FORM OF LIMITED LIABILITY COMPANY AGREEMENT OF
FORM
OF
OF
▇▇▇▇
▇▇▇▇▇▇▇▇ MEZZ II LLC
THIS
LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”)
of
▇▇▇▇
▇▇▇▇▇▇▇▇ MEZZ II LLC
(the
“Company”),
is
entered into by Lightstone 1407 Manager LLC, a Delaware limited liability
company, as the managing member (the “Managing
Member”),
and
LVP ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a Delaware limited liability company (”LVP”;
together with the Managing Member, collectively, the “Members”
and
individually, a “Member”),
and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the Special Member (as defined on Schedule
A
hereto).
LVP shall sometimes hereinafter also be referred to as the “Non-Managing
Member”.
Capitalized terms used and not otherwise defined herein have the meanings set
forth on Schedule
A
hereto.
RECITALS
WHEREAS,
the Company was formed on November 28, 2006 as
a
limited liability company under the Delaware Limited Liability Company Act,
as
amended from time to time (the “Act”); and
WHEREAS,
the Members desire to state the terms and conditions of the
Company.
NOW
THEREFORE, in consideration of the premises and the agreements herein contained,
the Members and the Special Member hereby agree as follows:
Section
1. Name.
The
name
of the limited liability company formed hereby is 1407 BROADWAY MEZZ II
LLC.
Section
2. Principal
Business Office.
The
principal business office of the Company shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location as may hereafter be determined by
the
Member.
Section
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is
c/o
Registered Agents Legal Services, LLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section
4. Registered
Agent.
The
name
and address of the registered agent of the Company for service of process on
the
Company in the State of Delaware York is c/o Registered Agents Legal Services,
LLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section
5. Members.
The
mailing address of each Member is set forth on Schedule
B
attached
hereto. The Members were admitted to the Company as members of the Company
upon
their execution of counterpart signature pages to this Agreement.
Subject
to Section
9(d),
the
Members may act by written consent.
Upon
the
occurrence of any event that causes the last
remaining Member
to
cease to be a member of the Company (other than (i) upon an assignment by the
last remaining Member of all of its limited liability company interest in the
Company and the admission of the transferee pursuant to Sections
21 and 23,
or (ii)
the resignation of the last remaining Member and the admission of an additional
member of the Company pursuant to Sections
22 and 23),
the
person acting as an Independent Manager pursuant to Section
10
shall,
without any action of any Person and simultaneously with the last remaining
Member ceasing to be a member of the Company, automatically be admitted to
the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as Special
Member unless (i) a successor Special Member has been admitted to the Company
as
Special Member by executing a counterpart to this Agreement, and (ii) such
successor has also accepted its appointment as Independent Manager pursuant
to
Section
10;
provided, however, each Special Member shall automatically cease to be a member
of the Company upon the admission to the Company of a substitute Member. Each
Special Member shall be a member of the Company that has no interest in the
profits, losses and capital of the Company and has no right to receive any
distributions of Company assets. Pursuant to Section 18-301 of the Act, a
Special Member shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind
the
Company. Except as required by any mandatory provision of the Act, each Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Manager pursuant to
Section
10
shall
execute a counterpart to this Agreement. Prior to its admission to the Company
as Special Member, the person acting as an Independent Manager pursuant to
Section
10
shall
not be a member of the Company.
Section
6. Certificates.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ is hereby designated as an “authorized person” within the meaning of
the Act, and executed, delivered and filed the Certificate of Formation of
the
Company with the Secretary of State of the State of Delaware, and such
execution, delivery and filing is hereby approved and ratified. Upon the filing
of the Certificate of Formation with the Delaware Secretary of State, her powers
as an “authorized person” ceased, and the Managing Member thereupon became the
designated “authorized person” and shall continue as the designated “authorized
person” within the meaning of the Act. The Managing Member or an Officer shall
execute, deliver and file any other certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in
any
jurisdiction in which the Company may wish to conduct business.
2
The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the
Act.
Section
7. Purposes.
The
purpose conducted or promoted by the Company has been since its formation and
will continue to be to engage in the following activities:
(a)
(i) to
acquire
and own hold, sell, transfer or otherwise dispose of a 100% limited liability
company interest (the “Membership
Interest”)
in,
and to be and act as the sole member of, ▇▇▇▇ ▇▇▇▇▇▇▇▇ Mezz LLC, a Delaware
limited liability company (“Mezz
LLC”),
to
cause Mezz LLC to acquire and own, hold, sell, transfer or otherwise dispose
of
a 100% limited liability company interest in, and to be and act as the sole
member of, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LLC, a Delaware limited liability company
(“Property
Owner”),
and
to cause Property Owner to acquire, improve, finance, hold, own, operate, rent,
redevelop, sell, mortgage, exchange, convey, or otherwise dispose of the
Property, and to engage, and to cause the Subsidiaries to engage, in all actions
necessary and appropriate to accomplish the foregoing;
(ii) to
pledge
its Membership Interest in Mezz LLC to ▇▇▇▇▇▇ Brothers Holdings Inc.
(“▇▇▇▇▇▇”),
in
connection with the Mezzanine Loan made by ▇▇▇▇▇▇ to Mezz LLC, and to execute
and deliver any documents and certificates or engage in any actions necessary
or
desirable in connection therewith on behalf of itself and Mezz LLC;
and
(iii) to
engage
in any lawful act or activity and to exercise any powers permitted to limited
liability companies organized under the laws of the State of Delaware that
are
related or incidental to and necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
(b) The
Company, by or through the Managing Member, or any Officer on behalf of the
Company, may enter into and perform the Basic Documents, and without any further
act, vote or approval of any other Person notwithstanding any other provision
of
this Agreement, the Act or applicable law, rule or regulation. The foregoing
authorization shall not be deemed a restriction on the powers of the Managing
Member or any Officer to enter into other agreements on behalf of the
Company.
Section
8. Powers.
Subject
to Section
9(d),
the
Company, the Managing Member and the Officers of the Company on behalf of the
Company, (i) shall have and exercise all powers necessary, convenient or
incidental to accomplish its purposes as set forth in Section
7
and (ii)
shall have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
3
Section
9. Management.
(a) Subject
to Sections
9(d) and 9(e),
the
business and affairs of the Company shall be managed by or under the direction
of the Managing Member. Subject to Section
10,
the
Managing Member may determine at any time in its sole and absolute discretion
the number of Independent Managers. The initial number of Independent Managers
shall be one. The initial Independent Manager designated by the Managing Member
is ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
(b) Powers.
Subject
to Sections
9(d) and 9(e),
the
Managing Member shall have the power to do any and all acts necessary,
convenient or incidental to or for the furtherance of the purposes described
herein, including all powers, statutory or otherwise. Subject to Sections
7 and 9,
the
Managing Member has the authority to bind the Company. Notwithstanding the
foregoing, the parties expressly acknowledge that the
adoption, modification or revocation of a Major Decision requires the Approval
of the Non-Managing Member. If the Managing Member proposes to adopt, modify
or
revoke a Major Decision, it shall deliver notice to the Non-Managing Member
describing the proposal, which notice shall contain a sentence in bold type
stating that if the Non-Managing Member fails to respond to the Managing Member
within ten (10) business days after notice of such proposal, then such proposal
shall be deemed to have been Approved. If the Non-Managing Member fails to
respond to the Managing Member within ten (10) business days after notice of
such proposal, then such proposal shall be deemed to have been
Approved.
(c) Managing
Member as Agent.
To the
extent of its powers set forth in this Agreement and subject to Section
9(d),
the
Managing Member is an agent of the Company for the purpose of the Company's
business, and the actions of the Managing Member taken in accordance with such
powers set forth in this Agreement shall bind the Company.
(d) Limitations
on the Company's Activities.
(i) This
Section
9(d)
is being
adopted in order to comply with certain provisions of the Loan Documents
required in order to qualify the Company as a “special purpose”
entity.
(ii) The
Managing Member shall not, so long as any Obligation is outstanding, amend,
alter, change or repeal Sections
5,
7,
8,
9,
10,
16,
20,
21,
22,
23,
24,
25,
26
or
31
or
Schedule
A
of this
Agreement without the unanimous written consent of the Members and the
Independent Manager, and, after securitization of the Loan, only if the Company
receives confirmation that the Rating Agency Condition is satisfied. Subject
to
this Section
9(d),
the
Managing Member reserves the right to amend, alter, change or repeal any
provisions contained in this Agreement in accordance with Section
31.
(iii) A.
Notwithstanding
any other provision of this Agreement and any provision of law that otherwise
so
empowers the Company, the Managing Member, any Officer or any other Person,
neither the Managing Member nor any Officer nor any other Person shall be
authorized or empowered, nor shall they permit the Company to, and the Company
shall not, with respect to itself, without the prior unanimous written vote
of
the Members and the Independent Manager take any Bankruptcy Action provided,
however,
that
the Members may not vote on, or authorize the taking of, any Bankruptcy Action,
unless there is at least one Independent Manager then serving in such
capacity.
4
B. Notwithstanding
any other provision of this Agreement and any provision of law that otherwise
so
empowers the Company, the Managing Member, any Officer or any other Person,
so
long as any Obligations remain outstanding, neither the Managing Member nor
any
Officer nor any other Person shall be authorized or empowered, nor shall they
permit the Company, to take any Material Action without the consent of Lender
(which consent will not be withheld if such Material Action would result in
proceeds which would indefeasibly satisfy the Obligations in full in accordance
with the Basic Documents).
(iv) The
Managing Member shall cause the Company to do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however,
that
the Company shall not be required to preserve any such right or franchise if:
(1) the Managing Member shall determine that the preservation thereof is no
longer desirable for the conduct of its business and that the loss thereof
is
not disadvantageous in any material respect to the Company and (2) the
Rating Agency Condition is satisfied. The Managing Member has not caused or
permitted the Company since its formation to and shall not cause or permit
the
Company to, and the Company shall not:
A. engage
in
any business or activity other than as provided in Section 7 above;
B. acquire
or own any assets other than as provided in Section 7 above;
C. to
the
fullest extent permitted by law, merge into or consolidate with any Person
or
dissolve, wind-up, terminate or liquidate in whole or in part, sell, transfer
or
otherwise dispose of all or substantially all of its assets or change its legal
structure, transfer or permit the direct or indirect transfer of any interest,
as applicable, other than as permitted in the Loan Documents or seek to
accomplish any of the foregoing;
D. fail
to
preserve its existence as a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware, fail
to
remain qualified to do business and in good standing in each state in which
the
conduct of its business will so require, amend, modify, terminate or fail to
comply with the single purpose entity provisions contained herein;
5
E. own
any
subsidiary, other than Mezz LLC, or make any investment in, any Person without
the consent of Lender or acquire obligations or securities of its members (other
than the Membership Interests);
F.
commingle
its assets with the assets of any other Person;
G. incur
any
debt, secured or unsecured, direct or contingent (including guaranteeing any
obligation), other than customary unsecured trade payables incurred in the
ordinary course of business provided the same (x) do not exceed, in the
aggregate, at any time a maximum amount of two percent (2%) of the outstanding
principal amount of the Note evidencing the Loan, and (y) are paid within sixty
(60) days of the date incurred;
H. fail
to
maintain its records, books of account, bank accounts, financial statements,
accounting records and other entity documents separate and apart from those
of
any other Person and the Company shall not permit any affiliate independent
access to its bank accounts;
I. enter
into any contract or agreement with any general partner, member, shareholder,
principal or affiliate of the Company, Guarantor or Indemnitor, or any general
partner, member, principal or affiliate thereof, except upon terms and
conditions that are intrinsically fair and substantially similar to those that
would be available on an arms-length basis with third parties other than any
general partner, member, shareholder, principal or affiliate of the Company,
Guarantor or Indemnitor, or any general partner, member, principal or affiliate
thereof;
J. maintain
its assets in such a manner that it will be costly or difficult to segregate,
ascertain or identify its individual assets from those of any other
Person;
K. assume
or
guaranty the debts of any other Person, hold itself out to be responsible for
the debts of another person or otherwise pledge its assets for the benefit
of
any other Person or hold out its credit as being available to satisfy the
obligations of any other Person except to the extent provided in the Loan
Documents;
L. make
any
loans or advances to any third party, including, without limitation, any member
or affiliate of the Company, or any general partner, member, principal or
affiliate thereof;
M. (i)
if
required by applicable law, fail to file its own tax returns (subject to any
permitted extensions), or (ii) if the Company is part of a consolidated group
for purposes of filing tax returns, fail to cause the Company to be shown as
a
separate member of such group whose assets are not available to satisfy the
obligations of such group and whose liabilities remain separate from such group,
or (iii) if the Company is identified in any of its member’s tax returns, fail
to cause the Company to be identified as a separate entity whose assets are
not
available to satisfy the obligations of any such members and whose liabilities
remain separate from such members;
6
N. fail
either to hold itself out to the public as a legal entity separate and distinct
from any other entity or person or to conduct its business solely in its own
name or fail to correct any known misunderstanding regarding its separate
identity and the Company shall not identify itself as being a department or
division of any other Person;
O. fail
to
maintain adequate capital for the normal obligations reasonably foreseeable
in a
business of its size and character and in light of its contemplated business
operations;
P. fail
to
pay its expenses and liabilities (including, without limitation, salaries of
its
employees) only out of its own funds to the extent such funds are available
and
the Company shall maintain a sufficient number of employees in light of its
contemplated business operations;
Q. fail
to
allocate shared expenses (including, without limitation, shared office space)
and use separate stationary, invoices and checks; or
R. acquire
any business assets from, or capital stock, or other ownership interest of,
or
be a party to, any acquisition.
Failure
of the Company, or the Managing Member on behalf of the Company, to comply
with
any of the foregoing covenants or any other covenants contained in this
Agreement shall not affect the status of the Company as a separate legal entity
or the limited liability of the Managing Member or the Independent Manager.
In
addition, none of the foregoing provisions shall require the Managing Member
to
make any additional capital contributions to the Company.
(v) So
long
as any Obligation is outstanding, the Managing Member shall not cause or permit
the Company to and the Company shall not:
A. except
as
contemplated by the Loan Documents, guarantee any obligation of any Person,
including any Affiliate or become obligated for the debts of any Person or
hold
out its credit as being available to pay the obligations of any other
Person;
7
B. engage,
directly or indirectly, in any business other than the actions required or
permitted to be performed under Section 7,
the
Basic Documents or this Section
9(d);
C. incur,
create or assume any indebtedness or liabilities other than as expressly
permitted under the Loan Documents;
D. make
or
permit to remain outstanding any loan or advance to, or own or acquire any
stock
or securities of, any Person;
E. to
the
fullest extent permitted by law, engage in, seek or consent to any dissolution,
winding up, liquidation, consolidation, merger, asset sale or transfer of
ownership interests other than such activities as are expressly permitted
pursuant to any provision of the Basic Documents; or
F. other
than with respect to Mezz LLC, form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or other) or own any equity
interest in any Person,.
(e) Major
Decisions.
Notwithstanding any other provisions of this Agreement, the Company and/or
the
Managing Member may not, without the approval of the Non-Managing Member of
the
Company take any of the following actions or cause Mezz LLC or Property Owner
to
take any of the following actions (each, a “Major
Decision”):
(i) borrow
money (whether on a secured or unsecured basis, and whether senior, on par
or
subordinate to the Loans, but excluding trade debt or amend the terms and
conditions of any financing of the Company or any of its Subsidiaries, including
the Loans, in any material respect or make elections with respect to interest
periods, interest rates or other material provisions under any such
financing;
(ii) lend
money (whether on a secured or unsecured basis, but excluding trade
debt);
(iii) grant
any
mortgage, security interest or any other lien on any Property or any other
assets of the Company or any of its Subsidiaries;;
(iv) subject
all or any part of any Property to a condominium statute or convert any Property
to condominium or cooperative form of ownership;
(v) except
as
otherwise provided herein, sell all or any portion of any Property;
(vi) seek
or
consent to any change in the zoning or other land use regulations affecting
any
Property or any permits or approvals granted thereunder if such change will
materially adversely affect the value of the Property or the rights, interests
or obligations of the parties under this Agreement;
8
(vii) rebuild
or reconstruct the improvements on the Property if they are substantially
damaged by a fire or other casualty, except to the extent the Company or any
of
its Subsidiaries is required to do so pursuant to the Loan Documents or except
to the extent that the cost to rebuild or reconstruct the improvements is less
than $1,000,000;
(viii) acquire
any real property (other than the Property), any direct or indirect interest
in
real property, or any interest in any Person other than the
Subsidiaries;
(ix) adopt
the
annual operating budget of the Company and its Subsidiaries, which must be
submitted to the Non-Managing Member for its Approval by November 30 of the
preceding year (each such annual budget, as Approved, an “Approved
Budget”);
(x) incur
any
single capital expenditure in excess of $50,000, other than capital expenditures
which are (i) set forth in an Approved Budget, or (ii) otherwise specifically
Approved by the Non-Managing Member;
(xi) assign,
transfer, pledge, compromise or release any of the claims of or debts or
insurance or condemnation proceeds due the Company exceeding $50,000 except
in
connection with the receipt by the Company of payment in full of such claims
or
debts;
(xii) enter
into any lease for a portion of the Property in excess of 25,000 square
feet;
(xiii) change
the Company’s or any Subsidiaries’ accounting method, either for financial or
tax reporting purposes or otherwise;
(xiv) dissolve
the Company or any Subsidiary;
(xv) effect
any merger, consolidation or restructuring of the Company or any Subsidiary;
(xvi) purchase
or redeem all or any portion of the limited liability company interest of any
Member in the Company, except as provided herein with respect to permitted
transfers;
(xvii) form,
directly or indirectly, any subsidiary other than the Subsidiaries;
(xviii) other
than in connection with the Loans, sell, assign, transfer, pledge, hypothecate
or otherwise dispose of or encumber all or any portion of any of the Company’s
interest in any Subsidiary or permit any Subsidiary to sell, assign, transfer,
pledge, hypothecate or otherwise dispose of or encumber all or any portion
of
its assets or cause or permit any additional equity interests to be issued
by or
new members to be admitted to any Subsidiary;
9
(xix) amend
or
otherwise modify any of the organizational documents of the Company or any
Subsidiary in any material respect or take any action which would result in
the
Company not being able to manage or exercise control over any Subsidiary;
(xx) enter
into or conduct any business or operations other than in connection with the
business of the Company as contemplated by Section 7 hereof or otherwise herein,
or take any action which would cause the Company or any Subsidiary to cease
being a “special purpose” entity as provided in Section 9(d) above;
(xxi) employ
any Member or any Affiliate of any Member on behalf of the Company or any
Subsidiary or otherwise deal with the Company or any Subsidiary (whether as
a
buyer, seller, lessor, lessee, manager, broker, agent, furnisher of services,
lender or otherwise) and pay to or receive from the Company, its Subsidiaries,
any Member and any of their Affiliates any compensation, price, fee, commission
or other payment therefore, except as contemplated by this Agreement or as
set
forth on Schedule
D
hereto;
(xxii) employ
any accountants for the Company or any attorneys for the Company (except that
the Members specifically approve ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP and Cozen ▇’▇▇▇▇▇▇ being
retained as attorneys for the Company and Amper, Politziner, ▇▇▇▇▇▇ and/or
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group being retained as accountants for the
Company);
(xxiii) settle
any casualty loss (except to the extent fully covered by insurance less any
deductible) or condemnation claim in excess of $250,000;
(xxiv) settle
any material litigation or threatened litigation, including without limitation
that certain litigation regarding the sub-leasehold interest in the
Property;
(xxv) enter
into any material contract or amendment;
(xxvi) issue
additional equity interests in itself or any Subsidiary; and
(xxvii) take
any
other actions which, pursuant to the terms of this Agreement, require Approval
of all of the Members.
(f) Deadlock
Regarding Significant Decisions; Buy/Sell Option.
In the
event there is not a unanimous vote of the Members with respect to any Major
Decision or Bankruptcy Action (a "Deadlock"),
whether at a meeting of the Members or by an action by written consent in
accordance with this Section 9 of this Agreement, then within two (2) business
days after such vote (or such consent is requested by a Member) each Member
shall provide to the other Member a written notice describing in reasonable
detail the reason for its position with respect to the Major Decision or
Bankruptcy Action at issue. The Members shall then enter into good faith
negotiations to amicably resolve such Deadlock and continue such negotiations
for a period of at least five (5) business days (such period being the
"Cooling-Off
Period").
If a
Deadlock is not resolved during the Cooling-Off Period, then commencing on
the
business day following the date that the Cooling-Off Period shall have
terminated (the "Termination
Date"),
each
of the Members shall have the following rights:
10
(i) either
Member (the "Initiating
Member")
shall
be entitled to deliver a written notice (the "Offer
Notice")
to the
other (the "Deciding
Member")
specifying in such notice that the Initiating Member offers to purchase all,
but
not less than all, of the limited liability company interest in the Company
of
the Deciding Member upon the terms and conditions specified in reasonable detail
in the Offer Notice; and
(ii) upon
receipt of an Offer Notice, the Deciding Member shall have three (3) business
days to deliver a written notice (the "Response
Notice")
to the
Initiating Member specifying in the Response Notice either that:
A. the
Deciding Member has elected to sell all of its limited liability company
interest in the Company to the Initiating Member at the price and upon the
terms
and conditions specified in the Offer Notice, in which case, the Initiating
Member shall purchase, and the Deciding Member shall sell, all of the Deciding
Member's limited liability company interest in the Company at the price and
upon
the terms and conditions specified in the Offer Notice; or
B. the
Deciding Member has elected to purchase all of the Initiating Member's limited
liability company interest in the Company at the Offer Price (as defined below)
and upon the terms and conditions specified in the Offer Notice, in which case
the Deciding Member shall purchase, and the Initiating Member shall sell, all
of
the Initiating Member's limited liability company interest in the Company at
the
Offer Price and upon the terms and conditions specified in the Offer
Notice.
(iii) An
Offer
Notice shall only be valid if delivered on or after the Termination Date, and
any Offer Notice delivered prior to such time shall be deemed null and void
and
have no force or effect. Each Member agrees that if an Offer Notice is not
sent
within five (5) business days following the Termination Date, then the Deadlock
shall be deemed to have been amicably resolved and the proposed action that
is
the subject of the Deadlock shall be deemed to have been adopted by the
Members.
(iv) Upon
delivery of an Offer Notice to either Member, then the Deciding Member shall
not
be permitted to deliver a subsequent Offer Notice and any such subsequent Offer
Notice shall be deemed null and void and have no force or effect; provided,
however,
that in
the event that each Member shall have delivered to the other an Offer Notice
on
the same day (without regard to the time of day such Offer Notice is received)
then, in such event, the Offer Notice which contains the lowest purchase price
for the other's limited liability company interest in the Company shall be
deemed null and void and have no force or effect.
(v) Notwithstanding
any provision contained herein to the contrary, in the event that the Deciding
Member has not delivered a Response Notice within the three (3) business day
period provided for in Section 9(f)(ii) above, then for purposes of this
Agreement the Deciding Member shall be deemed to have made the election
specified in Section 9(f)(ii)(A) above and thereafter the Deciding Member shall
sell all of its limited liability company interest in the Company to the
Initiating Member at the price and upon the terms and conditions specified
in
the Offer Notice.
11
(vi) The
Members agree that irreparable damage would occur in the event any of the
provisions of this Section 9(f) were not performed in accordance with the terms
hereof and that the Members shall be entitled to specific performance of the
terms and provisions of this Section 9(f), in addition to any other remedy
at
law or equity. The Members further agree that time is of the essence with
respect to any time periods set forth in this Section 9(f).
(vii) For
purposes of this Section 9(f), the "Offer
Price"
means
the product obtained when multiplying (i) the quotient obtained when dividing
(x) the dollar amount of the price offered by the Initiating Member in the
Offer
Notice by (y) the Percentage of limited liability company interest in the
Company of the Deciding Member multiplied by 100, and (ii) the Percentage of
limited liability company interest in the Company of the Initiating Member
multiplied by 100.
Section
10. Independent
Manager.
As
long
as any Obligation is outstanding, the Managing Member shall cause the Company
at
all times to have at least one Independent Manager who will be appointed by
the
Managing Member. To the fullest extent permitted by law, including Section
18-1101(c) of the Act, the Independent Manager shall consider only the interests
of the Company, including its respective creditors, in acting or otherwise
voting on the matters referred to in Section
9(d)(iii).
No
resignation or removal of an Independent Manager, and no appointment of a
successor Independent Manager, shall be effective until such successor shall
have executed a counterpart to this Agreement. In the event of a vacancy in
the
position of Independent Manager, the Managing Member shall, as soon as
practicable, appoint a successor Independent Manager. All right, power and
authority of the Independent Manager shall be limited to the extent necessary
to
exercise those rights and perform those duties specifically set forth in this
Agreement and the Independent Manager shall have no authority to bind the
Company. Except as provided in the second sentence of this Section
10,
in
exercising their rights and performing their duties under this Agreement, any
Independent Manager shall have a fiduciary duty of loyalty and care similar
to
that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Manager shall at any
time serve as trustee in bankruptcy for any Affiliate of the
Company.
Section
11. Officers.
(a) Officers.
The
initial Officers of the Company shall be designated by the Managing Member
and
shall consist of at least a President and a Secretary. The Managing Member
may
also choose one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person. The Managing
Member may appoint such other Officers and agents as it shall deem necessary
or
advisable who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by
the
Managing Member. The salaries of all Officers and agents of the Company shall
be
fixed by or in the manner prescribed by the Managing Member. The Officers of
the
Company shall hold office until their successors are chosen and qualified.
Any
Officer may be removed at any time, with or without cause, by the affirmative
vote of the Managing Member. Any vacancy occurring in any office of the Company
shall be filled by the Managing Member. The initial Officers of the Company
designated by the Managing Member are listed on Schedule
E
hereto.
12
(b) President.
The
President shall be the chief executive officer of the Company, shall be
responsible for the general and active management of the business of the Company
and shall see that all orders and resolutions of the Company are carried into
effect. The President or any other Officer authorized by the President or the
Managing Member shall execute all bonds, mortgages and other contracts, except:
(i) where required or permitted by law or this Agreement to be otherwise signed
and executed, including Section
7(b)
(ii)
where signing and execution thereof shall be expressly delegated by the Managing
Member to some other Officer or agent of the Company, and (iii) as otherwise
permitted in Section
11(c).
(c) Vice
President.
In the
absence of the President or in the event of the President's inability to act,
the Vice President, if any (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Managing Member,
or in the absence of any designation, then in the order of their election),
shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. The
Vice Presidents, if any, shall perform such other duties and have such other
powers as the Managing Member may from time to time prescribe.
(d) Secretary
and Assistant Secretary.
The
Secretary shall be responsible for filing legal documents and maintaining
records for the Company. The Secretary shall attend all meetings of the Company
and record all the proceedings of the meetings of the Company in a book to
be
kept for that purpose and shall perform like duties for the standing committees
when required. The Secretary shall give, or shall cause to be given, notice
of
all meetings of the Member, if any, and shall perform such other duties as
may
be prescribed by the President, under whose supervision the Secretary shall
serve. The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Managing Member (or if there be
no
such determination, then in order of their election), shall, in the absence
of
the Secretary or in the event of the Secretary's inability to act, perform
the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Managing Member may from time to time
prescribe
(e) Officers
as Agents.
The
Officers, to the extent of their powers set forth in this Agreement or otherwise
vested in them by action of the Managing Member not inconsistent with this
Agreement, are agents of the Company for the purpose of the Company's business
and, subject to Section
9(d),
the
actions of the Officers taken in accordance with such powers shall bind the
Company.
(f) Duties
of Officers.
Except
to the extent otherwise provided herein, each Independent Manager and Officer
shall have a fiduciary duty of loyalty and care similar to that of directors
and
officers of business corporations organized under the General Corporation Law
of
the State of Delaware.
Section
12. Limited
Liability.
13
Except
as
otherwise expressly provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be the
debts, obligations and liabilities solely of the Company, and neither the
Members nor the Special Member nor the Independent Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely
by
reason of being a Member, Special Member or Independent Manager of the
Company.
Section
13. Capital
Contributions.
The
Members have contributed to the Company property of an agreed value as listed
on
Schedule
B
attached
hereto in consideration of their respective Percentage Interests (hereinafter
defined) in the Company. “Percentage
Interest” means the ownership
interest
of each Member
in the
Company (the “Membership
Interests”),
expressed as a percentage, as set forth on Schedule
B.
In
accordance with Section
5,
the
Special Member shall not be required to make any capital contributions to the
Company.
Section
14. Additional
Contributions.
The
Members are not required to make any additional capital contribution to the
Company. However, the Members may make additional capital contributions to
the
Company at any time upon the written consent of the Members. To the extent
that
a Member makes an additional capital contribution to the Company, the Managing
Member shall revise Schedule
B
of this
Agreement. The provisions of this Agreement, including this Section
14,
are
intended to benefit the Members and the Special Member and, to the fullest
extent permitted by law, shall not be construed as conferring any benefit upon
any creditor of the Company (other than Lender for so long as any Obligation
is
outstanding) (and no such creditor of the Company shall be a third-party
beneficiary of this Agreement, except as provided in Section 29) and the Members
and the Special Member shall not have any duty or obligation to any creditor
of
the Company to make any contribution to the Company or to issue any call for
capital pursuant to this Agreement.
Section
15. Allocation
of Profits and Losses.
All
items of Company profit, loss, gain, deduction and credit shall be allocated
among the Members in proportion to their respective Percentage
Interests.
Section
16. Distributions.
Distributions
of Available Cash shall
be
distributed to the Members from time to time, as determined by the Managing
Member. All
distributions shall be made
on
a
pro
rata
basis
in
accordance with each
Member’s
respective
Percentage Interest. The Managing Member shall use its commercially reasonable
efforts to distribute sufficient Available Cash to permit Lightstone Value
Plus
Real Estate Investment Trust, Inc. (the “REIT”), the indirect parent of LVP, to
distribute annually to its stockholders all of its taxable income. Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall
not
be required to make a distribution to any Member on account of its interest
in
the Company if such distribution would violate the Act or any other applicable
law or any Basic Document.
14
Section
17. Books
and Records.
(a) The
Managing Member shall keep or cause to be kept complete and accurate books
of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Managing Member. The Members
and
their duly authorized representatives shall have the right to examine the
Company books, records and documents during normal business hours. The Company,
and the Managing Member on behalf of the Company, shall not have the right
to
keep confidential from the other Member any information that the Managing Member
would otherwise be permitted to keep confidential from the Member pursuant
to
Section 18-305(c) of the Act. The Company's books of account shall be kept
using
the method of accounting determined by the Managing Member in accordance with
generally accepted accounting principles in the United States of America and
in
a manner that will permit the REIT to satisfy any reporting requirements that
state regulators may impose upon it. The Company's independent auditor, if
any,
shall be an independent public accounting firm selected by the Managing
Member.
(b) All
funds
of the Company shall be deposited in a bank account or accounts in the Company's
name.
Section
18. Intentionally
Omitted.
Section
19. Other
Business.
The
Members, the Special Member and any Affiliate of the Members or the Special
Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently
or
with others notwithstanding any other duty existing at law or in equity. The
Company shall not have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement.
Section
20. Exculpation
and Indemnification.
(a) Neither
the Members nor the Special Member nor any Officer, Independent Manager,
employee or agent of the Company nor any employee, representative, agent or
Affiliate of the Members or the Special Member nor any member of the Board
of
Directors of the REIT (collectively, the “Covered
Persons”)
shall,
to the fullest extent permitted by law, be liable to the Company or any other
Person who is bound by this Agreement for any loss, damage or claim incurred
by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a manner reasonably believed to
be
within the scope of the authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross negligence
or
willful misconduct.
(b) To
the
fullest extent permitted by applicable law, a Covered Person shall be entitled
to indemnification from the Company for any loss, damage or claim incurred
by
such Covered Person by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred
by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that
any indemnity under this Section
20
by the
Company shall be provided out of and to the extent of Company assets only,
and
the Members and the Special Member shall not have personal liability on account
thereof and provided further,
that so
long as any Obligation is outstanding, any indemnity payment from funds of
the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section
20
shall be
subordinate to payments then due pursuant to the Basic Documents.
15
(c) To
the
fullest extent permitted by applicable law, expenses (including reasonable
legal
fees) incurred by a Covered Person defending any claim, demand, action,
suit
or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person is not entitled
to
be indemnified as authorized in this Section
20.
(d) A
Covered
Person shall be fully protected in relying in good faith upon the records of
the
Company and upon such information, opinions, reports or statements presented
to
the Company by any Person as to matters the Covered Person reasonably believes
are within such other Person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the
assets, liabilities, or any other facts pertinent to the existence and amount
of
assets from which distributions to the Members might properly be
paid.
(e) To
the
extent that, at law or in equity, a Covered Person has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other Covered Person, a Covered Person acting under this Agreement shall not
be
liable to the Company or to any other Covered Person for its good faith reliance
on the provisions of this Agreement or any approval or authorization granted
by
the Company or any other Covered Person. The provisions of this Agreement,
to
the extent that they restrict the duties and liabilities of a Covered Person
otherwise existing at law or in equity, are agreed by the Members and the
Special Member to replace such other duties and liabilities of such Covered
Person.
(f) The
foregoing provisions of this Section
20
shall
survive any termination of this Agreement.
Section
21. Assignments;
Transfers.
(a) Except
as
otherwise provided in this Agreement, (i) no Member may sell, transfer, assign,
hypothecate, pledge or otherwise dispose of or encumber (including the grant
of
an option with respect to any of the foregoing), directly or indirectly
(“Transfer”),
all
or any part of its limited liability company interest in the Company or withdraw
from the Company, and (ii) no Transfer of any direct or indirect interest in
a
Member shall be permitted, except (in the case of both clauses (i) and (ii))
with the prior written approval of the Managing Member, which approval may
be
granted or withheld by the Managing Member in its sole and absolute discretion.
16
(b) To
the
fullest extent permitted by law, any Transfer not in compliance with the
requirements of this Section
21
shall be
void as against the Company and the other Members and shall be disregarded
by
all of the Members and the Company for all purposes of allocations and
distributions hereunder. The Company shall be entitled to treat the record
owner
of a limited liability company interest in the Company as the absolute owner
thereof for all purposes and shall incur no liability to any purported
transferee or any other Person for distributions of money or other property
in
good faith made to the record owner of such limited liability company interest
in the Company, unless and until all conditions of any Transfer shall have
been
fulfilled in accordance herewith to the satisfaction of the Company, subject
to
the prior written approval of the Managing Member which approval may be granted
or withheld by the Managing Member in its sole and absolute
discretion.
(c) Unless
a
transferee is substituted as a Member in accordance with this Section 21(c),
the
transferee shall not be entitled to any of the rights of a Member hereunder
with
respect to the limited liability company interest in the Company transferred.
A
transferee of a limited liability company interest in the Company may be
substituted as a Member and shall thereupon be entitled to the rights of a
Member with respect to such limited liability company interest in the Company,
only upon satisfaction of the following conditions:
(i) the
transferor shall have granted the transferee the right to be substituted as
a
Member in its place;
(ii) the
Managing Member has approved the Transfer in writing, which it may refuse to
do
for any reason or for no reason;
(iii) the
transferee shall have paid, or made arrangement satisfactory to the Managing
Member to pay, to the Company all costs and expenses incurred by the Company
in
connection with such substitution, including any costs incurred in amending
this
Agreement, the certificate of formation, if necessary, or any other document
filed with respect to the Company in any jurisdiction;
(iv) the
transferee shall have executed and delivered such instruments, in form and
substance satisfactory to the Managing Member, as the Managing Member may deem
to be necessary or desirable to effect such substitution and to confirm the
agreement of the transferee to be bound by and subject to all of the terms
and
provisions of this Agreement and any other relevant agreements relating to
the
Company to which the Transferor and the Company or other Members are
parties;
(v) such
Transfer shall not result in the termination of the Company or any of its
Subsidiaries pursuant to Code Section 708;
(vi) the
Managing Member has received an opinion of the Company’s counsel that the
proposed Transfer is permissible under all applicable federal or state
securities laws and will not cause the Company to be classified other than
as a
partnership for federal income tax purposes or cause the Company to terminate
for federal income tax purposes; and
17
(vii) such
assignment shall not result in a default or event of default under any of the
Loan Documents or any other material instruments or agreements to which the
Company or any of the Subsidiaries is a party or to which the Property is
subject and the Company and the Managing Member shall have obtained all consents
to such assignment required pursuant to the Loan Documents.
(d) Right
to
Force Sale of Property. Notwithstanding any provision contained herein to the
contrary, at any time after seven years from the date hereof, the Non-Managing
Member shall have the right to force the Company to dispose of the Property
by
delivering written notice thereof (a “Sale
Notice”)
to the
Managing Member. Any Sale Notice shall indicate the appraised value of the
Property, as determined by an independent, third party appraiser selected by
the
Board of Directors of the REIT (the “Appraised
Value”).
Upon
receipt of a Sale Notice, the Managing Member shall have the right to elect
to
either (i) initiate a sale of the Property for the Appraised Value or (ii)
within ninety (90) days of receipt of a Sale Notice, purchase the Non-Managing
Member’s Membership Interest in the Company for an amount equal to the amount of
cash that would be distributed to the Non-Managing Member under Article 16,
if
the Property were sold for the Appraised Value, assuming that all Company
indebtedness were repaid in full (including prepayment penalties that would
be
then due and payable) and transaction costs equal to the sum of (i) the transfer
taxes that would be due upon such sale and (ii) two and one-half percent (2.5%)
of the Appraised Value were to be paid prior to the hypothecated liquidation
distributions.
(e) Right
of
First Refusal; Tag-Along Right. Notwithstanding any provision contained herein
to the contrary, if at any time a
Member
shall
desire to sell all or any portion of its limited liability company interest
in
the Company to an unaffiliated third party purchaser (the “Third
Party Purchaser”),
then
before any such sale may be consummated, the terms and provisions of this
Section 11(e) must be complied with.
(i) In
the
event that a Member intends to accept a bona fide written offer received from
a
Third Party Purchaser to purchase all or any portion of its limited liability
company interest in the Company (the “Selling
Member”),
then
such Selling Member shall promptly give written notice (the “Sale
Notice”)
thereof to the remaining Member (the “Remaining
Member”)
setting forth the terms of the offer and the identity of the Third Party
Purchaser and include therewith copies of all relevant documents, to the extent
such documentation exists. For a period of ten (10) business days (the
“Ten
Day Period”)
after
receipt of the Sale Notice, the Remaining Member shall have the right by
delivering the written notice provided in Section 11(e)(ii)(A) or Section
11(e)(iii)(A) below to either:
A. purchase
that portion of the Selling Member’s limited liability company interest in the
Company which the Third Party Purchaser intends to acquire (the “Offered
Company Interest”)
in
accordance with Section 11(e)(ii) below at an aggregate purchase price (the
“First
Refusal Purchase Price”)
equal
to the purchase price offered in writing by the Third Party Purchaser for the
Offered Company Interest (the “First
Refusal Right”);
or
18
B. sell
to
the Third Party Purchaser in accordance with Section 11(e)(iii) below that
portion of Remaining Member’s limited liability company interest in the Company
(the “Tag-Along
Portion”)
equal
to the product obtained when multiplying: (I) the Remaining Member’s
limited liability company interest in the Company immediately prior to the
sale
to the Third Party Purchaser, and (II) the aggregate amount of limited liability
company interest in the Company the Third Party Purchaser desires to acquire
from the Selling Member and that the Selling Member desires to sell to the
Third
Party Purchaser at an aggregate purchase price (the “Tag-Along
Purchase Price”)
equal
to the product obtained when multiplying (I) the purchase price offered in
writing by the Third Party Purchaser for the Offered Company Interest, and
(II)
the Remaining Member’s Percentage Interest in the Company immediately prior to
the sale to the Third Party Purchaser (the “Tag-Along
Right”).
(ii) A.
If the
Remaining Member shall elect to exercise the First Refusal Right pursuant to
Section 11(e)(i)(A) above, then within the Ten Day Period the Remaining
Member: (x) shall send a written notice (the “First
Refusal Notice”)
to the
Selling Member specifying the date on which the purchase and sale of the Offered
Company Interest (the “First
Refusal Closing”)
shall
occur, which date shall not be earlier than ten (10) calendar days nor later
than sixty (60) calendar days from the date such notice is delivered; and (y)
shall pay to the Selling Member in immediately available funds by bank wire
transfer, certified check or bank cashier’s check a non refundable deposit in an
amount equal to the lesser
of (a)
$500,000, (b) the dollar amount of the First Refusal Purchase Price, or (c)
the
dollar amount of any deposit offered or made by the Third Party Purchaser (the
“First
Refusal Deposit”),
which
First Refusal Deposit, in any event, shall be credited against the First Refusal
Purchase Price if the First Refusal Closing shall occur.
B. At
the
First Refusal Closing: (i) the Remaining Member shall pay to the Selling
Member the First Refusal Purchase Price less the First Refusal Deposit in cash
in immediately available funds by bank wire transfer, certified check or bank
cashier’s check; and (ii) the Selling Member shall transfer and assign to the
Remaining Member the Offered Company Interest free and clear of any encumbrance
and shall execute and deliver to the Company all necessary documentation
reasonably required in order to effectuate the transfer and sale of the Offered
Company Interest. In the event the Remaining Member does not consummate the
First Refusal Closing as aforesaid as a result of the Remaining Member’s breach
or default of its obligations hereunder, the First Refusal Deposit shall be
retained by the Selling Member as liquidated damages and not as a
penalty.
(iii) A.
If the
Remaining Member shall elect to exercise the Tag-Along Right pursuant to Section
11(e)(i)(B) above, then within the Ten Day Period the Remaining Member shall
send a written notice (the “Tag-Along
Notice”)
to the
Selling Member which notice: (x) shall specify the Remaining Member’s desire to
exercise the Tag-Along Right pursuant to Section 11(e)(i)(B) above; and (y)
shall contain a covenant and undertaking by the Remaining Member to transfer
and
assign the Tag-Along Portion to the Third Party Purchaser at a closing (the
“Tag-Along
Closing”)
determined by the Selling Member and the Third Party Purchaser and to execute
and deliver documentation substantively and substantially identical to the
documentation that the Selling Member is executing and delivering in connection
with the sale to the Third Party Purchaser.
19
B. At
the
Tag-Along Closing: (i) the Third Party Purchaser shall pay the Tag-Along
Purchase Price to the Remaining Member in the same manner as the Third Party
Purchaser pays the remaining portion of the purchase price for that portion
of
the Selling Member’s limited liability company interest in the Company which is
subject to the Third Party Purchaser’s offer, and (ii) the Remaining Member
shall transfer and assign to the Third Party Purchaser the Tag-Along Portion
of
the Remaining Member’s limited liability company interest in the Company to the
Third Party Purchaser free and clear of any encumbrance, and shall execute
and
deliver to the Third Party Purchaser all necessary documentation reasonably
required by the Selling Member in order to effectuate the transfer and sale
of
the Tag-Along Portion to the Third Party Purchaser; provided,
however,
that
the Remaining Member shall only be required to execute documentation
substantively and substantially identical to the documentation that the Selling
Member is executing and delivering in connection with the Selling Member’s sale
of its limited liability company interest in the Company to the Third Party
Purchaser.
(iv) The
failure of the Remaining Member to give either (x) a First Refusal Notice and
to
fund the First Refusal Deposit provided for in Section 11(e)(ii)(A) above within
the time period required pursuant to Section 11(e)(ii)(A), or (y) the Tag-Along
Notice provided for in Section 11(e)(iii)(A) above within the time period
required pursuant to Section 11(e)(iii)(A) shall be deemed to be an election
by
the Remaining Member not to exercise the First Refusal Right or the Tag-Along
Right, as the case may be, as to such offer. The election by the Remaining
Member not to exercise the First Refusal Right or the Tag-Along Right, as the
case may be, as to any offer shall not affect the Remaining Member’s First
Refusal Right or the Tag-Along Right as to any subsequent offer. If the
Remaining Member elects not to exercise the First Refusal Right or the Tag-Along
Right, then the Selling Member may proceed to transfer the Offered Company
Interest in accordance with the terms of the third party offer within a period
of one hundred and eighty (180) days after the date of the Sale Notice; but
if
such sale is not consummated within such one hundred and eighty (180) day
period, then the limited liability company interest in the Company covered
by
the offer will be again be subject to the First Refusal Right and Tag-Along
Right provided by this Section 11(e); provided,
however,
that if
the Remaining Member shall timely deliver the First Refusal Notice and fund
the
First Refusal Deposit in accordance with Section 11(e)(ii)(A) but later fails
to
consummate the acquisition of the Offered Company Interest at the First Refusal
Closing, then, in addition to retaining the First Refusal Deposit as liquidated
damages (and not as a penalty) the Selling Member shall have a period of an
additional ninety (90) days from the date of the First Refusal Closing to
consummate the sale of the Offered Company Interest that was subject to the
First Refusal Right to the Third Party Purchaser; and provided further,
however,
that if
the Remaining Member shall timely deliver the Tag-Along Notice in accordance
with Section 11(e)(iii)(A) but later fails to sell the Tag-Along Portion to
the
Third Party Purchaser at the Tag-Along Closing, then the Selling Member shall
have a period of an additional ninety (90) days from the date of the Tag-Along
Closing to consummate the sale of the entire amount of limited liability company
interest in the Company that the Third Party Purchaser originally intended
to
acquire from the Selling Member.
20
(v) Any
Third
Party Purchaser to whom the Offered Company Interest or the Tag-Along Portion
is
transferred under this Section 11(e) shall hold such limited liability company
interest in the Company subject to all terms and conditions of this Agreement
and shall, as a condition of receiving such limited liability company interest
in the Company, execute and deliver any and all documentation, and comply with
any and all terms and conditions, reasonably requested by the Managing
Member.
Section
22. Resignation.
Except
as
expressly provided in this Agreement, the Managing Member shall not resign
or
withdraw as managing member of the Company without the prior written approval
of
the other Members, which approval may be withheld by such Members in their
sole
discretion.
Section
23. Admission
of Additional Members.
One
or
more additional Members of the Company may be admitted to the Company with
the
written consent of the Managing Member; provided,
however,
that,
notwithstanding the foregoing, so long as any Obligation remains outstanding,
no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
Section
24. Dissolution.
(a) Subject
to Section
9(d),
the
Company shall be dissolved, and its affairs shall be wound up upon the first
to
occur of the following: (i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other event which
terminates the continued membership of the last remaining member of the Company
in the Company unless the Company is continued without dissolution in a manner
permitted by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. Upon the occurrence of any event
that causes the last remaining member of the Company to cease to be a member
of
the Company or that causes the last remaining Member to cease to be a member
of
the Company (other than (i) upon an assignment by the last remaining Member
of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections
21 and 23,
or (ii)
the resignation of the last remaining Member and the admission of an additional
member of the Company pursuant to Sections
22 and 23),
to the
fullest extent permitted by law, the personal representative of such member
is
hereby authorized to, and shall, within 90 days after the occurrence of the
event that terminated the continued membership of such member in the Company,
agree in writing (i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the case may be, as
a
substitute member of the Company, effective as of the occurrence of the event
that terminated the continued membership of the last remaining Member in the
Company.
21
(b) Notwithstanding
any other provision of this Agreement, the Bankruptcy of a Member or the Special
Member shall not cause such Member or Special Member, respectively, to cease
to
be a member of the Company or cause the Company to be dissolved or its affairs
to be wound up and upon the occurrence of such an event, the Company shall
continue without dissolution. Except as otherwise required by law,
notwithstanding any other provision of this Agreement, the dissolution of a
Member or the Special Member shall not, by itself, cause the Company to be
dissolved or its affairs to be wound up and upon the occurrence of such an
event, the Company shall continue without dissolution.
(c) Notwithstanding
any other provision of this Agreement, each Member and the Special Member waives
any right it might have to agree in writing to dissolve the Company upon the
Bankruptcy of a Member or the Special Member, or the occurrence of an event
that
causes a Member or the Special Member to cease to be a member of the
Company.
(d) In
the
event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied
in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
(e) The
Company shall terminate when (i) all of the assets of the Company, after payment
of or due provision for all debts, liabilities and obligations of the Company
shall have been distributed to the Members in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been canceled in
the
manner required by the Act.
Section
25. Waiver
of Partition; Nature of Interest.
Except
as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, each Member and the Special Member hereby irrevocably waives any right
or power that such Person might have to cause the Company or any of its assets
to be partitioned, to cause the appointment of a receiver for all or any portion
of the assets of the Company, to compel any sale of all or any portion of the
assets of the Company pursuant to any applicable law or to file a complaint
or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The Members shall not
have any interest in any specific assets of the Company, and the Members shall
not have the status of a creditor with respect to any distribution pursuant
to
Section
16
hereof.
The interest of the Members in the Company are personal property.
Section
26. Benefits
of Agreement; No Third-Party Rights.
None
of
the provisions of this Agreement shall be for the benefit of or enforceable
by
any creditor of the Company other than the Lender (for so long as any Obligation
is outstanding) or by any creditor of the Members or the Special Member. Nothing
in this Agreement shall be deemed to create any right in any Person (other
than
Covered Persons and for so long as any Obligation is outstanding, the Lender)
not a party hereto, and this Agreement shall not be construed in any respect
to
be a contract in whole or in part for the benefit of any third Person (except
as
provided in Section
29).
22
Section
27. Severability
of Provisions.
Each
provision of this Agreement shall be considered severable and if for any reason
any provision or provisions herein are determined to be invalid, unenforceable
or illegal under any existing or future law, such invalidity, unenforceability
or illegality shall not impair the operation of or affect those portions of
this
Agreement which are valid, enforceable and legal.
Section
28. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
Section
29. Binding
Agreement.
Notwithstanding
any other provision of this Agreement, the Members agree that this Agreement,
including, without limitation, Sections 5,
7,
8,
9,
10,
16,
20,
21,
22,
23,
24,
25,
26,
29
and
31,
constitutes a legal, valid and binding agreement of the Members, and is
enforceable against the Members by the Independent Manager in accordance with
its terms. In addition, the Independent Manager and Lender (so long as any
Obligations are outstanding) shall be intended beneficiaries of this
Agreement.
Section
30. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware (without regard to conflict of laws principles), all rights and
remedies being governed by said laws.
Section
31. Amendments.
Subject
to Section
9(d),
this
Agreement may be modified, altered, supplemented or amended pursuant to a
written agreement executed and delivered by the Managing Member. Notwithstanding
anything to the contrary in this Agreement, so long as any Obligation is
outstanding, this Agreement may not be modified, altered, supplemented or
amended unless the Lender consents in writing and the Rating Agency Condition
is
satisfied except: (i) to cure any ambiguity or (ii) to convert or supplement
any
provision in a manner consistent with the intent of this Agreement and the
other
Basic Documents.
Section
32. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement and all of which together shall constitute
one and the same instrument.
23
Section
33. Notices.
Any
notices required to be delivered hereunder shall be in writing and personally
delivered, mailed or sent by telecopy, electronic mail or other similar form
of
rapid transmission, and shall be deemed to have been duly given upon receipt
(a)
in the case of the Company, to the Company at its address in Section
2,
(b) in
the case of a Member, to such Member at its address as listed on Schedule
B
attached
hereto and (c) in the case of either of the foregoing, at such other address
as
may be designated by written notice to the other party.
Section
34. Tax
Matters.
It is
the intention of the Members that the Company shall be taxed as a "partnership"
for federal, state, local and foreign income tax purposes. The Members shall
take all reasonable actions, including the amendment of this Agreement and
the
execution of other documents, as may reasonably be required in order for the
Company to qualify for and receive "partnership" treatment for Federal, state,
local and foreign income tax purposes. The books and records of the Company
shall be maintained by the Managing Member in accordance with generally accepted
accounting principles, consistently applied, and Section 704(b) of the Internal
Revenue Code of 1986, as amended (the “Code”)
and
the Regulations promulgated thereunder. A
capital
account shall be established and maintained by the Managing Member on behalf
of
each Member in accordance with the Treasury Regulation issued pursuant to
Section 704(b) of the Code. The Managing Member shall be the “tax matters
partner” as defined in Section 6231(a)(6) of the Code, with respect to the
Company.
Section
35. Subsidiaries.
Any and
all references herein to the Company or any Member or Managing Member causing
or
directing any action on behalf of a Subsidiary shall be deemed to refer to
the
Company causing (or such Member or Managing Member causing the Company to
cause), in its capacity as a direct or indirect manager or member of such
Subsidiary, such action to be taken for and on behalf of such
Subsidiary.
Section
36. Effectiveness.
Pursuant
to the Act, this Agreement shall be effective as of the execution of this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
24
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has
duly
executed this Limited Liability Company Agreement as of the __ day of January,
2007.
|
MEMBERS:
LVP
▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC,
a
Delaware limited liability company
By: Lightstone
Value Plus REIT LP,
its
sole member
a Maryland corporation, its general partner
|
||
| |
|
|
| By: | ||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Chief Financial Officer
|
||
|
LIGHTSTONE
1407 MANAGER LLC,
a
Delaware limited liability company
By: Lightstone
Holdings LLC,
its
managing member
|
||
| |
|
|
| By: | ||
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
President
|
||
| SPECIAL MEMBER/INDEPENDENT MANAGER: | ||
| |
|
|
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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SCHEDULE
A
Definitions
A. Definitions
When
used
in this Agreement, the following terms not otherwise defined herein have the
following meanings:
“Act”
has
the
meaning set forth in the preamble to this Agreement.
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with such
Person.
“Agreement”
means
this Limited Liability Company Agreement of the Company, together with the
schedules attached hereto, as amended, restated or supplemented or otherwise
modified from time to time.
“Certificate
of Formation”
means
the Certificate of Formation of the Company filed with the Secretary of State
of
the State of Delaware on November 28, 2006, as amended or amended and restated
from time to time.
“Available
Cash”
means,
at any particular time, all cash and cash items (from whatever source received)
held by the Company at such time, to the extent such cash is not reasonably
necessary (in the judgement of the Managing Member) to cover (a) obligations
or
expenses of the Company at such time, or reserves for working capital and
capital expenditures (taking into account expected revenues) anticipated within
a reasonable period thereafter.
“Bankruptcy”
means,
with respect to any Person, if such Person (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii)
is
adjudged a bankrupt or insolvent, or has entered against it an order for relief,
in any bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or regulation, (v) files
an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of this nature,
(vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver
or liquidator of the Person or of all or any substantial part of its properties,
or (vii) if 120 days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment, liquidation
or
similar relief under any statute, law or regulation, if the proceeding has
not
been dismissed, or if within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of such Person
or
of all or any substantial part of its properties, the appointment is not vacated
or stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of “Bankruptcy” is intended
to replace and shall supersede and replace the definition of “Bankruptcy” set
forth in Sections 18-101(1) and 18-304 of the Act.
“Bankruptcy
Action”
means
to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, reorganization
or
relief with respect to the Company under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay
its
debts generally as they become due, or declare or effectuate a moratorium on
the
payment of any obligation, or take action in furtherance of any such
action.
“Basic
Documents”
means
this Agreement and the Loan Documents to which the Company is a party and all
documents and certificates contemplated thereby or delivered in connection
therewith.
“Company”
means
▇▇▇▇ ▇▇▇▇▇▇▇▇ Mezz II LLC, a Delaware limited liability company.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise. “Controlling” and “Controlled” shall have
correlative meanings. Without limiting the generality of the foregoing, a Person
shall be deemed to Control any other Person in which it owns, directly or
indirectly, ten percent (10%) or more of the ownership interests.
“Covered
Persons”
has
the
meaning set forth in Section
20(a).
“Guarantor”
has
the
meaning assigned to that term in the Loan Documents.
“Indemnitor”
has
the
meaning assigned to that term in the Loan Documents.
"Independent
Manager"
means a
natural person who, for the five-year period prior to his or her appointment
as
Independent Manager has not been, and during the continuation of his or her
service as Independent Manager is not: (i) an employee, manager, stockholder,
partner or officer of the Company or any of its Affiliates (other than his
or
her service as an Independent Manager or similar capacity of the Company or
any
of its Affiliates); (ii) a customer or supplier of the Company or any of its
Affiliates (other than an Independent Manager provided by a corporate services
company that provides independent managers in the ordinary course of its
business); or (iii) any member of the immediate family of a person described
in
(i) or (ii). Each Independent Manager is hereby designated as a “manager” of the
Company within the meaning of the Act.
“Lender”
shall
mean ▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation,
its
successors and assigns.
“Loan
Documents”
means
the documents evidencing, securing or otherwise relating to the Senior Loan
and/or the Mezzanine loan.
“Loans”
means
collectively, the Senior Loan and the Mezzanine Loan.
“Management
Agreement”
means
the agreement of the Independent Manager in the form attached hereto as
Schedule
C.
The
Management Agreement shall be deemed incorporated into, and a part of, this
Agreement
“Material
Action”
means
to consolidate or merge the Company with or into any Person, or sell, transfer,
dispose of or encumber (except with respect to the Lender) all or substantially
all of the assets of the Company or, to the fullest extent permitted by law,
dissolve, wind-up, or liquidate the Company or acquire all or substantially
all
of the assets of any Person.
“Members”
means,
collectively, Lightstone 1407 Manager LLC and LVP ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, each a
Delaware limited liability company, as the initial members of the Company,
and
includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, the term
“Member” shall not include the Special Member. Each Member is hereby designated
as a “manager” of the Company within the meaning of the Act.
“Mezzanine
Loan”
means
that certain mezzanine loan made by Lender to Mezz LLC.
“Mezzanine
Note”
means
that certain mezzanine promissory note in the original principal amount of
$__________________ made by Mezz LLC to Lender in connection with the Mezzanine
Loan.
“Notes”
means
collectively, the Senior Note and the Mezzanine Note.
“Obligations”
shall
mean the indebtedness, liabilities and obligations of the Company, as the sole
member of Mezz LLC under or in connection with the Loan Documents or any related
document in effect as of any date of determination.
“Officer”
means
an officer of the Company described in Section
11.
“Person”
means
any individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or not a legal
entity, and any governmental authority.
“Property”
means
that certain real property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇.
“Rating
Agency”
has
the
meaning assigned to that term in the Loan Documents.
“Rating
Agency Condition”
means,
with respect to any action, that each Rating Agency shall have been given ten
days prior notice thereof and that each of the Rating Agencies shall have
notified the Company in writing that such action will not result in a reduction
or withdrawal, downgrade or qualification of the then current rating by such
Rating Agency of the Loan or any pool or loans of which the Loan forms a part,
or of any of the securities issued in connection with the Securitization (as
defined in the Loan Documents).
“Special
Member”
means,
upon such person's admission to the Company as a member of the Company pursuant
to Section
5,
a
person acting as Independent Manager, in such person's capacity as a member
of
the Company. A Special Member shall only have the rights and duties expressly
set forth in this Agreement.
“Senior
Loan”
means
that certain mortgage loan made by Lender to Property Owner.
“Senior
Note”
means
that certain promissory note in the original principal amount of
$__________________ made by Property Owner to Lender in connection with the
Senior Loan.
“Subsidiaries”
means
collectively, Mezz LLC and Property Owner. Each individually is also a
“Subsidiary”.
B. Rules
of Construction
Definitions
in this Agreement apply equally to both the singular and plural forms of the
defined terms. The words “include” and “including” shall be deemed to be
followed by the phrase “without limitation.” The terms “herein,” “hereof' and
“hereunder” and other words of similar import refer to this Agreement as a whole
and not to any particular Section, paragraph or subdivision. The Section titles
appear as a matter of convenience only and shall not affect the interpretation
of this Agreement. All Section, paragraph, clause, Exhibit or Schedule
references not attributed to a particular document shall be references to such
parts of this Agreement.
SCHEDULE
B
Members
|
Name
|
Mailing
Address
|
Agreed
Value of Capital Contribution
|
Percentage
Interest
|
|||
|
Lightstone
1407 Manager LLC
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$_____
|
51%
|
|||
|
LVP
▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$_____
|
49%
|
SCHEDULE
C
Management
Agreement
January
____, 2007
______________________
c/o
The
Lightstone Group LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
RE:
Management
Agreement - 1407 Broadway Mezz II LLC
Ladies
and Gentlemen:
For
good
and valuable consideration, each of the undersigned Persons, who have been
designated as the Managing Member and Independent Manager of ▇▇▇▇ ▇▇▇▇▇▇▇▇
Mezz
II LLC, a Delaware limited liability company (the “Company”),
in
accordance with the Limited Liability Company Agreement of the Company, dated
as
of the date hereof, as it may be amended or restated from time to time (the
“LLC
Agreement”),
hereby agree as follows:
1. Each
of
the undersigned accepts such Person's rights and authority as the Managing
Member or Independent Manager (as applicable) under the LLC Agreement and agrees
to perform and discharge such Person's duties and obligations as the Managing
Member or Independent Manager (as applicable) under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under
the
LLC Agreement shall continue until such Person's successor as the Managing
Member or Independent Manager (as applicable) is designated or until such
Person's resignation or removal as the Managing Member or Independent Manager
(as applicable) in accordance with the LLC Agreement. Each of the undersigned
agrees and acknowledges that it has been designated as a “manager” of the
Company within the meaning of the Delaware Limited Liability Company
Act.
2. So
long
as any Obligation is outstanding, each of the undersigned agrees, solely in
its
capacity as a creditor of the Company on account of any indemnification or
other
payment owing to the undersigned by the Company, not to acquiesce, petition
or
otherwise invoke or cause the Company to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Company under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or any substantial part
of
the property of the Company, or ordering the winding up or liquidation of the
affairs of the Company.
3. THIS
MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED
BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Initially
capitalized terms used and not otherwise defined herein have the meanings set
forth in the LLC Agreement.
This
Management Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Management Agreement and all of which
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the undersigned have executed this Management Agreement as
of
the day and year first above written.
|
LIGHTSTONE
1407 MANAGER LLC
By:
Lightstone Holdings LLC,
its
managing member
|
||
| |
|
|
| By: | ||
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
President
|
||
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
||
SCHEDULE
D
INDEPENDENT
MANAGER
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
SCHEDULE
E
OFFICERS
|
OFFICERS
|
TITLE
|
|
|
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
President
|
|
|
|
||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Secretary
|