Section 1.704-2(g) of the
Regulations. Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated
to each Member pursuant thereto. This Section 3.01 b. (1) is intended
to comply with the minimum gain chargeback requirement in Section
1.704-2(f) of the Regulations and shall be interpreted consistently
therewith.
(2) Except as otherwise provided in Section 1.704-2(i)(4) of
the Regulations, if there is a net decrease in "partner nonrecourse
debt minimum gain" attributable to a "partner nonrecourse debt" during
any fiscal year, each Member who has a "share of partner nonrecourse
debt minimum gain" attributable to such "partner nonrecourse debt,"
determined in accordance with Section 1.704-2(i)(5) of the Regulations,
shall be specially allocated items of income and gain for such fiscal
year (and, if necessary, for subsequent fiscal years) in an amount
equal to such Member's share of the net decrease in "partner
nonrecourse debt minimum gain" attributable to such "partner
nonrecourse debt," determined in accordance with Section 1.704-2(i)(4)
of the Regulations. Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. This Section 3.01b.(2) is
intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(i)(4) of the Regulations and shall be interpreted
consistently therewith.
(3) In the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5) or Section
1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of income and gain
shall be specially allocated to such Member in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, any
deficit in the Adjusted Capital Account of such Member as quickly as
possible, provided that an allocation pursuant to this Section 3.01
b.(3) shall be made only if and to the extent that such Member would
have such a deficit after all other allocations provided for in this
Section 3.01 have been tentatively determined as if this Section
3.01b.(3) were not in the Agreement.
(4) Any "nonrecourse deductions" for any fiscal year shall be
specially allocated between the Members pro rata, in accordance with
their Applicable Percentages.
(5) Any "partner nonrecourse deductions" for any fiscal year
shall be specially allocated to the Member who bears the economic risk
of loss with respect to the "partner nonrecourse debt" to which such
"partner nonrecourse deductions" are attributable in accordance with
Section 1.704-2(i)(1) of the Regulations.
c. The provisions of Section 3.01a. hereof and the provisions of
Section 3.01b. hereof (collectively, the "Regulatory Provisions") are intended
to comply with certain requirements of the Regulations. It is the intent of the
Members that, subject to the Regulatory Provisions, all allocations pursuant to
the Regulatory Provisions shall be offset either with other
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allocations pursuant to the Regulatory Provisions or, if necessary, with
curative allocations of other items of income, gain, loss or deduction pursuant
to this Section 3.01 c. Therefore, notwithstanding any provision of this
Agreement other than the Regulatory Provisions, allocations pursuant to the
Regulatory Provisions shall be taken into account in allocating other items of
income, gain, expense or loss between the Members so that, to the extent
possible, the net amount of such allocations of other items and the allocations
pursuant to the Regulatory Provisions to each Member are equal to the net amount
that would have been allocated to such Member if the Regulatory Provisions were
not part of this Agreement. In applying this Section 3.01 c., there shall be
taken into account future allocations under Sections 3.01 b.(1) and 3.01 b.(2)
hereof that, although not yet made, are likely to offset other allocations
previously made under Sections 3.01 b.(4) and 3.01 b.(5) hereof.
d. For purposes of this Agreement:
(1) "Adjusted Capital Account" means, with respect to any
Member, such Member's Capital Account (i) reduced by those anticipated
allocations, adjustments and distributions described in Section
1.704-l(b)(2)(ii)(d)(4)-(6) of the Regulations, and (ii) increased by
such Member's "share of partnership minimum gain," such Member's "share
of partner nonrecourse debt minimum gain" and the amount of any deficit
in such Member's Capital Account that such Member is deemed obligated
to restore under Section 1.704-1(b)(2)(ii)(c) of the Regulations.
(2) "Profit" and "Loss" each means, for each fiscal year of
the Company or other period, the Company's profit or loss, computed
without taking into account any items of income, gain, expense or loss
allocated pursuant to Sections 3.01 b. or 3.01 c. hereof.
(3) "Regulations" means the regulations promulgated by the
U.S. Department of Treasury under the Code.
(4) All items set off in quotation marks and not otherwise
defined shall have the meanings ascribed to them in the Regulations.
3.02 DISTRIBUTION OF CASH FLOW
a. The Distributable Cash Flow (as defined in Section 3.02 b. below) of
the Company, with respect to each fiscal year of the Company shall be
distributed monthly to, and allocated between, the Members in the following
order of priority:
(1) First, to repay any loans due and owing any Member or any
Affiliate of any Member;
(2) Next, to the Members pro rata, based on their respective
Applicable Percentages, to the extent of their Preferred Return;
(3) The balance, if any, 50% to Ramco and 50% to Investor.
The Members hereby acknowledge that it is their intention to distribute
the maximum Distributable Cash Flow annually.
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b. As used in this Agreement, "Distributable Cash Flow" means, with
respect to each fiscal year of the Company, the excess of Cash Receipts with
respect to each such fiscal year over Cash Disbursements for such fiscal year.
For this purpose:
(1) "Cash Receipts" means the sum of:
(a) The revenues of the Project generated by its
operations received in cash during such fiscal year (not
including Net Sale or Refinancing Proceeds [defined below]);
(b) Any amounts previously set aside as reserves by
the Company in a prior fiscal year (including any interest
earned on such reserves), to the extent that the Investment
Committee determines that they are no longer necessary to be
held as reserves;
(c) All cash contributed to the capital of the
Company during such fiscal year;
(d) All proceeds received by the Company during such
fiscal year from any and all loans, including, but not limited
to, any loans made to the Company by any Member or Affiliate
of any Member; provided, however, Net Sale or Refinancing
Proceeds shall not be included in this definition; and
(e) All cash received by the Company during such
fiscal year from any other source, except Net Sale or
Refinancing Proceeds.
(2) "Cash Disbursements" means the sum of:
(a) The operating expenses of the Project paid in
cash during fiscal year (except to the extent any such
expenses are paid out of amounts set aside as reserves in a
prior fiscal year);
(b) Interest on any and all Company indebtedness and
obligations paid in cash during such fiscal year;
(c) The aggregate of all payments made during such
fiscal year with respect to the discharge of any Company
indebtedness and obligations (including those obligations of
the Company due and owing any Member or any Affiliate of any
Member other than repayment of loans made to the Company by
such Members or their Affiliates) except if any such payments
are made out of Net Sale or Refinancing Proceeds;
(d) The aggregate of all payments made during such
fiscal year with respect to capital improvements, repairs,
equipment purchases and any other item relating to the
business of the Company that is not properly characterized as
a current operating expense under Section 3.02b.(2)(a) hereof;
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(e) The aggregate of all amounts that the Investment
Committee elects to deduct from Cash Receipts with respect to
such fiscal year and to set aside, use and/or pay (i) for
working capital, (ii) as reserves (-1-) for contingencies,
(-2-) for the replacement or preservation, during the current
or any future fiscal year, of the Project property or assets,
(-3-) to provide for accrued liabilities, (-4-) for the
payment or satisfaction of current or future Project debts or
obligations, and/or (-5-) for any other Project purposes;
(iii) as escrow(s) to provide for the payment or satisfaction
of current or future Project debts or obligations (for
example, real estate tax or insurance escrow payments), or
(iv) as collateral (or to acquire collateral) for any present
or future Project debt or obligation; and
(f) All disbursements made by the Company during such
fiscal year for any other purpose except for (a) disbursements
made out of the proceeds of any Net Sale or Refinancing
Proceeds (b) repayment of loans due and owing any Member or
any Affiliate of any Member, and (c) distributions made by the
Company to the Members.
3.03 DISTRIBUTION OF NET SALE OR REFINANCING PROCEEDS:
a. Net Sale or Refinancing Proceeds received by the Company, to the
extent, and only to the extent, that the Investment Committee determines, in its
discretion, that such Net Sale or Refinancing Proceeds of the Company are not
otherwise required for Company purposes, shall be distributed to, and allocated
between, the Members as follows:
(1) First, to repay any loans due and owing any Member or any
Affiliate of any Member;
(2) Next, to the Members pro rata, based on their respective
Applicable Percentages, to the extent of their Preferred Return;
(3) Next, to the Members until all capital contributions to
the Company by the Members have been returned; and
(4) The balance, if any, 50% to Ramco and 50% to Investor.
b. As used in this Agreement, "Net Sale or Refinancing Proceeds" means
the proceeds of:
(1) the sale or other disposition of all or a portion of the
property or assets of the Company, less the expenses of such sale or
disposition and less the portion of such proceeds utilized to discharge
any indebtedness secured by such property or assets;
(2) the refinancing of any mortgage loan secured by any
property or asset of the Company, or the refinancing of any other
indebtedness of the Company, less the expenses of such refinancing and
less the portion of such proceeds utilized to discharge any
indebtedness of the Company; and
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(3) any policy or policies of fire and extended coverage
insurance covering the Project or any other property or asset of the
Company, less the portion of such proceeds utilized to discharge any
indebtedness secured by the Project or such property or assets and less
the portion of such proceeds utilized for the repair, replacement or
reconstruction of the Project or such property or asset or related
improvements.
(4) any condemnation proceeding not used to restore the
Project.
provided, however, "Net Sale or Refinancing Proceeds" shall not include any such
proceeds which, because of the relatively minor amount involved (an amount not
in excess of $100,000), or for other reasons the Investment Committee determines
are more properly treated as "Cash Receipts" (as defined above) than "Net Sale
or Refinancing Proceeds".
c. The Members hereby acknowledge that it is their intention upon
receipt of Net Sale or Refinancing Proceeds to distribute the maximum amount of
such Net Sale or Refinancing Proceeds.
d. The provisions of this Section 3.03 are subject in all respects to
the provisions of Article VIII hereof. To the extent that any of the provisions
of this Section 3.03 are inconsistent with any of the provisions of Article VIII
hereof, the provisions of Article VIII hereof shall apply and govern and
control.
ARTICLE IV
MEETINGS OF MEMBERS AND RELATED MATTERS
4.01 ANNUAL MEETINGS
An annual meeting of the Members for the election of members to the
Investment Committee and for the transaction of such other business as may
properly come before such meeting shall be held at such place, either within or
without the State of Michigan, and at such time and date as the Members, by
resolution, shall determine. If such a time and date is not so determined, the
annual meeting of the Members shall be held at the Company's principal office in
the State of Michigan, on the second Tuesday in November of each year, if not a
legal holiday, and if a legal holiday, then on the next business day following.
Any person designated by Members shall state the time, place and purposes of
such meeting as provided in Section 4.04 hereof, unless such notice is waived.
If such annual meeting is not held as herein provided for, it may be held as
soon hereafter as may be convenient. Such subsequent meeting shall be called in
the same manner as hereinafter provided for special meetings of Members.
4.02 SPECIAL MEETINGS
A special meeting of the Members may be called at any time by any
Member. The time of such special meeting shall be fixed by such Member in such
request, and shall be stated in the notice of the special meeting, provided that
the time so fixed shall permit the giving of notice as provided in Section 4.04
hereof, unless such notice is waived. Such request shall state the purposes of
the proposed meeting.
4.03 PLACE OF MEETINGS
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Meetings of the Members shall be held at such place as may be fixed
from time to time by the Members, or as shall be specified in the notice or
waiver of notice of any such meeting.
4.04 NOTICE OF MEETINGS
Written notice of the time, place and purposes of each meeting of the
Members shall be given by a person designated by the Members and shall be served
personally or by first class mail on each Member not less than ten (10) nor more
than sixty (60) days before the meeting. If mailed, such notice shall be
directed to each such Member at the address as it appears in this Agreement
unless such Member shall have filed with the Manager a written request that such
notices be mailed to some other address, in which case it shall be mailed to the
address designated in such request. Business transacted at any special meeting
of Members shall be limited to the purpose or purposes stated in the notice
unless all of the Members consent thereto.
4.05 VOTING
Unless otherwise provided in this Agreement, any action to be taken,
decision to be made, consent to be given or matter to be resolved by the Members
pursuant to this Agreement shall be taken, made, given or resolved by and in
accordance with the affirmative vote of both Investor and Ramco.
4.06 QUORUM
At all meetings of the Members, the presence, in person or by proxy, of
the holders of record of each of the Membership Interests, and entitled to vote
thereof, shall be necessary and sufficient to constitute a quorum for the
transaction of business. In the absence of a quorum, an officer entitled to
preside at, or act as secretary of, such meeting, without notice other than by
announcement at the meeting, may adjourn from time to time, but not for a period
of more than thirty (30) days at any one time, until a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present in person or by
proxy, any business may be transacted that might have been transacted at the
meeting as originally called.
4.07 PARTICIPATION IN A MEETING BY CONFERENCE TELEPHONE
Any Member may participate in a meeting of the Members by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other.
4.08 MINUTES
Such person as is designated by the Members shall prepare written
minutes of proceedings of all meetings of the Members, including all actions
taken, and promptly mail such minutes of proceedings to the Members.
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4.09 WRITTEN CONSENT IN LIEU OF MEETING
Any action which may be taken at any annual or special meeting of
Members may be taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, shall be signed by
both of the Members.
4.10 EXECUTION OF DOCUMENTS ON BEHALF OF THE COMPANY
All instruments, agreements and/or documents to be executed on behalf
of the Company shall be deemed to be duly executed and binding upon the Company
upon execution and delivery by any person designated by Manager or any other
person designated by the Investment Committee.
4.11 DESIGNATED REPRESENTATIVES
a. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall be the designated representative of
Investor. Such designated representative shall have the right, power and
authority to act for and on behalf of, and to bind, Investor with respect to all
matters relating to the Company and the business thereof. If Investor elects to
change its designated representative, such change shall not be binding upon
Ramco until Investor has notified Ramco of such change.
b. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall be the designated representative of Ramco.
Such designated representative shall have the right, power and authority to act
for and on behalf of, and to bind, Ramco with respect to all matters relating to
the Company and the business thereof. If Ramco elects to change its designated
representative, such change shall not be binding upon Investor until Ramco has
notified Investor of such change.
c. The Members and their respective designated representatives agree to
and accept the appointment of such designated representatives. They also agree
that no further or subsequent authorization, consent or ratification shall be
required with respect to the exercise of any of the rights, powers or authority,
or the doing of any act by such designated representatives, and that such
designated representatives have the right, power or authority to act as set
forth under the provisions of Sections 4.11a. and 4.11b. hereof. Each Member
hereby acknowledges and agrees that it shall be bound by any action taken on its
behalf by its designated representative.
d. In each case under this Article IV where the "presence" or
"participation" of a Member is referred to, the "presence" or "participation" of
a Member shall also refer to the presence or participation of such Member's
designated representative under this Section 4.11 hereof.
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4.12 REIMBURSEMENT FOR COSTS AND EXPENSES
The Members hereby agree that each Member and Affiliate of each Member
shall be reimbursed by the Company for all reasonable costs and expenses
incurred by them for or on behalf of the Company.
4.13 NON EXCLUSIVITY
Each Member shall devote such time and attention to the business of the
Company as each shall determine, in the exercise of its reasonable judgement, to
be necessary for the effective operation and conduct of the Company business.
The Members acknowledge that each of them have and will have interests in other
present or future ventures, including ventures that are or may be competitive
with the Project, and that notwithstanding its status as a Member of the
Company, a Member and its Affiliates shall be entitled to obtain and/or continue
their respective individual participation in all such ventures without (i)
accounting to the Company or the other Members for any profits or other economic
gain with respect thereto, (ii) any obligation to advise the other Member of
business opportunities for the Company which may come to its or its Affiliate's
attention as a result of its or its Affiliate's participation in such other
ventures or in the Company, and (iii) being subject to any claims of any nature
whatsoever on account of such participation.
4.14 MANAGEMENT OF THE PROJECT
The Investment Committee, on behalf of and at the expense of the
Company, shall retain Ramco-▇▇▇▇▇▇▇▇▇▇, Inc., an Affiliate of Ramco ("RGI"), as
the exclusive management and administrative agent of the Project. In furtherance
thereof, the Company shall enter into a management and leasing agreement in the
form attached hereto as Exhibit B covering RGI's activities under this Section
4.14 and Section 4.15 below, which agreement shall have a term of ten (10)
years. For services rendered in connection with the management of the Project,
RGI shall receive a management fee equal to four (4%) percent of the gross
receipts of the Project, as more particularly set forth in such agreement. In
addition, (i) any and all reasonable, reasonably documented costs and expenses
and all fees earned by RGI in its management of the Project (except for salaries
and benefits of employees of RGI and RGI general office/administrative overhead,
but excluding from such exception the salaries and benefits of employees of RGI
located at the Project and in the home office to the extent of their time
allocated to participating in management activities in connection with the
Project provided that such salaries and benefits are included in the approved
operating budget of the Company), including, without limitation, reasonable,
reasonably documented travel, business expenses, the amount of any commissions
required to be paid to outside brokers, legal fees and all fees for consultants
who perform any services in connection with the management of the Project, shall
be direct obligations of the Company. The management fee and reimbursements
shall be paid monthly.
4.15 LEASING AND TENANT CONSTRUCTION ACTIVITIES
a. The Investment Committee, on behalf of and at the expense of the
Company, shall retain RGI as the exclusive leasing agent for the Project and in
connection therewith, shall cause the Company to enter into a leasing agreement
with RGI, as included in the management and leasing agreement in the form
attached hereto as Exhibit B. RGI shall receive leasing commissions for services
rendered with respect to the leasing of space in the Project. With
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respect to (i) new leases (i.e., leases to any tenant other than the then
occupant of the space, except that the case of an occupant previously operating
under a license or month-to-month tenancy which converts to a lease for a term
of years shall also be treated as a new lease), or the expansion of space by the
then tenant or relation of such tenant, such leasing commission shall be in an
amount equal to five percent (5%) of the aggregate minimum rent over the term of
the lease; provided, however, such leasing commissions shall be reduced to the
extent that the Company pays or incurs leasing commissions with respect to any
new lease (as defined above) to any third party, but in no event shall the
leasing commission to be paid to RGI with respect to any new lease be reduced to
an amount less than two percent (2%) of the aggregate minimum rent over the term
of the lease; and (ii) renewals of then existing leases in the same tenant
space, such leasing commission shall be in an amount equal to two percent (2%)
of the aggregate minimum rent over the term of the lease renewed; (provided,
however, no leasing commission shall be paid in respect of leases renewed
pursuant to the exercise of an option to renew such lease contained in the then
existing leases). In addition, all expenses incurred by RGI in connection with
such leasing activities (except for salaries and benefits of employees of RGI
and general office/administrative overhead), including, without limitation,
reasonable, reasonably documented travel, business expenses, the amount of any
commissions required to be paid to outside brokers (provided that the leasing
commission payable to RGI shall be reduced by such amount, subject to RGI's
minimum assured commission as provided in the managing and leasing agreement),
legal fees, and all other fees for consultants who perform any services in
connection with such leasing activities at the Project shall be a direct
obligation of the Company. All fees shall be paid at such times as are set forth
in the managing and leasing agreement.
b. The Investment Committee, on behalf of and at the expense of the
Company, shall retain RGI to act as the exclusive construction coordinator with
respect to construction activities engaged in or carried out by the Company on
behalf of a tenant by tenants of the Project and for other capital construction
activities by RGI. In connection therewith, RGI shall enter into a construction
management contract with RGI as part of the management and leasing agreement in
the form attached hereto as Exhibit B. Such agreement shall have a term of ten
(10) years. For services rendered in this regard, RGI shall receive a fee equal
to three (3) times the compensation (current and deferred), and excluding only
contributions to currently funded pension plans under Section 401(a) of the
Code, vacations, insurance and other fringe benefits, of all personnel employed
by RGI in performing such services for the Company, which shall be calculated on
a pro rata basis in proportion to the actual time expended by such personnel on
such services to the Project. In addition, all expenses incurred by RGI in
connection with such work (except for salaries and benefits of employees of RGI
and RGI general office/administrative overhead), including, without limitation,
reasonable, reasonably documented travel, business expenses, legal fees and all
fees for consultants who perform any services in connection with construction
activities of tenants of the Project shall be a direct obligation of the
Company.
4.16 ACQUISITION FEE
The Company shall pay to Ramco or an Affiliate designated by Ramco an
acquisition fee for services rendered in connection with the Company's
acquisition of the Project. Such fee shall be in an amount equal to one and one
half percent (1 1/2%) of the aggregate costs incurred by the Company (including,
but not limited to, the gross purchase price paid by the Company) in connection
with the acquisition of the Project. In addition, all expenses incurred by Ramco
(or its Affiliate) in connection with such acquisition activities, including,
without limitation, travel
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business expenses, the amount of any fees paid to outside brokers, legal fees
and all other consultants who perform or consult with respect to such
acquisition activity shall be a direct obligation of the Company. Such fees
shall be paid at the time of the closing of the acquisition of the Project. For
the purposes hereof, the gross purchase price paid by the Company in connection
with the acquisition of the Project shall be deemed to refer to the gross
purchase price paid by Ramco for the sole membership interest of Flint Retail,
LLC in the Company pursuant to that Membership Interest Purchase Agreement dated
July 20, 2001 between Ramco and Flint Retail, LLC, as at any time amended. The
foregoing fee payable by the Company is in addition to any brokerage fee which
Ramco may otherwise receive on account of such acquisition.
4.17 DISPOSITION FEE
The Company shall pay Ramco or any Affiliate of Ramco a disposition fee
in the amount of one percent (1%) of the gross sales price of the Project. Such
a disposition fee will be paid in consideration for services rendered by Ramco
or its Affiliate with respect to the sale of the Project; provided, however, no
such fee shall be paid to Ramco or its designated Affiliate if Ramco or one of
its Affiliates is the purchaser. Furthermore, such fee shall be reduced by the
amount of any commission paid to a third party broker in connection with any
such sale, but in no event shall such fee be reduced to below one half percent
(1/2%). In addition, all expenses incurred by Ramco or any of its Affiliates in
connection with such disposition activities, including, without limitation,
travel expenses, the amount of any fees paid to outside brokers, legal fees and
all other consultants who perform or consult with respect to such disposition
activities shall be a direct obligation of Company. Such fees shall be paid at
the time of the closing of the sale of the Project.
4.18 REFINANCING FEE
The Company shall pay Ramco or any affiliate of Ramco a refinancing fee
in the amount of one quarter percent (1/4%) of the amount of refinancing
proceeds obtained upon a refinancing of the debt currently secured by the
Project. Such a refinancing fee shall be paid in consideration for services
rendered by Ramco with respect to obtaining such a refinancing and negotiating
the documentation with respect thereto. In addition, all expenses incurred by
Ramco or any of its Affiliates in connection with such refinancing activities,
including, without limitation, travel expenses, the amount of any fees paid to
outside brokers, legal fees and all other consultants who perform or consult
with respect to such refinancing activities shall be a direct obligation of the
Company. Such fees shall be paid at the time of the closing of any such
refinancing.
4.19 THE MEMBERS' BUY-SELL OPTIONS
a. For and in consideration of the willingness of each Member to enter
into this Agreement, each Member hereby grants to the other Member a "Buy-Sell
Option" to purchase the other Member's Membership Interest, or to sell its
Member's Membership Interest to the other Member, as the case may be, in
accordance with the terms and conditions hereinafter described. The Buy-Sell
Option shall be exercisable at any time after the first to occur of (-1-) a
Triggering Control Change and (-2-) the seventh (7th) anniversary of the
Acquisition Date (the "Option Exercise Date").
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b. At any time beginning on the Option Exercise Date, either Member, as
the "Offeror," may, deliver a written notice (a "Buy-Sell Notice") to the other
Member (the "Offeree") that the Offeror desires to exercise its rights under
this Section 4.19. No Buy-Sell Notice may be given if the Company is in
dissolution pursuant to Article VIII below. In order to calculate the applicable
"Buy Price" or "Sell Price" (hereinafter defined), the Buy-Sell Notice shall
specify a price at which the Offeror would be willing to permit the Project to
be sold to a third party in an arms length transaction (the "Offer Price") and
shall contain an offer both (i) to buy the Offeree's Membership Interest for an
amount (the "Buy Price") equal to the cash amount that such Offeree would
receive were the Project contemporaneously sold to a third party for the Offer
Price and all Net Sale or Refinancing Proceeds were determined and distributed
in accordance with Section 3.03 hereof (the "Buy Option") and (ii) to sell to
such Offeree the Membership Interest of the Offeror for an amount (the "Sell
Price") equal to the cash amount that such Offeror would receive were the
Project contemporaneously sold to a third party for the Offer Price and all Net
Sale or Refinancing Proceeds were determined and distributed in accordance with
Section 3.03 hereof (the "Sell Option").
c. In the event a Buy-Sell Notice is given to an Offeree, the Offeree
shall have a period of up to sixty (60) days after such notice in which to
exercise, by written notice to the Offeror, the Buy Option or the Sell Option.
If written notice of such election is not given to the Offeror within such sixty
(60) day period, it shall be conclusively deemed that the Offeree has elected to
accept the Buy Option. If either a Buy Option or a Sell Option is properly
exercised as set forth herein, the Offeror and the Offeree shall each buy and
sell, as the case may be, the entire Membership Interest in the Company of the
Offeror or the Offeree, as the case may be, such interest to be conveyed on or
before the thirtieth (30th) day after the delivery of the Exercise Notice or the
deemed election, whichever is applicable. At the closing, the Buy Price or Sell
Price, as applicable, shall be paid by the purchasing Member by official bank
check or by bank wire transfer of immediately available funds. The terms of the
purchase and sale shall be unconditional, except that (i) the Member whose
interest is being sold shall be deemed to represent and warrant to the
purchasing Member that its entire interest in the Company is owned by the
selling Member free and clear of all liens and encumbrances and is subject to no
legal or equitable claims, (ii) the purchasing Member shall be deemed to have
assumed all obligations and liabilities relating to the purchased interest
arising from transactions or events first occurring after the date of such sale
and (iii) the purchasing Member shall be deemed to have assumed any liability
for any contractual undertaking or indemnity by the selling Member in connection
with the Project (other than any breach by the selling Member of any
representation or covenant). Upon demand, each Member shall deliver to the other
appropriate documentation evidencing the sale, assignment, representation and
assumption set forth herein.
d. If any Member defaults in its obligation to sell its Membership
Interest or purchase the Membership Interest of the other Member, as applicable,
the non-defaulting Member may enforce its rights under this Section 4.19 by
bringing suit for specific performance, damages or any other available legal or
equitable remedy.
4.20 INVESTOR'S DUE DILIGENCE AMOUNT
Investor shall be reimbursed in the amount of Twenty-Five Thousand
Dollars ($25,000.00) for due diligence activities costs incurred by Investor
(the "Due Diligence Amount"). The Due Diligence Amount shall be deemed earned by
and shall be paid to Investor on the Acquisition Date.
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ARTICLE V
MANAGEMENT
5.01 MANAGEMENT VESTED IN A MANAGER
a. Except as otherwise provided in this Agreement, including, but not
limited to, the provisions of Section 5.02 hereof, the Company shall appoint
Ramco as its manager (hereinafter, in such capacity, the "Manager"). The Manager
shall carry out the purposes of the Company and the decisions and directives of
the Investment Committee and shall have in respect of its management of the
Company all of the powers of the Company and shall devote such time and
attention to the Company as is reasonably necessary for the proper management of
the Company and its properties. All actions, decisions, determinations,
designations, directions, appointments, consents, approvals, selections, and the
like to be taken, made, or given by and/or with respect to the Company, its
business and its properties as well as management of all Company affairs, shall
in each and every case be made by the Manager, subject to the terms and
conditions of this Agreement (including, but not limited to Section 5.02 hereof)
with respect to the same, if any, and all such actions, decisions,
determinations, designations, directions, appointments, consents, approvals,
selections, and the like shall be controlling and binding upon the Company.
b. The Manager shall have the full and exclusive right, power and
authority, on behalf of and in the name of the Company, to carry out any and all
objectives and purposes of the Company and to perform all acts and enter into
and perform all contracts and other undertakings which it may deem necessary or
advisable or incidental thereto. Accordingly, the Manager, except as otherwise
provided in this Agreement (including, but not limited to, the provisions of
Section 5.02. hereof), shall have the exclusive right, power and authority, on
behalf of the Company, without limitation but subject to carrying out the
purposes of the Company, to (i) oversee the property management and leasing
activities of the Project, (ii) compile monthly, quarterly or annual reports for
submission to the Investment Committee, as it so requires, (iii) prepare for
submission to the Investment Committee, annual budgets and business plans,
entity tax returns and related items, (iv) negotiate, enter into, perform,
amend, and take all actions in respect of any and all agreements, instruments,
and documents (including, but not limited to, leases, easements, and service
contracts affecting the Project), and (v) perform all acts that a Manager may
legally do pursuant to the Act that are consistent with the terms of this
Agreement and are designed to carry out the purposes and business of the
Company.
5.02 INVESTMENT COMMITTEE
a. The Company shall have an investment committee, (the "Investment
Committee") which shall have the right, power and authority, to make the
following decisions ("Major Business Decisions") on behalf of the Company:
(1) adopt and finalize an operating budget with respect to
each fiscal year of the Company. Ramco, no later than November 15 of each fiscal
year, shall prepare, or cause to have prepared, and delivered to the Investment
Committee a proposed operating budget for the Company with respect to the next
succeeding fiscal year, which budgets, at a minimum, shall reflect projected
revenues and expenses on a monthly basis. The Investment Committee shall approve
such operating budgets for the next succeeding fiscal year no later than
December 15 of the current fiscal year; provided, however, (i) if the budget
reflects increases in expenses which do not in the aggregate exceed ten percent
(10%) of the aggregate expenses in the
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previous year's budget, then the proposed budget shall be deemed automatically
approved, and (ii) if in any other case both members of the Investment Committee
cannot agree on an approved budget, the approved budget shall be the budget for
the previous year with expenses increased by ten percent (10%); which budget
shall govern and control for the fiscal year in question, it being acknowledged
that Ramco shall have the right to allocate such increase among expense items in
such budget as Ramco may determine. Ramco shall prepare, or cause to be
prepared, monthly revenue and expenditure statements (including year to date and
a quarterly modified forecast for the entire year) reflecting, among other
things, budget variances, and shall have same delivered to the Investment
Committee by the last day of the month following the month to which such
statement relates;
(2) enter into a lease with respect to the Project involving
the rental of more than 10,000 square feet;
(3) undertake any capital expenditure at the Project that
either individually, or in the aggregate, exceeds the approved budget by more
than $100,000 or for which the Investment Committee has not previously decided
to issue a Capital Call for the necessary funds; provided, however that
notwithstanding anything in this Section 5.02 a.(3) to the contrary, if any
capital expenditure is required to remedy a condition that would jeopardize the
physical integrity of the Project, and such an expenditure requires the consent
of the Investment Committee, then either any member of the Investment Committee
can demand that the Company obtain a report from a nationally recognized
structural engineering firm stating whether such condition jeopardizes the
physical integrity of the Project. If the report provides that the condition
jeopardizes the physical integrity of the Project, then the Investment Committee
shall authorize such expenditure;
(4) sell the Project or any interest in the Project other than
a sale pursuant to any provision of Section 4.19 hereof.
(5) approve and review any change to the property management
agreement, leasing contract and/or service contract in the forms attached hereto
as Exhibits which are entered into with Ramco or one of its Affiliates;
(6) determine the amount of reserves to be held by the Company
prior to making distributions of Distributable Cash Flow or Net Sale or
Refinancing Proceeds; and
(7) appoint and change any key service providers to the
Company (including legal counsel to the Company).
(8) acquire any other asset besides the Project (other than in
the ordinary course of business), and enter into, negotiate and include
agreements with respect thereto;
(9) borrow money, incur any other debts or obligations or
grant any liens outside of the Company's ordinary course of business, other than
those approved within a capital expenditure budget;
(10) change the amount of, amend, modify or change the
material terms of, extend the time for the payment of, or retire, discharge or
refinance any indebtedness or obligation of the Company referred to in (9)
above; or change the amount or value of, modify or change the nature or type of,
or make any other material modifications or changes with respect
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to, any security granted or collateral given for any Company indebtedness or
obligations referred to in (9) above; or amend, modify or change the material
terms of any agreement, instrument or document with respect to any such security
or collateral;
(11) enter into any agreement or arrangement with, engage in
any transaction with, or pay any fees or other amounts to, any Affiliate of
Investor, except either (i) to the extent expressly authorized under this
Agreement, or (ii) with respect to agreements, arrangements or transactions that
are at customary market rates based on similar fees or other amounts and other
terms for comparable transactions negotiated on an arms-length bases;
(12) extend the term of the Company;
(13) require additional capital contributions from the Members
pursuant to Section 2.02 a. hereof;
(14) change the purposes for which the Company has been
formed;
(15) take any actions outside the ordinary course of the
Company's business; and
(16) engage in any activity inconsistent with the purposes of
the Company.
The authority of the Investment Committee as set forth above shall be
utilized in its sole discretion.
SECTION 5.03 NUMBER; ELECTION; TERM OF OFFICE; AND QUALIFICATIONS
The number of members of the Investment Company shall be two (2),
consisting of one (1) member appointed by Investor and one (1) member appointed
by Ramco. Each member of the Investment Committee shall continue in office until
any successor shall have been appointed and shall qualify, or until his earlier
death or resignation as provided in Section 5.04 hereof. No member of the
Investment Committee need be a Member.
SECTION 5.04 RESIGNATION
Any member of the Investment Committee may resign at any time by giving
written notice to any Member of the Company. Unless otherwise specified therein,
such resignation shall take effect on the date of receipt thereof.
SECTION 5.05 VACANCIES
If any vacancy shall occur in the Investment Committee by reason of
death, resignation or otherwise, such vacancy may be filled by an appointment
made by the Member that appointed the person previously holding such vacant
position. In the event that the resignation of any member of the Investment
Committee shall specify that it shall take effect at a future date, the vacancy
resulting from such resignation may be filled prospectively in the same manner
as provided in the first sentence of this Section 5.05.
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5.06 ANNUAL AND REGULAR MEETINGS
After the annual meeting of the Members in each year, regular quarterly
meetings of the Investment Committee shall be held for the transaction of
business as may properly come before the meeting. The time, place and purposes
of such meeting shall be stated as set forth in Section 5.07 hereof, unless such
notice is waived. Any scheduled meeting may be waived by unanimous decision of
the Investment Committee.
5.07 SPECIAL MEETINGS
A special meeting of the Investment Committee may be called at any time
on the written request of at least one (1) member of the Investment Committee
then in office, and shall be held at such time and place, within or without the
State of Michigan, as may be fixed by such members of the Investment Committee
in such request, provided that the time so fixed shall permit the giving of
notice as provided in Section 5.07 hereof.
5.08 NOTICE OF MEETINGS
Notice of the time, place and purposes of each meeting of the
Investment Committee shall be sent to each member of the Investment Committee by
mail, addressed to such member at the address as it appears on the records of
the Company, or telephoned or delivered to him personally, at least thirty (30)
days before the meeting is to be held. Any notice may be waived or provided in
this Article V.
5.09 QUORUM
At all meetings of the Investment Committee, the presence of both
members shall be necessary and sufficient to constitute a quorum for the
transaction of business. If a quorum shall be present, any action may be taken
by the Investment Committee so long as such action shall have been approved by
both members of the Investment Committee. In the absence of a quorum, the member
of the Investment Committee present may adjourn the meeting from time to time,
for a period of not more than thirty (30) days at any one time, until a quorum
shall be present.
5.10 REIMBURSEMENT
The members of the Investment Committee shall not receive any
compensation, for their services, or allowances for expenses. Rather, the
members of the Investment Committee shall only be reimbursed for reasonable
expenses incurred in serving in such capacity.
5.11 PARTICIPATION IN A MEETING BY CONFERENCE TELEPHONE
The members of the Investment Committee may participate in meetings of
the Investment Committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
5.11 shall constitute presence in person at such meeting within the meaning of
Section 5.09 hereof, or for any other purpose.
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5.12 WRITTEN CONSENT IN LIEU OF MEETING
Any action required or permitted to be taken at any meeting of the
Investment Committee may be taken without a meeting if a written consent thereto
shall be signed by each member of the Investment Committee, and such written
consent or consents shall be filed with the minutes or proceedings of the
Investment Committee.
5.13 MINUTES
Such person as is designated by the Investment Committee shall prepare
written minutes or proceedings of all Investment Committee meetings, including
all actions taken, and promptly mail such minutes or proceedings to the members
of the Investment Committee.
ARTICLE VI
BOOKS, RECORDS AND ACCOUNTING
6.01 FISCAL YEAR ACCOUNTING
The Company shall operate on a calendar fiscal year. The Company shall
use the accrual method of accounting, or such other fiscal year or method of
accounting, as may be selected by the Manager.
6.02 BOOKS AND RECORDS
a. The Company shall at all times maintain all documentary materials
required by the Act and proper and complete and accurate books and records of
the Company's business and affairs, as well as such other books and records as
the Manager deems appropriate. Such books and records shall be kept at the
Company's principal office.
b. All such materials shall be available for inspection and copying, at
a Member's expense, by each Member or its designated representatives, during
ordinary business hours.
6.03 TAX MATTERS PARTNER
The Manager shall be the Tax Matters Partner and shall continue to act
as such unless and until it resigns or is removed by the terms of this
Agreement. "Tax Matters Partner" has the meaning set forth in Section 6231 (a)
(7) of the Code. The Tax Matters Partner shall have all rights and
responsibilities of that position described in Sections 6221 through 6234 of the
Code. Notwithstanding the foregoing, unless the Tax Matters Partner has obtained
the prior approval of Investor, the Tax Matters Partners shall not have the
power or authority to (i) choose any judicial, administrative or other forum in
which to contest or litigate any position or action taken by any taxing
authority against or with respect to the Company (or any Member with respect to
the Company), or (ii) agree to any extension of any period within which any
taxing authority must take action against or with respect to the Company (or any
Member with respect to the Company). The Tax Matters Partner shall give prompt
notice to the Members of any notices with respect to the Company received by the
Tax Matters Partner from any taxing authority. Each Member agrees that, upon
receipt of such notice from the Tax Matters Partner, it shall
21
respond promptly so the Tax Matters Partner may act accordingly with respect to
the issue at hand.
6.04 TAX INFORMATION AND FINANCIAL STATEMENTS
Ramco shall, at the Company's expense, prepare, or cause to be
prepared, and distributed to the Members, (i) within fifty (50) days after the
end of each calendar quarter, quarterly unaudited financial statements,
including an income statement, cash flow statement and balance sheet, with
respect to the preceding calendar month, and (ii within one hundred (100) days
after the end of each calendar year, the Company's tax return with respect to
such calendar year, and all information relating to the Company that is
necessary for the preparation of the Member's federal and state income tax
returns with respect to such calendar year. In the event either Member desires
to have any statement provided for in this Section 6.04 audited, then and in
that event, such Member shall have the right to cause such statement to be
audited, provided that the sole expense of such audit is borne by the Member
making such a request.
ARTICLE VII
ASSIGNMENT OF MEMBERSHIP INTERESTS,
WITHDRAWAL OF A MEMBER AND RELATED MATTERS
7.01 ASSIGNMENT
a. Except as otherwise expressly permitted herein, no Member shall have
the right to assign its Membership Interest, or any portion thereof, or to have
an assignee of its Membership Interest or any portion thereof, admitted to the
Company as a member in respect thereof, without the prior written consent of the
other Member. Notwithstanding anything contained in this Section 7.01 to the
contrary, each Member shall have the right, without obtaining the prior written
consent of the other Member, to assign its entire Membership Interest, and to
have such assignee of such entire Membership Interest admitted to the Company as
a Member in respect thereof, as follows: (i) Ramco may assign all or any portion
of its Membership Interest to any entity that is Controlled By Ramco, and (ii)
Investor may assign all or any portion of its Membership Interest to any entity
that is Controlled By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
b. For purposes hereof, the term (i) "assignment" means any sale,
conveyance, transfer, assignment, mortgage, pledge, encumbrance, hypothecation
or other alienation or disposition of any type or kind, (ii) "assign" means the
making of an assignment, (iii) "assignor" means a person who makes an assignment
and (iv) "assignee" means a person to whom or for whose benefit an assignment is
made.
7.02 SUBSTITUTION OF MEMBERS
If there is an assignment of a Member's Membership Interest that
complies with the provisions of Section 7.01a. hereof, the assignee shall only
be admitted to the Company as a Member (in addition to the consent requirement
for such admission as Member pursuant to Section 7.01a. hereof), and the
assignor shall cease to be a Member in respect of such Membership Interest or
portion thereof, if and when all of the following requirements have been
satisfied:
22
(i) such instruments as may be required by the Act or other applicable
law or to effect the continuation of the Company and the Company's
ownership of its properties are executed and delivered and/or filed;
(ii) the instrument of assignment binds the assignee to all of the
terms and conditions of this Agreement as if the assignee were a
signatory party hereto and does not release the assignor from any
liability or obligation, accruing prior to the date of the assignment,
of or in respect of the Membership Interest which is the subject of the
assignment;
(iii) the instrument of assignment is manually signed by the assignee
and assignor and is otherwise reasonably acceptable in form and
substance to the other Member, and such Member has consented to such
assignment (which consent may be given or withheld in the exercise of
its sole discretion);
(iv) such assignment shall not be prohibited by, or cause a breach of,
or cause events unrelated to the identity of the assignee but not the
nature of the assignee (e.g., tax-exempt status) that are unacceptable
to the other Member in the exercise of its reasonable discretion to
occur pursuant to, any agreement or understanding by which the assignor
or the assignee or any properties of the Company or the Company itself
is bound or affected.
An assignee of a Membership Interest pursuant to an assignment
permitted in this Agreement may, subject to the provisions of this Article VII,
be admitted as a Member in the Company in the place and stead of the assignor
Member in respect of the Membership Interest acquired from the assignor Member
and shall have all of the rights, powers, obligations, and liabilities, and
shall be subject to all of the restrictions, of the assignor Member, including,
without limitation, but without release of the assignor Member, the liability of
the assignor Member for any existing unperformed obligations of the assignor
Member. Each of the Members, on behalf of itself and its permitted successors
and assigns, hereby agrees and consents to the admission of any such assignee as
a Member as herein provided.
7.03 TRANSFERS OF INTERESTS IN MEMBERS
Each Member shall have the right, without the consent of the other
Member, to assign, transfer, convey, or create new interests in such Member; or
to participate in a merger or other similar transaction. In the event of a
transfer of substantially all of the interests in a Member to an unaffiliated
entity, or in the event of a merger, the surviving entity shall have all of the
rights and obligations of its predecessor as a Member of the Company, and such
successor shall have the right, if it so elects, to appoint a member of the
Investment Committee to replace the member of the Investment Committee appointed
by its predecessor.
7.04 REFERENCES TO "MEMBER" AND "MEMBERS" IN THE EVENT OF SUCCESSORS
In the event that either Ramco or Investor's Interest is held by a
successor to such Member, references in this Agreement to "Member" and "Members"
shall refer, as applicable and except as otherwise provided herein, to the
Membership Interest of the successor to the Membership Interest of Ramco or
Investor, as the case may be.
23
7.05 PROHIBITION ON WITHDRAWAL
a. Except in connection with an assignment of its entire Membership
Interest in the Company and the admission of the assignee to the Company
pursuant to, and in accordance with the provisions of this Agreement, no Member
may withdraw from the Company prior to dissolution and winding up. If either
Member shall withdraw from the Company in violation of the preceding sentence,
then:
(1) Unless the remaining Member elects otherwise, the
remaining Member shall, either alone or with others, continue the business of
the Company;
(2) The withdrawn Member shall be liable to the remaining
Member and to the Company for all damages resulting from the withdrawn Member's
withdrawal;
(3) The withdrawn Member shall cease to be a member of the
Company and shall cease to have any interest in, or any rights with respect to,
the Company, the Project and any other property or asset of the Company or the
business of the Company, and anything contained in this Agreement to the
contrary notwithstanding, the withdrawn Member shall have no right to receive
any distributions or other amounts from the Company or the remaining Member
under any Section of this Agreement; however, the withdrawn Member shall
nevertheless remain liable for all of its existing unperformed obligations to,
or with respect to, the Company and/or the remaining Member and for its share of
all existing liabilities of the company to third parties (to the extent, if at
all, such Member was so liable); and
(4) The withdrawn Member shall be deemed to have renounced its
Membership Interest and to have waived any right that it would otherwise have
under this Agreement, the Act or otherwise to demand or receive any amounts from
the Company or the remaining Member in respect of the value of its Membership
Interest or otherwise, or to be indemnified against present or future Company
liabilities, and the Company and the remaining Member shall have no obligation
whatsoever to pay the withdrawn Member the value of its Membership Interest or
any other amount or to indemnify it against any present or future Membership
liabilities.
b. If (and only if) the remaining Member elects not to continue the
business of the Company, the Company shall be wound up and liquidated pursuant
to the provisions of Article VIII hereof.
7.06 OCCURRENCE OF A DISABILITY EVENT WITH RESPECT TO A MEMBER
In the event of the occurrence of a Disability Event with respect to a
Member, the Company shall dissolve; unless, within ninety (90) days thereafter,
the remaining Member agrees to continue the business and affairs of the Company
with the representative of the Disabled Member or Successor. If the remaining
Member elects to continue the business and affairs of the Company pursuant to
the provisions of this Section 7.06, then the representative of the Disabled
Member or Successor, upon compliance with the provisions of Section 7.02 hereof,
shall be admitted as a member in the Company and shall have all of the rights of
the Disabled Member as a member in the Company to the extent of the Disabled
Member's Membership Interest, subject to the terms, provisions and conditions of
this Agreement.
7.07 SUCCESSION BY INDIVIDUALS TO MEMBERSHIP INTERESTS OF MEMBERS
24
In the event that any individual succeeds to the interest of any Member
in accordance with the terms of this Agreement, then the interest of such
individual Member in the Company, subject to the provisions of Section 7.02
hereof, may be:
(i) Assigned or disposed of by will or intestacy to or for the
benefit of any member or members of the deceased Member's Immediate Family; or
(ii) Assigned during his lifetime or at his death to a Family
Trust for such individual.
ARTICLE VIII
DISSOLUTION AND WINDING UP;
CONTINUATION OF BUSINESS
8.01 WINDING UP AND LIQUIDATION OF THE COMPANY
Upon dissolution, the Company shall cease carrying on its business and
affairs and shall commence the winding up of the Company's business and affairs
and the liquidation of its assets (subject, in all respects, to the provisions
of Section 4.19 hereof). Upon the winding up of the Company, the assets of the
Company shall be distributed first to creditors to the extent permitted by law,
in satisfaction of the Company's debts, liabilities and obligations and then to
Members in accordance with the provisions of Sections 3.03 a. hereof. Such
proceeds shall be paid to such Members within ninety (90) days after the date of
winding up.
8.02 CERTIFICATE OF DISSOLUTION
After the affairs of the Company have been wound up and the Company
terminated, a certificate of dissolution shall be executed and filed in the
office of the Secretary of State for the State of Delaware.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 INDEMNIFICATION
a. No Member nor any Designated Representative (each an "Indemnified
Person") shall be liable, responsible or accountable in damages or otherwise to
the Company or to any other Indemnified Person for (a) any act performed within
the scope of the authority conferred on such Indemnified Person by this
Agreement except for the gross negligence or willful misconduct of such
Indemnified Person in carrying out its obligations hereunder, (b) the
Indemnified Person's failure or refusal to perform any act, except those
expressly required by or pursuant to the terms of this Agreement, (c) the
Indemnified Person's performance of, or failure to perform, any act on the
reasonable reliance on advice of legal counsel to the Company, (d) the
negligence, dishonesty or bad faith of any agent, consultant or broker of the
Company selected, engaged, retained and monitored with reasonable care, or (e)
actions taken or omitted
25
in bad faith by such Indemnified Person.
b. In any threatened, pending or completed action, suit or proceeding,
each Indemnified Person shall be fully protected and indemnified and held
harmless by the Company against all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, proceedings, costs expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable attorneys' fees, costs of investigation, fines, judgments and amounts
paid in settlement, actually incurred by the Indemnified Person in connection
with such action, suit or proceeding) by virtue of its status as a Member or
Designated Representative, as the case may be, or with respect to any action or
omission taken or suffered that conforms to the standards for indemnity set
forth in Section 9.01a. The indemnification provided by this Section 9.01b.
shall be recoverable only out of the assets of the Company, and no Member shall
have any personal liability on account thereof or be required to make any
Capital Contributions for the sole purpose of satisfying such indemnification
obligation. The Investment Committee shall have the right to cause the Company
to obtain insurance to provide for coverage for an Indemnified Person to the
extent that such coverage is permitted under this Section 9.01.
9.02 NOTICES
a. Any notice, election, demand, request, consent, approval,
concurrence or other communication given or made under any provision of this
Agreement shall be deemed to have been sufficiently given or made for all
purposes if it is in writing and it is (i) delivered personally (or sent by
facsimile) to the party to whom it is directed at the address set forth in the
introductory paragraph of this Agreement or (ii) sent by first class mail,
certified mail, return receipt requested, addressed to the party to whom it is
directed, at its address set forth in the introductory paragraph of this
Agreement, or (iii) sent by receipted overnight package delivery service,
addressed to the party to whom it is directed, at its address set forth in the
introductory paragraph to this Agreement. A Member may change its address for
purposes of this Agreement by giving the other Member notice of such change in
the manner herein before provided for the giving of notices. Copies of any
notice, election, demand, request, consent, approval, concurrence or other
communication given or made in accordance with this Section 9.02 a. shall be
addressed and sent to:
If to Ramco, to: c/o Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Investor, to: West Acres Realty LLC
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
b. Except as otherwise expressly provided in this Agreement, any such
notice, election, demand, request, consent, approval, concurrence or other
communication (i) given or made in the manner indicated in clause (i) of Section
9.02 a. hereof, shall be deemed to be given or made on the day on which it is
delivered, (ii) given or made in the manner indicated in clause (ii) of Section
9.02 a. hereof, shall be deemed to be given or made on the fifth business day
after the day on which it was deposited in a regularly maintained receptacle for
the deposit of the United States' mail and (iii) given or made in the manner
indicated by clause (iii) of Section 9.02 a. hereof, shall be deemed to be given
or made on the second day after which it was delivered to the carrier.
9.03 TERMS
Nouns and pronouns will be deemed to refer to the masculine, feminine,
neuter, singular and plural, as the identity of the person or persons, firm or
corporation may in the context require.
9.04 ARTICLE AND SECTION HEADINGS
The article and section headings in this Agreement are for
identification only; they are not intended to interpret the intent of any of the
provisions of this Agreement.
9.05 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among the parties
hereto and contains all of the agreements among said parties with respect to the
subject matter hereof.
9.06 SEVERABILITY
If any provision hereof shall be judicially determined to be illegal,
or if the application thereof to any person or in any circumstance shall, to any
extent, be judicially determined to be invalid or unenforceable, the remainder
of this Agreement, or the application of such provision to persons or in
circumstances other than those to which it has been judicially determined to be
invalid or unenforceable, shall not be affected thereby, and each provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
9.07 AMENDMENT
This Agreement may be amended or revoked at any time by a written
agreement executed by both Members. No change or modification to this Agreement
shall be valid unless in writing and signed by both Members.
9.08 BINDING EFFECT
Subject to the provisions of this Agreement relating to
transferability, this Agreement will be binding upon and shall inure to the
benefit of the parties hereto, and their respective distributees, heirs,
successors and assigns.
9.09 GOVERNING LAW
27
This Agreement shall be governed by, construed and enforced in
accordance with, the laws of the State of Delaware.
9.10 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
will be deemed an original but all of which will constitute one and the same
document.
9.11 NO THIRD PARTY RIGHTS CREATED HEREBY
The provisions of this Agreement are solely for the purpose of defining
the interests of the Members, inter se; and no other individual, firm or entity
(i.e., a party who is not a signatory hereto or a permitted successor to such
signatory hereto) shall have any right, power, title, or interest by way of
subrogation or otherwise, in and to the rights, powers, titles, and provisions
of this Agreement.
9.12 ADDITIONAL ACTS AND INSTRUMENTS
Each Member hereby agrees to do such further acts and things and to
execute any and all instruments necessary or desirable and as reasonably
required in the future to carry out the full intent and purpose of this
Agreement.
9.13 DATE OF AGREEMENT
For all purposes hereof, the date of execution of this Agreement shall
be the last date on which this Agreement has been signed by the Members (which
date shall be inserted by the last signatory in the first paragraph of this
Agreement).
ARTICLE X
DEFINITIONS
10.01 DEFINITIONS
For purposes of this Agreement, the following terms have the following
respective meanings, unless the context clearly indicates a different meaning:
a. "Act" has the meaning specified in Recital A. of this Agreement.
b. "Adjusted Capital Account" has the meaning specified in Section
3.01d.(1) hereof.
c. "Adjusted Capital Contributions" means, with respect to each Member
for each fiscal year of the Company, the sum of (i) and (ii), where (i) is the
aggregate amount of cash actually contributed to the capital of the Company by
such Member through and including the last day of the preceding fiscal year, and
(ii) is the amount obtained by multiplying the aggregate amount of cash actually
contributed to the capital of the Company by such Member during such fiscal year
by a fraction, the numerator of which is the number of days remaining in such
fiscal
28
year when such cash was contributed to the Company denominator of which is the
total number of days in such fiscal year.
d. "Adjusted Capital Distributions" means, with respect to each Member
for each fiscal year of the Company, the sum of (i) and (ii), where (i) is the
aggregate amount of cash actually distributed by the Company to such Member
(except distributions pursuant to Sections 3.02 a.(1), 3.02 a.(2), 3.03 a. (1)
or 3.03 a. (2) hereof) prior to the first day of such fiscal year, and (ii) is
the amount obtained by multiplying the aggregate amount of cash actually
distributed by the Company to such Member (except distributions pursuant to
Sections 3.02 a.(1), 3.02 a.(2), 3.03 a.(1) or 3.03 a.(2) hereof) during such
fiscal year by a fraction, the numerator of which is the number of days
remaining in such fiscal year on the date that such cash was distributed by the
Company and the denominator of which is the total number of days in such fiscal
year.
e. "Affiliate" means, with respect to any Member, any person
(individual or entity, as the case may be) that, either directly or indirectly
through one or more intermediaries, Controls, or is Controlled By or is under
common Control with the person specified.
f. "Agreement" means this Limited Liability Company Agreement of
Ramco/West Acres LLC, as the same may be amended from time to time.
g. "Applicable Percentage" means, with respect to each Member, the
percentage set forth opposite such Member's name in column (3) on Exhibit A
attached hereto.
h. "Assignment", "assign", "assignor", and "assignee", as used in
Article VI hereof, shall have the respective meanings specified in Section 7.01
b. hereof.
i. "Buy Option" has the meaning specified in Section 4.19 b. hereof.
j. "Buy-Sell Option" has the meaning specified in Section 4.19 a.
hereof.
k. "Buy Price" has the meaning specified in Section 4.19 b. hereof.
l. "Capital Account" means a bookkeeping account maintained by the
Company with respect to each Member, which shall be:
(1) credited with the amount of cash and the initial fair
market value of any other property contributed by such Member to the
capital of the Company, such Member's distributive share of Profits,
any items of income or gain that are allocated to such Member pursuant
to Section 3.01 hereof, and the amount of any Company liabilities that
are assumed by such Member or that are secured by any Company property
distributed to such Member, and
(2) debited with the amount of cash, and the fair market value
of any Company property, distributed to such Member pursuant to any
provision of this Agreement, such Member's distributive share of
Losses, any items of expense or loss that are allocated to such Member
pursuant to Section 3.01 hereof, and the amount of any liabilities of
such Member that are assumed by the Company or that are secured by any
property contributed by such Member to the Company.
29
In the event that a Member's Membership Interest or a portion thereof
is transferred in accordance with the provisions of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the extent
that it relates to the Membership Interest or portion thereof so transferred.
In the event that adjustments are made to the value of the Company
assets pursuant to the provisions of Section 1.704-1(b) of the Treasury
Regulations, the Capital Accounts of all Members shall be adjusted
simultaneously to reflect the aggregate net adjustment as if the Company
recognized gain or loss equal to the amount of such aggregate net adjustment.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and
applied in a manner consistent with such Regulations.
n. "Capital Call Notice" has the meaning specified in Section 2.02 c.
hereof.
o. "Capitalization Rate" has the meaning specified in Section 4.19 c.
hereof.
p. "Cash Disbursements" has the meaning specified in Section 3.02
b.(2)(b) hereof.
q. "Cash Receipts" has the meaning specified in Section 3.02 b.(2)(a)
hereof.
r. "Certificate" has the meaning specified in Section 1.01 hereof.
s. "Code" means the Internal Revenue Code of 1986, as amended.
t. "Company" has the meaning specified in Recital A. to this Agreement.
u. "Consideration Period" has the meaning specified in Section 4.13 c.
hereof.
v. "Control(s)" (and its correlative terms "Controlled By", "Under
Common Control With" and "Controlling") means with respect to any Member, or
other entity, possession by the applicable individual or individuals or entity
or entities of the power, acting alone (or, solely among such individuals or
entities, acting together), to designate and direct or cause the designation and
direction of the management and policies thereof whether through the ownership
of voting securities, by contract or otherwise.
w. "Defaulting Member" has the meaning specified in Section 2.03.
hereof.
x. "Disability Event" means, with respect to each Member, the
dissolution, termination, cessation of existence, bankruptcy or insolvency of
such Member.
y. "Disabled Member" means any Member with respect to whom a Disability
Event has occurred.
z. "Distributable Cash Flow" has the meaning specified in Section 3.02
b. hereof.
aa. "Due Diligence Period" has the meaning specified in Section
4.13 f. hereof.
30
bb. "Event of Default" has the meaning specified in Section 2.03
a. hereof.
cc. "Family Trust" means with respect to an individual, a trust
for the benefit solely of such individual or for the benefit
of any member or members of his Immediate Family or for the
benefit of such individual and any member or members of such
individual's Immediate Family (for the purpose of determining
whether or not a trust is a Family Trust, the fact that one or
more of the beneficiaries (but not the sole beneficiary) of
the trust includes a person or persons, other than a member of
such individual's Immediate Family, entitled to a principal
distribution if he, she, it, or they shall have survived the
settlor of such trust, which distributions to be made of
something other than a Membership Interest and/or includes an
organization or organizations exempt from federal income tax
pursuant to the provisions of Section 501(a) of the Code and
described in Section 501(c)(3) of the Code shall be
disregarded); provided, however, that in respect of transfers
by way of testamentary or inter vivos trust, the trustee or
trustees shall be solely such individual, a member or members
of such individual's Immediate Family, a responsible financial
institution, an attorney that is a member of the Bar of any
State in the United States, or an individual or individuals
approved by that Member or those Members than holding an
aggregate Applicable Percentage of at least eighty percent
(80%).
dd. "Formation Date" has the meaning specified in Section 1.01
hereof.
ee. "Immediate Family" means with respect to any individual, such
individual's spouse (past or current), descendants (natural or
adoptive), grandparents, parents, siblings of the whole or
half blood, and descendents of parents of such individual's
spouse (past or present).
ff. "Inactive Member" has the meaning specified in Section 2.03 d.
hereof.
gg. "Indemnified Person" has the meaning specified in Section 9.01
a. hereof.
hh. [Intentionally Deleted].
ii. "Investment Committee" has the meaning specified in Section
5.02 a. hereof.
jj. "Investor" has the meaning specified in the introductory
paragraph to this Agreement.
kk. "LIBOR Rate" shall mean the rate per annum (rounded upwards,
if necessary, to the nearest 1/32nd of one percent) as
determined on the basis of the offered rates for deposits in
Dollars, for the period of time comparable to such Interest
Period which appears on the Telerate page 3750 as of 11:00
a.m. London time on the day that is two (2) LIBOR Business
Days (i.e., any day(s) on which commercial banks are open for
international business (including dealings in Dollar deposits)
in London) preceding the first day of such Interest Period;
provided, however, if the rated described above does not
appear on the Telerate System on any applicable interest
determination date, the LIBOR Rate shall be the rate (rounded
upwards as described above, if necessary) for deposits in
Dollars for a period substantially equal to the Interest
Period on the Reuters Page "LIBO" (or such
31
other page as may replace the LIBO Page on that service for
the purpose of displaying such rates), as of 11 a.m. (London
Time), on the day that is two (2) LIBOR Business Days prior to
the beginning of such Interest Period. If both the Telerate
and Reuters systems are unavailable, then the rate for that
date will be determined on the basis of the offered rates for
deposits in Dollars for a period of time comparable to such
Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) LIBOR Business Days preceding
the first day of such Interest Period as selected by Manager.
The principal London office of each of the four major London
banks will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two such quotations
are provided, the rate for that date will be the arithmetic
mean of the quotations. If fewer than two quotations are
provided, the rate for the date will be determined on the
basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to such
Interest Period offered by major banks in New York City at
approximately 11:00 a.m. (New York City time), on the day that
is two (2) LIBOR Business Days preceding the first day of such
Interest Period. In the event the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with
respect to LIBOR deposits of Agent, then for any period during
which such Reserve Percentage shall apply, the LIBOR Rate
shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage.
ll. "LIBOR Reference Rate" shall mean the LIBOR Rate at any time
applicable plus 450 basis points.
mm. "Major Business Decisions" has the meaning specified in
Section 5.02 a. hereof.
nn. "Manager" has the meaning specified in Section 5.01 a. hereof.
oo. "Maximum Required Aggregate Contribution" has the meaning
specified in Section 2.02 a. hereof.
pp. "Member" shall refer to any person designated as a member of
the Company on Exhibit A attached hereto, or any successor in
interest admitted as a member pursuant to the provisions of
this Agreement, and "Members" shall refer to both Members
collectively.
qq. "Membership Interest" means, with respect to each Member, (i)
such Member's entire interest in the Company, and the
property, assets and capital thereof, and (ii) the share of
the Profits, Losses, items of income, gain, expense or loss
and distributions of the Company allocable to such Member
under the provisions of this Agreement.
rr. "Net Adjusted Capital Contributions" means, with respect to
each Member for each fiscal year of the Company, the Adjusted
Capital Contributions with respect to such Member for such
fiscal year less the Adjusted Capital Distributions with
respect to such Member for such fiscal year, but not less than
zero.
ss. "Net Operating Income" has the meaning specified in Section
4.19 c. hereof.
32
tt. "Net Sale or Refinancing Proceeds" has the meaning specified
in Section 3.03b. hereof.
uu. "Nondefaulting Member" has the meaning specified in Section
2.03 a. hereof.
vv. "Offeree" has the meaning specified in Section 4.19 b. hereof.
ww. "Offer Price" has the meaning specified in Section 4.19 b.
hereof.
xx. "Offeror" has the meaning specified in Section 4.19 b. hereof.
yy. "Omitted Contribution" has the meaning specified in Section
2.03 a. hereof.
zz. "Option Exercise Date" has the meaning specified in Section
4.19 a. hereof.
aaa. "Preliminary Investment Opportunity Notice" has the meaning
specified in Section 4.13 e. hereof.
bbb. "Profit" and "Loss" each has the meaning specified in Section
3.01d.(2) hereof.
ccc. "Project" has the meaning specified in Section 1.03 hereof.
ddd. "Preferred Return" means, with respect to each Member for each
fiscal year of the Company, an amount of Cash Flow with
respect to such fiscal year equal to sixteen (16%) percent
(adjusted in an appropriate manner, as determined by the
Investment Committee, with respect to any short fiscal year)
of the Net Adjusted Capital Contributions of such Member with
respect to such fiscal year. The Preferred Return shall not be
compounded. The Preferred Return shall be cumulative, such
that if the Cash Flow with respect to any fiscal year of the
Company shall be insufficient to cover the full amount of the
Preferred Return with respect to such Member for such fiscal
year together with the unpaid portion of the Preferred Return
with respect to such Member for each prior fiscal year of the
Company, then the unpaid portion of the Preferred Return with
respect to such Member for such fiscal year and each prior
fiscal year of the Company shall be carried forward to the
succeeding fiscal year, and from fiscal year to fiscal year,
and shall be paid out of, and to the extent of, the first
available Cash Flow or Net Sale or Refinancing Proceeds, as
provided in this Section 10.01 aaa., and in Section 3.02 a.
(2) and Section 3.03 a. (2) hereof, as the case may be.
eee. "Ramco Member" shall mean the entity specified in the
introductory paragraph to this Agreement.
fff. "Regulations" has the meaning specified in Section 3.01d.(3)
hereof.
ggg. "Regulatory Provisions" has the meaning specified in Section
3.01 c. hereof.
hhh. "RGI" has the meaning specified in Section 4.15 a. hereof.
iii. "Sell Option" has the meaning specified in Section 4.19 b.
hereof.
jjj. "Sell Price" has the meaning specified in Section 4.19 b.
hereof.
33
kkk. "Successor" means, with respect to a Disabled Member, such
Disabled Member's successor(s) in interest, personal
representative(s) heirs at law, legatee(s), or estate.
lll. "Tax Matters Partner" has the meaning specified in Section
6.03 hereof.
mmm. "Termination Date" has the meaning specified in Section 1.05
b. hereof.
nnn. "Triggering Control Change" means any event the result of
which is either (i)(-1-) that Ramco (or its Affiliate) no
longer owns or Controls its Membership Interest in the Company
or (-2-) that none of the current Controlling persons (or any
Affiliate thereof) of Ramco's general partner any longer
Controls such general partner, or (ii) (-1-) that West Acres
Realty LLC no longer owns or controls its Membership Interest
in the Company or
(-2-) that either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ no longer
controls West Acres Realty LLC.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the date first
above written.
"INVESTOR"
WEST ACRES REALTY LLC
By: _______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Member
"RAMCO"
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust,
a Maryland real estate investment trust
its general partner
By:____________________________________
Its:_____________________________
34
ACCEPTANCE BY DESIGNATED REPRESENTATIVES
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, hereby accepts the appointment as
the designated representative of Investor pursuant to Section 4.11 a. hereof and
acknowledge and agree that he may only resign as the designated representative
of Investor in accordance with the procedures set forth in Section 4.11 a.
hereof.
The undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, hereby accepts the appointment as
the designated representative of Ramco pursuant to Section 4.11 b. hereof and
acknowledge and agree that he may only resign as the designated representative
of Investor in accordance with the procedures set forth in Section 4.11b.
hereof.
35
EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
RAMCO/WEST ACRES LLC
(1) (2) (3)
Initial
Capital Applicable
Member Contribution Percentages
------ ------------ -----------
1. Investor 60%
2. Ramco 40%
36
EXHIBIT B
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
RAMCO/WEST ACRES LLC
--------------------------------------------------------------------------------
FORM OF MANAGEMENT AND LEASING AGREEMENT
37
EXHIBIT B
MANAGEMENT AND LEASING AGREEMENT
This Management and Leasing Agreement ("Agreement") made as of the ___
day of September ____, 2001, between RAMCO-▇▇▇▇▇▇▇▇▇▇, INC., a Michigan
corporation (hereinafter "Manager"), having offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and RAMCO/WEST ACRES LLC, a
Delaware limited liability company, (hereinafter "Owner") with offices at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Owner is the owner of certain real property in the City of
Flint, Genesee County, Michigan, more particularly described on Exhibit A hereto
(including any adjacent property which may be identified and added by Owner at
later date, the "Site") on which is located a shopping center commonly known as
"West Acres Commons" (the "Project"); and
WHEREAS, Manager is experienced in the management and leasing of
projects similar to the Project; and
WHEREAS, Owner desires to appoint Manager to manage and lease the
Project on behalf of Owner, and Manager desires to accept such appointment and
to manage and lease the Project in conformance with the requirements of Owner.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Owner and Manager agree as follows:
ARTICLE I.
RETENTION OF MANAGER; TERM
1.1. MANAGEMENT AGREEMENT. Owner hereby hires Manager, and Manager
hereby accepts such employment, to manage and lease the Project and to carry out
all related duties of Manager as set forth herein, all in accordance with the
terms and conditions set forth in this Agreement.
1.2. TERM. The initial term of this Agreement shall commence on the
date hereof and shall continue for ten (10) years unless earlier terminated in
accordance with Article X hereof.
ARTICLE II.
PROPERTY MANAGEMENT
2.1. GENERAL MANAGEMENT DUTIES. Subject to the availability of funds
provided under the Operating Budget (as hereinafter defined), Manager shall
manage and operate the Project in a manner consistent with the management and
operation of comparable properties, shall provide such services as are
customarily provided by a manager of properties of comparable class and
standing, and shall consult with Owner and keep Owner advised as to all material
or extraordinary matters and decisions affecting the Project. Notwithstanding
the above, it is understood and agreed that Manager shall have the right from
time to time to engage third parties to assist Manager in the performance of
services and duties hereunder, but such engagement shall not relieve Manager of
any of its obligations or duties under this Agreement. Specifically, Manager
shall, at Owner's expense, perform the following services and duties for Owner
in a faithful, diligent and efficient manner:
(a) (i) Accounting and Operations Reports. Manager shall timely
prepare and deliver to Owner such accounting and operations reports as and in
the manner required pursuant to
Manager's standard reporting requirements, as same may be modified and
supplemented by the requirements of any construction or permanent lender with
respect to the Project.
(ii) Throughout the term of this Agreement, Manager shall
establish procedures in accounting, auditing and rendering of statements of
payment in such detail as may be necessary for proper financial management under
this Agreement. The procedures instituted by Manager shall be in conformance
with Manager's typical procedures in developing and managing retail centers.
Manager shall keep accurate books of accounts showing costs incurred hereunder,
which books of accounts shall be open to inspection by Owner and its
representatives at all reasonable times upon reasonable notice. Copies of all
such accounting records shall be retained by Manager and available for reference
for a period of at least two (2) years after the year in which they are
applicable.
(b) Collection of Rents. Manager shall use its best efforts to
collect all amounts payable by tenants, subtenants, licensees and
concessionaires of the Project (any of such parties hereafter being referred to
as "Tenant") to or for the account of Owner, including, without limitation,
fixed minimum rent ("Fixed Rent"), any rent payable to Owner by any Tenant which
is based upon a percentage of the sales of such Tenant ("Percentage Rent"), and
other escalations, reimbursements, settlements, awards, fees, adjustments and
other amounts by or due from Tenants and any sums otherwise accruing to Owner
from Tenants with respect to the Project on a timely basis (collectively,
"Rent"). Owner hereby authorizes Manager to receive and collect all Rent on
behalf of Owner. Manager shall serve notices of default upon Tenants and other
parties who are in default in performing their obligations under any of the
Tenant leases or under any other documents relating to the operation of the
Project, with copies sent simultaneously to Owner, and attempt to cause Tenants
to cure such defaults. Owner hereby authorizes Manager, as appropriate, to
request or demand (either orally or in writing and including, after Manager has
used its best efforts to collect the same, through the use of a collection
agency approved by Owner, at Owner's expense) that Tenants pay Rent. Manager
shall pursue, on behalf of Owner, any and all of Owner's legal remedies against
any Tenant upon Tenant's default of any of the terms or provisions of their
Tenant lease. Notwithstanding the foregoing, Manager shall not have the right to
institute legal proceedings in its name or in the name of Owner for the
dispossession of Tenants occupying more than ten thousand (10,000) square feet
from the Project without, in each case, the prior written consent of Owner.
(c) Marketing Services. In the event Owner establishes a
merchants' association and/or contributes to a marketing or advertising fund in
connection with the Project, which shall be done only if Tenants of the Project
require same, Manager shall perform Owner's administrative duties in connection
therewith.
(d) Personnel. With respect to the Project, Manager shall cause to
be hired, paid, supervised, and terminated as employees of Manager or, at
Manager's election, as independent contractors, all persons whom Manager
reasonably deems necessary to maintain and operate the Project. Such persons
shall be hired, paid and supervised at Manager's sole cost and expense, except
to the extent provided in the Operating Budget or as otherwise approved by Owner
and except for those persons whose salaries or charges are reimbursed by Tenants
or as part of the cost of common area maintenance or as part of the expenses of
the operation and maintenance of the Project. Manager shall use due care in the
selection and supervision of personnel or independent contractors employed in
the operation and maintenance of the Project, and of each person in the general
employ of Manager to whom said duties are delegated. Such persons shall in every
instance be deemed independent contractors or employees of Manager and not
employees or agents of Owner. Owner shall have no obligation to supervise such
persons directly, and Manager shall be responsible for their activities and
performance hereunder. Manager shall comply with all local, state and federal
labor and tax laws and regulations, including, without limitation, worker's
compensation, social security, unemployment insurance, hours of labor, wages,
working conditions, and other employer-employee related subjects. Manager shall
file all local,
2
state and federal labor payroll tax reports and other similar reports, and shall
timely make payments of all withholding and other payroll taxes with respect to
such persons.
(e) Project Employee Records. Manager shall keep such reports for
hourly payroll personnel employed by the Project and adequate payroll records
bearing explanation of the work performed by such employees as Manager
customarily prepares, which reports and payroll records shall be available for
inspection by Owner or its authorized representatives. In selecting and hiring,
promoting and/or dismissing employees, Manager shall fully comply with all laws
and regulations relating to equal opportunity employment.
(f) Cleaning and Repairs. Manager shall keep the Project in a
clean and sightly condition and recommend and make all repairs and changes
(subject to the more specific provisions of this Agreement), arrange for all
decorating, and purchase all supplies, necessary for the proper operation of the
Project or the fulfillment of Owner's obligations under any Tenant lease or
lender's requirement and in order to comply with all applicable laws. Manager
shall not make any purchase or do any work, the cost of which shall exceed the
amount set forth in the Operating Budget (as same may be modified in accordance
with Section 2.2 hereof or as required in a lease approved by Owner) without, in
each instance, obtaining the prior written approval of Owner. Manager shall use
its best efforts to obtain all discounts and rebates available in connection
with its operation of the Project and Owner shall receive the benefit of all
such rebates and discounts from the contractors and suppliers supplying such
work, labor and services.
(g) Insurance Losses. Manager shall promptly upon obtaining
knowledge thereof notify Owner and Owner's applicable insurance carrier of any
personal injury or property damage occurring to or claimed by any Tenant or
third party against Owner on or with respect to the Project, of any fire or
other casualty causing damage to the Project or of any other claims made against
Owner with respect to the Project. Manager shall promptly forward to the
carrier, with copies to Owner, any summons, subpoena, or other like legal
document served upon Manager relating to actual or alleged potential liability
of Owner, Manager, or Project, and in any event such notification shall be given
within the time period required in any applicable insurance policy. In the case
of any fire or other casualty causing material damage to the Project, Manager
shall also upon obtaining knowledge thereof immediately give telephonic notice
thereof to Owner's designated casualty insurance carrier so that an insurance
adjuster can view the damage before repairs are started and complete customary
loss reports in connection with such fire or other damage to the Project.
Manager hereby agrees to indemnify and hold Owner harmless from and against any
and all losses, damages, liabilities or claims of any nature, including costs
and expenses incident thereto in connection with any uninsured losses
attributable to any act or omission of Manager (including without limitation any
deductible otherwise payable by Owner and not collectible from Tenants).
(h) Preparation of Forms, Reports and Returns. Manager shall
prepare or cause to be prepared for execution and filing by Owner all forms,
reports and returns, if any, required by all federal, state, or local laws in
connection with unemployment insurance, workmen's compensation insurance,
disability benefits, Social Security and other similar taxes now in effect or
hereafter imposed, and also any other requirements relating to the contracting
of third party vendors for the Project; however, Manager shall not be obligated
to prepare any of Owner's local, state, or federal income tax returns.
(i) Real Estate and Property Taxes; Payment of Taxes. Manager
shall monitor, review and keep Owner advised with respect to real estate and
property tax assessments relating to the Project and pay, prior to delinquency
all real estate taxes, sales tax, personal property taxes and assessments levied
against the Project, or any part thereof, and assist Owner, when so requested,
to try to reduce such assessments and taxes. Manager may, with Owner's prior
written approval, engage outside property tax consultants and certiorari
attorneys, for the benefit of and at the sole cost and expense of Owner to
assist
3
Manager in connection with such tax and assessment matters. Manager shall
monitor, verify and intervene of necessary to cause the timely and full payment
of all property taxes paid directly by any Tenant or from any tax escrow
administered by a lender.
(j) Public Representation. Manager shall represent the interests
of Owner with respect to all public bodies, such as taxing, police, fire, state,
county, township or other municipal or public authorities by notifying Owner of
all matters of which Manager becomes aware which would have an adverse impact on
the Project and by giving notice of any changes in legal requirements of which
Manager becomes aware and, at the direction of Owner, attend meetings and/or
generally communicate with such governmental entities.
(k) Tenant Insurance. Manager shall obtain from Tenants and, upon
request, promptly forward to Owner any and all certificates of insurance and
renewals thereof required to be furnished under any Tenant lease.
(l) Miscellaneous Duties. Subject to the limitations of the
applicable approved Operating Budget adopted pursuant to Section 2.2 hereof,
perform such other acts as are reasonable, necessary and proper in the discharge
of its duties under this Agreement.
2.2. OPERATING BUDGET.
(a) Operating Budget Approval Process. Manager shall prepare and
submit to Owner for approval by Owner by November 15 of each year during the
term hereof a proposed budget (the "Operating Budget") for the operation of the
Project during the following calendar year or other operating period as may be
specified by Owner (the "Operating Year"). Until Manager has obtained an
approved Operating Budget, Manager may continue to operate pursuant to the last
approved Operating Budget, increased by an aggregate of ten percent (10%) of the
total expenditures set forth in such last approved Operating Budget, which
increase may be allocated among budget line items as Manager deems appropriate.
In the absence of any written notice of approval within thirty (30) days after
delivery of a proposed Operating Budget to Owner, the proposed Operating Budget
shall be deemed to have been approved by Owner.
(b) Payment of Budgeted Expenses. Manager shall have the right to
pay all expenses according to the approved Operating Budget, including the
Management Fee, Leasing Fee, and Construction Management Fee (hereinafter
defined). Notwithstanding any other provision in this Agreement, without the
prior consent of Owner, Manager shall not incur or permit to be incurred
expenses under this Agreement (excluding only utility expenses, general real
estate taxes, insurance premiums, financing costs and emergency expenses) that
exceed ten percent (10%) of the applicable line items in the Operating Budget
(e.g., CAM, taxes, electricity and other operating expenses) except that Manager
may increase any line item by allocating contingency amounts thereto or by
allocating cost savings in one line item to another line item. Manager shall
promptly notify Owner whenever Manager determines that the Operating Budget or
any expense item in the Operating Budget is insufficient to cover the expenses
of operating the Project or the applicable expense item.
2.3. REIMBURSABLE AND NONREIMBURSABLE COSTS. All costs properly
incurred by Manager in the performance of its duties under this Agreement shall
be reimbursed by Owner.
2.4. PROPERTY PERSONNEL. Manager shall employ, pay, and supervise
all employees necessary in connection with the operation and management of the
Project. Manager shall provide and maintain, so long as this Agreement is in
force, worker's compensation insurance in accordance with all applicable laws
covering all employees of Manager performing work in respect of the Project
operations.
4
2.5. CONTRACTS AND SUPPLIES. Manager shall, at Owner's expense,
strictly in accordance with the provisions of the approved Operating Budget,
obtain all licenses and permits required in the management and operation of the
Project, enter into contracts or orders on behalf of Owner for the furnishing to
the Project of required utility services, heating and air-conditioning services,
cleaning, snow and ice removal, landscaping and other maintenance, pest control,
and any other services and concessions which are reasonably required in
connection with the maintenance and operation of the Project and for materials
and supplies necessary for the day-to-day operation and maintenance of the
Project. All such contracts and orders shall be subject to the limitations set
forth in the approved Operating Budget, subject to Section 2.2(b) hereof.
2.6. ALTERATIONS, REPAIRS AND MAINTENANCE.
(a) Budgeted Repairs/Emergency Repairs. Manager shall, at Owner's
expense, in accordance with the provisions of the approved Operating Budget,
perform or cause to be performed all necessary or desirable repairs,
maintenance, cleaning, painting and decorating, alterations, replacements and
improvements in and to the Project as are customarily made by property managers
in the operation of properties of the kind, size, and quality of the Project;
provided, however, that no unbudgeted alterations, additions or improvements
involving a fundamental change in the character of the Project or constituting a
major new construction program shall be made without the prior written approval
of Owner unless performed pursuant to any lease approved or deemed approved by
Owner. However, emergency repairs immediately necessary for the preservation or
the safety of the Project, or for the safety of the tenants and their invitees
of the Project or required to avoid the suspension of any necessary service to
the Project may be made by Manager without prior approval and regardless of the
cost limitations imposed by this Section 2.6(a). Manager shall as soon as
practicable give notice to Owner of any such emergency repairs for which prior
approval is not required.
(b) Capital Improvements. In accordance with the terms of approved
Operating Budget or upon written approval of Owner, Manager shall, from time to
time during the term hereof, at Owner's expense, make or cause to be made all
required capital improvements, replacements, or repairs to the Project.
(c) Maintenance. Manager, except as otherwise provided in this
Agreement, agrees to use its best efforts in the management, leasing, operation
and maintenance of the Project, and Manager hereby agrees to comply with all
written instructions of Owner which are within the scope of and consistent with
Manager's obligations hereunder. Manager shall maintain the Project strictly in
accordance with the leases for the Project, subject to the terms of this
Agreement and all obligations imposed by any Project lender, provided Owner
shall provide Manager with copies of the loan documents setting forth such
obligations. Manager shall pay the expenses incurred in connection with the
maintenance of the Project strictly in accordance with the provisions of the
Operating Budget and as otherwise provided in Section 2.2 hereof by applying the
funds deposited in the Owner's Account. Unless specifically authorized in
advance by Owner in writing, Manager shall not make any expenditure that is not
authorized in the Operating Budget or otherwise pursuant to Section 2.2 hereof,
except that Manager may incur any expenditure for repairs or replacements which
are required by a Tenant lease or which are not in excess of Twenty-Five
Thousand Dollars ($25,000.00) for a single item or would not cause the aggregate
amount of the expenditures set forth in the Operating Budget in any one fiscal
year to be exceeded by One Hundred Thousand Dollars ($100,000) or more.
Notwithstanding the aforesaid, such limits and restrictions shall not include or
apply to any expenditures hereunder the cost of which are directly passed
through to tenants or to any parties to reciprocal easement agreements, and
provided further that if Manager, in its reasonable business judgment, concludes
that emergency repairs or replacements are immediately necessary for the
preservation of any portion of the Project or safety of persons or are required
to avoid the suspension of any necessary service in the Project or to prevent a
5
material default of Owner under any Loan Document (individually or collectively,
an "Emergency Situation"), and Manager, after using reasonably diligent efforts,
is unable to consult with Owner by telephone, telecopier or electronic mail
prior to taking any action in such Emergency Situation, then Manager may take
said action without the prior approval of Owner and the limitations on
expenditures set forth above shall not apply to such action. If Manager takes
such action by reason of an Emergency Situation, Manager shall notify Owner
orally or in writing as quickly as possible after taking such action and shall
specify in reasonable detail the reason for taking such action and the cost
thereof. Manager's right to exceed the Operating Budget as expressly set forth
above, is referred to herein as the "Budget Increase Limit".
(d) Equipment. On behalf of Owner, Manager shall purchase or lease
for Owner all supplies and equipment which Manager shall deem necessary to
maintain and operate the Project, subject to the Operating Budget and the Budget
Increase Limit. All discounts obtained by Manager in connection with such
purchase or lease of supplies and equipment shall be for the benefit of Owner.
(e) Approval of Contracts and Other Agreements. Except as
expressly provided herein, Manager shall not approve the execution of or enter
into any service contract or other agreement on behalf of Owner or otherwise
bind Owner without the prior consent of Owner. Manager may enter into such
service contract or other agreements (excluding Tenant leases) on behalf of
Owner without Owner's consent, provided that each such agreement (i) (A) is
routinely required for the management, operation or maintenance of the Project
and/or relates to the provision of utility, maintenance or other services to
Tenants, (B) is for a term of not more than one year or is terminable on not
more than forty-five (45) days' notice by Owner without penalty or additional
payments and (C) would not cause the Budget Increase Limit to be exceeded or
(ii) is made necessary by an Emergency Situation. Manager shall promptly provide
Owner with a copy of each agreement entered into pursuant to this section.
Manager shall not hold itself out as having the authority to approve Tenant
leases or any other contract or agreement without the prior written approval of
Owner, except as expressly provided herein.
(f) Compliance with Governmental Orders. Manager, at Owner's cost
and expense, shall use its best efforts to cause the Project to be in compliance
with any and all laws, ordinances, codes, rules, regulations and orders
applicable to the Project promulgated by any federal, state, county or municipal
authority having jurisdiction and the orders of the board of fire underwriters
or other similar body having jurisdiction over the operating or equipping of the
Project (collectively, "Governmental Requirements"), provided that, unless
specifically authorized in advance by Owner in writing, Manager shall not incur
any expenditure for such compliance which would cause the Budget Increase Limit
to be exceeded, except if, in Manager's reasonable business judgment, such
compliance is required by an Emergency Situation.
(g) Signs. Manager, at Owner's cost and expense, shall place and
remove, or cause to be placed and removed, such signs on the Project as Manager
in the exercise of its reasonable business judgment deems appropriate, subject
to the terms of any applicable laws. Notwithstanding the foregoing, upon Owner's
request, Manager shall place or remove any signs which Owner requests be placed
or removed from the Project.
2.7. OPERATING ACCOUNT. Manager has opened and shall maintain an
account separate from Manager's personal account (the "Operating Account". The
Operating Account shall be in the name of Owner, and shall be the property of
Owner. Manager shall deposit, with reasonable promptness, in the Operating
Account all funds collected by Manager under this Agreement, and shall withdraw
from such Operating Account, when due, Manager's compensation under this
Agreement. Manager shall make deposits and withdrawals from the Operating
Account as required in connection with the performance of the management
activities set forth in this Article II (collectively, the "Management
Activities").
6
Through the use of signature cards, authorized representatives of Manager shall
be permitted access to any and all funds in the Operating Account. Manager shall
designate the signatories on such account. The signature of one (1) authorized
signatory of Manager will be sufficient to draw on such account. Manager's
authority to draw against the Operating Account may be terminated at any time
after this Agreement is terminated by written notice from Owner.
(a) Security Deposits. Manager shall deposit all cash security
deposits posted by Tenants in the Operating Account to be used as Manager
customarily uses Security Deposits. All funds so deposited in the Operating
Account shall be used in the same manner as other funds in the Operating
Account. Manager shall maintain detailed records of all security deposits
(whether cash or letter of credit) and such records will be open for inspection
by Owner, Owner's agents and employees or other persons authorized by Owner.
(b) Quarterly Reports. (i) Within forty-five (45) days after the
end of each calendar quarter, Manager shall prepare and deliver to Owner a
report as of the last day of the preceding quarterly period, setting forth
detailed statements of collections, disbursement, delinquencies, balances of the
Operating Account, accounts payable and other matters deemed material by Manager
relating to the Management Activities (all in accordance with the accrual basis
of accounting) for the preceding quarter. Such statements shall, upon Owner's
request, be accomplished by appropriate documentation of all expenditures made
by Manager under this Agreement. Such quarterly statements shall be accomplished
by Manager's written estimates of the amounts, if any by which any major
categories of the approved Operating Budget must be adjusted to fund adequately
the operation and maintenance of the Project for the then current quarter.
Manager shall also furnish Owner with such further information covering the
operating and maintenance of the Project as Owner may reasonably require.
(ii) a comparison (both on the current quarter and a
year-to-date basis) of actual operating results against the approved Operating
Budget together with explanations of detrimental variances of greater than ten
percent (10%) therefrom.
(c) Year-End and Final Reports. As soon as practicable after the
end of each Operating Year but in no event later than ninety (90) days after the
end of each Operating Year, and after the expiration or termination of this
Agreement, Manager shall prepare and deliver to Owner detailed statements
(prepared in accordance with the accrual basis of accounting) of all receipts,
expenses and charges pertaining to the operation and maintenance of the Project
during the preceding Operating Year.
(d) Remittances. Within ten (10) days after the end of each
calendar month, or at such other time as may be directed by Owner (but no more
often than once a month), Manager shall remit to Owner or to such other party or
parties as Owner may determine, all unexpended funds in the Operating Account to
the extent that the funds in the Operating Account exceed the amount reasonably
estimated by Manager as necessary to provide for working capital for the
operation, maintenance, repair, direction and supervision of the Project.
ARTICLE III.
LEASING
3.1. LEASING ACTIVITIES.
During the term of this Agreement, subject to the leasing
guidelines set forth on Exhibit 3.1 attached hereto (the "Leasing Guidelines"),
Manager shall have the exclusive right to procure and negotiate, on behalf of
Owner, Tenant leases for retail space for the Project and any reciprocal
easement agreements ("REAs") with respect to the Project. In accordance with the
Leasing Guidelines, Manager
7
shall lease space in the Project to Tenants and shall perform such other
services in connection with the efficient leasing of the Project as Owner may
from time to time reasonably direct. To the extent necessary to obtain Tenants
for the Project, Manager shall advertise the Project and conduct such
promotional activities as may be deemed appropriate by Manager, to the extent
that the costs therefor are either within a line item in the Operating Budget or
Manager elects to pay for the cost thereof. Manager shall, whenever appropriate
to facilitating the leasing program or at Owner's express request, actively
enlist the services of other licensed real estate brokers in connection with
leasing of space in the Project, and Manager shall act as coordinator of such
other broker in accordance with this Agreement, including the Leasing
Guidelines, and shall enter into co-broker agreements in Manager's discretion.
In addition to and notwithstanding the Leasing Guidelines, except as otherwise
required by any Project lender, leases of greater than ten thousand (10,000)
square feet of gross leaseable area shall not be entered into without the prior
written approval of Owner or in accordance with any requirement for lender
approval by any lender. No such leases shall violate (i) use exclusions
contained in existing leases or agreements with other Tenants, (ii) restrictive
or other covenants, conditions or restrictions contained in any deed to, or
other documents affecting, including, without limitation, reciprocal easement
agreements, the Project, or (iii) any legal requirements affecting the Project.
No lease for a portion of the Project shall fail to limit the liability of
Owner, any member of Owner, or the respective officers, employees,
representatives, directors, trustees or shareholders of Owner or any member of
Owner or otherwise impose personal liability upon any of the foregoing.
3.2. AUTHORITY. During the term of this Agreement, subject to
Section 3.1 hereof and the Leasing Guidelines, Manager shall be and is hereby
authorized to execute any Tenant lease, REAs or related documents on behalf of
Owner.
ARTICLE IV.
CONSTRUCTION MANAGEMENT
4.1. CONSTRUCTION SERVICES -TENANT AND OTHER IMPROVEMENTS. If requested
by Owner, Manager shall manage, coordinate and supervise design and construction
of capital improvements or other construction projects undertaken by Owner with
respect to the Project which are specified by Owner to Manager on a project by
project basis (including, without limitation, tenant improvements required to be
constructed by Owner for tenants pursuant to the provisions of any leases of the
Project).
4.2 SUPERVISION OF TENANTS' CONSTRUCTION. If a Tenant of the Project
constructs any tenant improvements using its own contractors (whether or not a
construction allowance or loan has been given to such Tenant by Owner), Manager
shall generally review the Tenant's proposed plans and construction schedule and
supervise, coordinate and inspect the Tenant's work on behalf of Owner to insure
that all such work is performed and completed in accordance with, (a) the terms
of the Tenant's lease (including, without limitation, those terms relating to
approval of all plans and specifications for such work by Owner and the
maintenance of all requisite insurance coverage by the Tenant and its
contractors), (b) other operating requirements and rules and regulations of the
Project, including, without limitation, insurance policies, ground leases,
mortgages, deeds of trust or other security instruments, REAs and other
agreements to which Owner is a party or by which Owner or the Project is bound,
and (c) in coordination with other ongoing construction and other activities at
the Project. As part of such supervision, Manager shall regularly consult and
meet with such Tenant and its architects and contractors and shall provide
information, as requested, that is relevant to the preparation of plans and
specifications by such architects. All plans and specifications for the Tenant's
work, and all changes thereto, must be approved by Owner. Manager shall promptly
review all plans and specifications for the Tenant's work, and all proposed
changes thereto, and shall provide Owner with Manager's recommendations
concerning the approval thereof. Manager shall implement and cause compliance
with such procedures for the performance of the work by Tenant's contractors as
are necessary to preserve and protect the Project and to minimize any
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disruption and interference caused by such work to other Tenants of the Project
and the public. Manager shall also review all requests by Tenants for advances
of Tenant construction allowances or loans by Owner and shall submit all such
requests to Owner, together with Manager's recommendation concerning their
payment. The above to the contrary notwithstanding, Manager shall not be charged
with detailed architectural or technical review of and revisions to the Tenant's
plans, including with regard to such matters as code compliance, adequacy or
quality of design or construction specifications and the like.
ARTICLE V.
INDEMNITIES
5.1. MANAGER'S INDEMNITY. Manager shall indemnify and save harmless
Owner, and all present, former and future partners (general or limited) of Owner
and all principals, members, partners, shareholders, officers, directors,
employees, agents, managers, representatives, affiliates and contractors of
Owner or of any member of Owner (collectively, the "Owner Indemnitees") from and
against all claims, liabilities, fines, suits, demands, costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements) of
any kind or nature whatsoever which are charged against, or suffered or incurred
by, the Owner Indemnitees arising from (a) any willful act, or omission or
negligence of Manager, its officers, agents, subcontractors, servants and/or
employees, (b) any accident, injury or damage occurring anywhere within or about
the Project (or any portion thereof), where such accident, injury or damage
results or is claimed to have resulted from any willful act, or omission or
negligence of Manager, its officers, agents, subcontractors, servants and/or
employees, and (c) any breach, violation or nonperformance of any
representation, warranty, covenant, condition or agreement contained in this
Agreement to be fulfilled, kept, observed or performed by Manager (the matters
described in the preceding clauses (a), (b) and (c) are hereinafter referred to
collectively as the "Indemnified Owner Matters"). Without limiting the operation
of the foregoing provisions of this Section 5.1, Manager agrees to reimburse the
Owner Indemnitees for, and to indemnify and save harmless the Owner Indemnitees
against, the payment of any monies which the Owner Indemnitees are required to
pay out in connection with or as an expense of any claim, or civil or criminal
action, proceeding, charge or prosecution, made, instituted or maintained
against the Owner Indemnitees, or the Owner Indemnitees and Manager jointly and
severally, due to, caused by or arising out of the Indemnified Owner Matters
(including, without limitation, expenses incurred in connection with the fees
and disbursements of attorneys hired to defend any such claim, action,
proceeding, charge or prosecution, or to enforce this indemnification
provision), and to fully indemnify and save harmless the Owner Indemnitees
against any judgment, loss or settlement on account of any of the foregoing.
5.2. OWNER'S INDEMNITY. Owner shall indemnify and save harmless
Manager, and all present, former and future principals, shareholders, officers,
directors, employees and affiliates of Manager (collectively, the "Manager
Indemnitees") from and against all claims, liabilities, fines, suits, demands,
costs and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) of any kind or nature whatsoever which are charged against,
or suffered or incurred by, the Manager Indemnitees arising from (i) the gross
negligence or willful misconduct of Owner, its officers, servants and/or
employees, and (ii) any breach, violation or nonperformance of any
representation, warranty, covenant, condition or agreement contained in this
Agreement to be fulfilled, kept, observed or performed by Owner (the matters
described in the preceding clauses (i) and (ii) are hereinafter referred to
collectively as the "Indemnified Manager Matters"). Without limiting the
operation of the foregoing, Owner agrees to reimburse the Manager Indemnitees
for, and to indemnify and save harmless the Manager Indemnitees against, the
payment of any monies which the Manager Indemnitees are required to pay out in
connection with or as an expense of any claim, or civil or criminal action,
proceeding, charge, prosecution, made, instituted or maintained against the
Manager Indemnitees, or the Manager Indemnitees and Owner jointly and severally,
due to, caused by or arising out of the Indemnified Manager Matters (including,
without limitation, expenses incurred in connection with the fees and
disbursements
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of attorneys hired to defend any such claim, action, proceeding, charge or
prosecution, or to enforce this indemnification provision), and to fully
indemnify and save harmless the Manager Indemnitees against any judgment, loss
or settlement on account of any of the foregoing.
5.3. THIRD PARTY INDEMNITIES. Manager shall use best efforts to cause
any contractor, subcontractor, vendor or other supplier hired to perform work at
the Project to indemnify and hold harmless the Owner Indemnitees and Manager
Indemnitees from and against any and all claims, liabilities, fines, suits,
demands, allegations, lawsuits, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) of any kind or
nature whatsoever which are charged against, or suffered or incurred by the
Owner Indemnitees or Manager Indemnitees arising out of work done by such
party, its employees or affiliates at the Project or the negligence or omissions
of such parties.
5.4. INDEMNITIES SURVIVE. The provisions of this Article V shall
survive the termination of this Agreement.
ARTICLE VI.
NO ASSIGNMENT
6.1. NO ASSIGNMENT BY MANAGER. Neither this Agreement nor any rights
hereunder shall be assignable by Manager, directly or indirectly, without
Owner's prior written consent, it being agreed that this Agreement is for
personal services and that but for the persons controlling Manager, Owner would
not enter into this Agreement. Notwithstanding the foregoing, Manager may assign
its interest in this Agreement to any corporation or other entity Controlling,
Controlled by, or under common Control with Manager, or to any entity into which
Manager or the affiliates of Manager may have merged or been acquired. For
purposes of this Agreement, "Control" (or any lexical variant thereof) shall
mean the ability, whether by the direct or indirect ownership of shares or other
equity interests, by contract or otherwise, to elect a majority of the directors
of a corporation, to select or become the managing partner of a partnership or
the managing member of a limited liability company or otherwise to select, or
have the power to remove and then select, a majority of those entities or
persons exercising governing authority over an entity or such other member of
persons or entities as are required in order to have the unfettered authority to
make all decisions with respect to such entity pursuant to its consistent
documents and voting or similar agreements.
ARTICLE VII.
LIENS
7.1. DISCHARGE OF LIENS. If at any time there shall be evidence of any
filed liens for which the Owner might become liable, Manager shall cause the
same to be discharged or bonded over within sixty (60) days after the filing of
same.
ARTICLE VIII.
SUBORDINATION
8.1. SUBORDINATION TO MORTGAGE. This Agreement and all fees due from
the Owner to Manager pursuant hereto shall be subject and subordinate in all
respects to any first mortgage lien encumbering the Project for the benefit of
any construction or permanent lender. This provision shall be self-executing but
Manager shall, upon request, execute such instrument as may reasonably be
requested by the Owner or such lender to evidence such subordination.
ARTICLE IX.
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FEES
9.1. MANAGEMENT FEE. Owner shall pay Manager a fee (the "Management
Fee") for Manager's services in connection with the Management Activities equal
to four percent (4%) of the "Gross Receipts" of the Project, payable monthly.
For purposes hereof, "Gross Receipts" shall mean fixed and percentage rent paid
under all Project Tenant leases plus expense reimbursement revenues plus all
other revenue derived from the Project except for the proceeds of sale,
financing, refinancing or casualty or condemnation.
9.2. LEASING FEES. (A) Owner shall pay Manager the following fees or
commissions in connection with Manager's leasing activities pursuant to Article
III hereof (collectively, the "Leasing Fee"):
(i) Five percent (5%) of the base or minimum rent for
the initial term of any new Tenant lease, and for the minimum
or base rent payable for any incremental expansion space of an
existing Tenant (for or the balance of the term following such
expansion);
(ii) If in such circumstances a commission is owed to
an outside broker in connection with any such lease, Manager
shall in no event receive less than a two percent (2%) fee
based on such rent regardless of the outside broker's share.
(iii) Two percent (2%) of minimum or base rent for
any renewal or extension term of any lease (except in the case
of exercise of an option contained in the original lease).
(iv) 8% of the sale price of an outlot or 8% of
ground lease rentals generated for the first ten years.
(b) In the event that a co-broker is involved in any of the
above referenced leasing transactions, in no event shall the Leasing Fees
payable to Manager be less than the amounts referenced above when a third party
broker is involved.
(c) Any Leasing Fee shall be paid as follows:
(i) for new leases, 50% upon execution of the lease,
and 50% upon such Tenant opening for business;
(ii) for renewal leases or extensions, at execution
of the renewal lease or extension; and
(iii) in the event of a sale under 9.2(a) (iv), upon
the closing of the sale.
9.3. CONSTRUCTION MANAGEMENT FEE. Owner shall pay Manager a fee (the
"Construction Management Fee") for Manager's services in connection with
construction management and coordination services provided under Sections 4.1
and 4.2 hereof equal to three (3) times the compensation (current and deferred),
excluding only contributions to and currently funded pension plans under Section
401(a) of the U.S. Tax Code, vacations, insurance and other fringe benefits, of
all personnel employed by Manager in performing such services for Owner. Such
compensation shall be calculated on a pro rata basis in the proportion that the
actual time spent by such employees in providing such services to the Project
bears to such employee's total work time, and shall in no event include any
reimbursement for general office
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overhead at Manager's home office.
9.4. EXPENSE REIMBURSEMENTS. After initial payment by Manager, Manager
may be reimbursed out of the Operating Account for the costs of the gross salary
and wages, payroll taxes, insurance, worker's compensation and other benefits
(to the extent such benefits were previously approved by Owner in writing) of
Manager's employees required to properly, adequately, safely and economically
manage, operate and maintain the Project, provided such amounts are included
within the parameters of the Operating Budget, and for reasonable travel,
telephone and similar expenses. Any amounts paid by Manager to or on behalf of
its employees as provided above shall be accounted for by Manager in accordance
with the provisions of this Agreement.
ARTICLE X.
TERMINATION
10.1. TERMINATION. Owner may not terminate this Agreement unless one
of the following events has occurred and (other than with respect to (b) below)
is continuing at the time such notice is given:
(a) A default by Manager in the performance of any of its
obligations under this Agreement and, as applicable, (i) the failure of Manager
to cure such default within thirty (30) days after written notice is given by
the Owner to Manager specifying the nature of such default, or (ii) if the
default in question is curable but is of such a nature that it cannot reasonably
be completely cured within such thirty (30) day period, the failure of Manager
to commence the curing of such default promptly after receiving such notice from
the Owner and Manager's failure thereafter to proceed with diligence to complete
the curing thereof, as soon as is reasonably practical.
(b) The sale of the Project.
(c) A change in Control of Owner. For the purpose of this Section
10.1 (c), "Control" means that Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P. ("Ramco") or
any affiliate or transferee thereof no longer has the power acting alone or in
concert with West Acres Realty LLC or any affiliate or transferee thereof, to
designate and direct or cause the designation and direction of the management
and policies of Owner, whether through the ownership of voting securities, by
contract or otherwise; or if none of the current persons with such powers to
direct or cause the designation and direction of the management and policies of
Ramco's general partner any longer has such powers.
(d) If Manager should be adjudged to be bankrupt or should make a
general assignment for the benefit of its creditors, or if a petition for
arrangement with creditors or for reorganization shall be filed, whether
voluntarily or involuntarily, by or against Manager, or if a receiver should be
appointed on account of such entity's insolvency, unless in the case of a
bankruptcy, this Agreement shall be approved by the appropriate court within
thirty (30) days of the date Manager shall be adjudged a bankrupt.
ARTICLE XI.
EXCULPATION
11.1. OWNER'S EXCULPATION. Anything in this Agreement to the contrary
notwithstanding, Manager accepts and agrees that each of the covenants,
undertakings and agreements herein made on the part of the Owner, while in the
form purporting to be covenants, undertakings and agreements of the Owner, are,
nevertheless, made and intended not as personal covenants, undertakings and
agreements but are made and intended for the purpose of binding only the Owner's
interest in the Project and
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Improvement and that no personal liability and personal responsibility shall
accrue to Owner hereunder, such personal liability and personal responsibility,
if any, being expressly waived and released by Manager.
Manager further agrees not to seek or enforce any judgments (including
but not limited to deficiency judgments, and any and all other judgments)
obtained against the Owner beyond the interests of the Owner in the Project.
ARTICLE XII.
MISCELLANEOUS
12.1. NOTICES. All notices, demands or consents provided for in this
Agreement shall be in writing and shall be given to the parties at the address
set forth below or at such other address as they may specify thereafter in
writing
OWNER: Ramco/West Acres LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
MANAGER: Ramco-▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
12.2. CAPTIONS AND HEADINGS. The captions, subheadings and margin
notes are for convenience only and are not to be construed to modify or limit
the terms, provisions or conditions hereof.
12.3. ENTIRE AGREEMENT. This Agreement constitutes the entire contract
between the parties. No provisions of this Agreement shall be changed or
modified, nor shall this Agreement be discharged, in whole or in part, except by
an Agreement in writing signed by the party against whom the change,
modification or discharge is claimed or sought to be enforced.
12.4. WAIVER. No waiver of any of the conditions or provisions of this
Agreement or of any of the rights of either party hereunder shall be effective
or binding unless such waiver shall be in writing and signed by the party
claimed to have given, consented to or suffered the waiver.
12.5. APPLICABLE LAW. This Agreement shall be governed by the laws
of the State of Michigan.
12.6. SEVERABILITY. If any clauses or provisions of this Agreement
is illegal, invalid or unenforceable under present or future laws effective
during the term hereof, then the remainder of this Agreement shall not be
affected thereby, and in lieu of each clause or provision of this Agreement
which is illegal, invalid or unenforceable, there shall be added, as part of
this Agreement, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and as may be
legal, valid and enforceable.
12.7. BINDING EFFECT. All of the provisions of this Agreement shall be
binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns becoming such in accordance with the terms hereof.
12.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. The English language version of
this Agreement shall prevail over any translation thereof.
12.9. NO JOINT VENTURE. This Agreement is not intended to, and shall
not, create a partnership or joint venture among the parties, and no party to
this Agreement shall have the power or authority to bind any other party except
as explicitly provided in this Agreement.
12.10. CONFIDENTIALITY. Manager agrees to keep confidential any
non-public information regarding the Project that it acquires, discovers or
learns during the term of this Agreement in its capacity as the manager of the
Project and shall not disclose or publicize the same without the prior written
consent of Owner, except that Manager may disclose such matters (i) as may be
required or prudent in connection with the performance of its duties authorized
under this Agreement and/or (ii) to the extent required by applicable law or
court order.
12.11. COOPERATION. In the event of a sale, assignment, mortgage or
other transfer of all or a portion of the Project, or any interest therein
including any interest in Owner, directly or indirectly, Manager shall, upon
reasonable notice (i) make available to the prospective transferee, during
reasonable business hours, all records in its possession; and (ii) cause the
managing personnel involved directly or indirectly in the affairs of the Project
to cooperate with Owner. Manager, at the request of Owner, shall enter into
agreements with the lenders providing financing to Owner encumbering all or any
part of the Project, pursuant to which agreements Manager will (a) recognize the
collateral rights, if any, of such lenders with respect to this Agreement, and
(b) acknowledge that if any such lender forecloses upon the Project, such lender
or its assignee shall not be liable for any act or omission of Owner under this
Agreement prior to the date of such foreclosure or assignment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
OWNER:
By
----------------------------------
MANAGER:
By:
---------------------------------
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EXHIBIT 3.1
Leasing Guidelines
(1) In addition to any other approvals required by these Leasing Guidelines
or the Agreement, written approval of Owner is required for any lease,
renewal or extension of a lease which:
(A) contains any rights of first refusal or expansion rights on
additional rentable space at the inline site portion of the
Project; or
(B) requires any material modification to the inline site portion
of the site plan for the Project; or
(C) provides for the reduction in annual base or minimum rent for
such lease which is more than five percent (5%) less than the
pro forma for such tenant's space.
As used herein, "Annual Rent" shall mean the annual minimum rental, together
with any percentage rent, common area maintenance charges, insurance costs and
real estate taxes, which is payable by a tenant under a lease or set forth and
approved in the Operating Budget. In determining whether a proposed lease is
within these Leasing Guidelines, the annual rent set forth in the lease proposal
shall be compared to the annual rent for the space set forth in the Operating
Budget.
No approval shall be required for any lease of under 10,000 square feet which is
within the parameters set forth in the Operating Budget and is for an initial
term of less than ten (10) years. All proposed leases and other information
deemed relevant in respect of a proposed tenancy requiring approval hereunder
shall be sent to Owner and to any lender requiring same at the same time. The
failure of any of Owner or any required lender to approve or reject (to be
exercised in such party's reasonable discretion) in writing any proposed lease,
renewal or extension of a lease or proposed tenant improvement described above
within ten (10) days of Owner's delivery of the proposal containing all material
terms of such lease, including, without limitation, the term (including any
renewal or termination options), rent, tenant improvement allowance and/or any
concessions given to the proposed tenant in connection with such proposed lease,
the square footage and exact location of the premises to be leased, and any
financial information and general information regarding the financial strength
and general reputation of the proposed tenant (the foregoing being hereafter
referred to as the "Lease Proposal") and shall be deemed an approval of such
proposed lease, renewal or extension or such proposed tenant improvements.
(2) Manager shall make the Project as a first-class shopping center with
the tenant mix customary for a shopping center of the quality of the
Project. Under no circumstances will Manager permit leases with tenants
in violation of and reciprocal easement agreement affecting the
Project.
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