EXHIBIT 10.2
OPERATING AGREEMENT
FOR
NOCHA LLC,
A NEW YORK LIMITED LIABILITY COMPANY
This OPERATING AGREEMENT (this "AGREEMENT"), is made as of December
13, 2002, among LANDMARK TRI-STATE, INC., a Delaware corporation ("LANDMARK"),
TRI-STATE LANDMARK, LLC, a Delaware limited liability company ("TSL"), KEYSTONE
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("KEYSTONE") and
KEYSTONE NOCHA INVESTOR LLC ("KEYSTONE INVESTOR") (Landmark, TSL, Keystone and
Keystone Investor are referred to herein collectively as the "MEMBERS" and
individually as a "MEMBER"), with reference to the following facts:
RECITALS:
A. Landmark, TSL, Keystone and Keystone Investor desire to own
interests in a limited liability company (the "COMPANY") under the terms of this
Agreement that will acquire all of the land and buildings and other improvements
thereon at the locations set forth in EXHIBIT A annexed hereto (each, a
"PROPERTY"; collectively, the "PROPERTIES") either by direct fee ownership (the
"FEE PROPERTIES") or through acquiring ownership of the entities that own the
Properties (the "SUBSIDIARIES").
B. The Company was formed in July 2002 and the Certificate of
Formation (the "ARTICLES") for the Company was filed under the laws of the State
of New York with the New York Secretary of State.
C. The Members desire to adopt and approve an operating agreement
for the Company pursuant to the provisions of the Act (as hereinafter defined)
and the laws of the State of New York, reflecting among other things the
admission of Landmark, TSL, Keystone and Keystone Investor as members.
D. Keystone and its Affiliates will contribute and/or sell the
Fee Properties and the Subsidiaries to the Company and Keystone Investor will
make a cash contribution to the Company pursuant to that certain Contribution
and Sale Agreement dated as of July 2, 2002, as amended, among the Company,
Keystone and the other signatories thereto (the "CONTRIBUTION AND SALE
AGREEMENT").
E. Landmark and TSL shall contribute to the Company all sums
necessary to permit the Company to fulfill its obligations under the
Contribution and Sale Agreement.
NOW, THEREFORE, the Members by this Agreement set forth the operating
agreement for the Company upon the terms and subject to the conditions of this
Agreement.
I. ORGANIZATIONAL MATTERS
1.1 NAME
The name of the Company shall be "Nocha LLC". The Company may conduct
business under that name or any other name approved by the Manager, except that
no Member's name may be used in the Company's name without the prior written
consent of such Member thereto having been obtained.
1.2 TERM
The term of the Company commenced as of the date of the filing of the
Articles and, unless sooner terminated under SECTION 6.1, shall terminate on
December 31, 2052.
1.3 OFFICE AND AGENT
The initial registered office of the Company in New York shall be c/o
the Office of the Secretary of State of New York and its initial registered
agent shall be the Secretary of State of New York. The registered office and
registered agent in New York may be changed by the Members from time to time
pursuant to the Act. The principal office address of the Company shall be ▇/▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Richmond, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇, or at such location as the Manager may
determine. The Manager shall deliver a copy of all legal notices to the Members
promptly upon receipt thereof by the Manager.
1.4 BUSINESS OF THE COMPANY
Notwithstanding the purpose of the Company which is described in the
Articles, the Members acknowledge that the sole business of the Company shall be
to own, renovate, manage, operate, lease, license, finance, refinance, sell and
otherwise deal with and dispose of the Properties and to transact any and all
lawful business for which a limited liability company may be organized under the
law of the State of New York that is incident and necessary or appropriate to
the foregoing.
1.5 DEFINED TERMS
The terms used in this Agreement shall have the meanings specified in
this SECTION 1.5 unless otherwise expressly provided herein or required by law.
(a) "ACCOUNTANTS" shall mean the accounting department of The
Pioneer Companies or such other accounting firm as may be designated from time
to time by Manager pursuant to this Agreement.
(b) "ACT" shall mean the New York Limited Liability Company Law,
N.Y. Ltd. Liab. Co. Section 101 et seq. (2001), as the same may be amended from
time to time. All references herein to sections of the Act shall include any
corresponding provisions of succeeding law.
(c) "ADDITIONAL MEMBER" shall mean a new member that is admitted
to the Company pursuant to and subject to the terms of this Agreement after the
date hereof.
(d) "ADJUSTED CAPITAL ACCOUNT" shall have the meaning set forth in
EXHIBIT D annexed hereto.
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(e) "ADJUSTED CAPITAL ACCOUNT DEFICIT" shall have the meaning set
forth in EXHIBIT D annexed hereto.
(f) "AFFILIATE" shall mean any Person, which directly or
indirectly, through one or more intermediaries, Controls (as hereinafter
defined), is controlled by, or is under common Control with, such Person.
(g) "AGREEMENT" shall mean this Operating Agreement, as originally
executed and as amended from time to time in accordance with its terms.
(h) "ARTICLES" shall have the meaning set forth in the Recitals.
(i) "ASSUMED DEBT" shall mean the mortgage loans having an unpaid
principal balance of $105,939,815.23 as of December 9, 2002 secured by first
mortgage loans on certain of the Properties as set forth in EXHIBIT B annexed
hereto.
(j) "BANKRUPTCY" shall mean with respect to a Member, being the
subject of an order for relief under the Bankruptcy Code, or any successor
statute or other statute in any foreign jurisdiction having like import or
effect.
(k) "BANKRUPTCY CODE" shall mean the Bankruptcy Reform Act of
1978, 11 U.S.C. Sections 101 et seq.
(l) "CAPITAL ACCOUNT" shall have the meaning set forth in
SECTION 2.3 hereto.
(m) "CAPITAL CONTRIBUTION" shall mean any contribution of cash,
cash equivalent, or the fair market value of any property which a Member
contributes to the Company as a Member, for such value as the Manager and
contributing Member determine in good faith; PROVIDED, HOWEVER, if the
contribution is being made after the date hereof, then the value of such
contribution shall be determined by the Manager and the Member making such
contribution but, if any other Member shall dispute such valuation in writing
within thirty (30) days after receiving written notification thereof, then such
valuation shall be determined by an appraiser selected by the Manager having at
least ten (10) years of experience appraising property similar to the
contributed property in question.
(n) "CASHFLOW COVERAGE REQUIREMENT" shall mean that the Cashflow
Coverage Ratio of the Properties that the Company shall continue to own
following any sale of Properties shall be greater than or equal to the greater
of (i) the Cashflow Coverage Ratio of all of the Properties at the Closing Date
and (ii) the Cashflow Coverage Ratio of all the Properties owned by the Company
immediately prior to the prospective sale triggering the Cashflow Coverage
Requirement, including the Properties to be sold in such prospective sale.
(o) "CASHFLOW COVERAGE RATIO" shall mean the ratio of (i) Net
Operating Income of the relevant Property or Properties for the last twelve (12)
months, divided by (ii) the sum of the payments made by the Company to meet its
obligations under any outstanding debt for such Property or Properties for the
last twelve (12) months and the Preferred Return.
(p) "CASH FROM OPERATIONS" shall mean all cash received by the
Company from whatever source for a given period, other than sums constituting
Cash from Sale, Financing or Refinancing.
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(q) "CASH FROM SALE, FINANCING OR REFINANCING" shall mean all cash
received by the Company from the sale, financing, refinancing, casualty,
condemnation, liquidation, or other capital transaction relating to all or any
portion of the Properties (each, a "DISPOSITION EVENT"). Cash from Sale,
Financing or Refinancing shall include, without limitation, proceeds from
insurance other than rental or business interruption insurance, that are
received by the Company but not used to restore the Properties, LESS (i) costs
incurred by the Company in any such transaction, (ii) sums paid or due and
payable on account of loans secured by the Properties that are required to be
repaid in connection with any such transaction or applied to repair or restore
damage to the Property or Properties affected, and (iii) reserves reasonably
established in connection with the Disposition Event by Manager, PROVIDED that
such reserves shall be included in Cash from Sale, Financing or Refinancing for
any subsequent period during which, and to the extent, they are released to the
Company. Cash from Sale, Financing or Refinancing shall NOT include any (i)
Capital Contributions made by any Member or (ii) sums constituting Cash from
Operations.
(r) "CAUSE" shall mean the gross negligence, fraud or willful
malfeasance of Manager or any of its principals.
(s) "CLAIM" shall mean either a ▇▇▇▇▇▇ Claim and/or a Hartford
Claim.
(t) "CLOSING" shall mean the closing of the Company's acquisition
of legal title to the Fee Properties and the Subsidiaries under the Contribution
and Sale Agreement.
(u) "CLOSING DATE" shall mean the date the Closing occurs.
(v) "CODE" shall have the meaning set forth in EXHIBIT D annexed
hereto.
(w) "COLUMBIA PROPERTY" shall mean the Property located at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
(x) "COMPANY" shall have the meaning set forth in the Recitals.
(y) "CONTRIBUTED FEE PROPERTIES" shall mean those Properties
contributed by Keystone and/or its Affiliates pursuant to the Contribution and
Sale Agreement.
(z) "CONTRIBUTION AND SALE AGREEMENT" shall have the meaning set
forth in the Recitals.
(aa) "CONTROL" shall mean the power, directly or indirectly, to
direct the actions, operation or management of another person or business entity
by contract, the ownership of voting rights or otherwise and the term
"CONTROLLING" and "CONTROLLED" have meaning correlating to the foregoing.
(bb) "DEBT SERVICE PAYMENT" shall mean, with respect to a given
period, the principal and interest payments due and payable with respect to the
Assumed Debt during such period.
(cc) "▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Publishers, a Division of Thomson
Corp.
(dd) "▇▇▇▇▇▇ CLAIM" shall mean allegations by ▇▇▇▇▇▇ set forth in
its tenant estoppel certified to Keystone dated October 30, 2002, including,
without limitation, the following allegations: that Keystone (i) failed to
repaint the interior walls of Delmar's demised premises at the ▇▇▇▇▇▇ Property
(subject to a maximum obligation of $13,000), (ii) interfered with Delmar's
attempt to sublet or assign its demised premises at the ▇▇▇▇▇▇ Property, and
(iii) overbilled ▇▇▇▇▇▇ for electricity charges at the ▇▇▇▇▇▇
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Property to the date hereof due to improper hookup of utility meters for the
common area electrical facilities.
(ee) "▇▇▇▇▇▇ INDEMNITY" shall mean that certain Indemnity Agreement
dated the date hereof between the Company and Keystone relating to ▇▇▇▇▇▇.
(ff) "▇▇▇▇▇▇ LEASE DEFICIT" shall mean (i) commencing on the first
date ▇▇▇▇▇▇ Rent is not paid by ▇▇▇▇▇▇, fifty percent (50%) of all ▇▇▇▇▇▇ Rent
that would otherwise have been payable to the Company for each month that such
▇▇▇▇▇▇ Rent is unpaid, up to a maximum of twelve months (ii) commencing on the
month that is the thirteenth month of unpaid ▇▇▇▇▇▇ Rent by ▇▇▇▇▇▇, seventy-five
percent (75%) of all ▇▇▇▇▇▇ Rent that would otherwise have been payable to the
Company for each month ▇▇▇▇▇▇ Rent is unpaid, up to a maximum of twelve months
(iii) commencing on the month which is the twenty-fifth month of unpaid ▇▇▇▇▇▇
Rent by ▇▇▇▇▇▇, one hundred percent (100%) of all of all ▇▇▇▇▇▇ Rent that would
otherwise have been payable to the Company for each month ▇▇▇▇▇▇ Rent is unpaid,
up to a maximum of twelve months.
(gg) "▇▇▇▇▇▇ LEASE PAYMENT DEFAULT" shall mean any default by
▇▇▇▇▇▇ in the payment of ▇▇▇▇▇▇ Rent in connection with a ▇▇▇▇▇▇ Claim.
(hh) "▇▇▇▇▇▇ PROPERTY" shall mean the Property located at ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
(ii) "▇▇▇▇▇▇ RENT" shall mean all fixed rent, any additional rent
or any other payments due from ▇▇▇▇▇▇ under the lease dated December 5, 1991, as
amended, between ▇▇▇▇▇▇, as tenant, and Keystone's predecessor-in-interest, as
landlord.
(jj) "DEPRECIATION" shall have the meaning set forth in EXHIBIT D
annexed hereto.
(kk) "DISPOSITION EVENT" shall have the meaning set forth in the
definition of Cash from Sale, Financing or Refinancing.
(ll) "DISSOLUTION EVENT" shall have the meaning set forth in
SECTION 6.1(a) hereof.
(mm) "ELIGIBLE REAL PROPERTY TAXES" shall have the meaning set
forth in Article 1, Section 15, Subsection (e) of the New York Tax Law.
(nn) "FIRST EXTENSION PERIOD" shall have the meaning set forth in
SECTION 2.1(c) hereof.
(oo) "FISCAL YEAR" shall mean the Company's fiscal year, which
shall be the calendar year, or such other taxable year required by the Code or
Treasury Regulations.
(pp) "GAAP" shall be generally accepted accounting principles,
consistently applied, as established by the Financial Accounting Standards
Board, or any successor thereof.
(qq) "GROSS ASSET VALUE" shall have the meaning set forth in
EXHIBIT D annexed hereto.
(rr) "HARTFORD" shall mean the Hartford Fire Insurance Company.
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(ss) "HARTFORD CLAIM" shall mean the allegation by Hartford that
Keystone overbilled Hartford for electricity charges at the Hartford Property in
the amount of $150,000 as set forth in its estoppel certificate dated November
14, 2002.
(tt) "HARTFORD INDEMNITY" shall mean that certain Indemnity
Agreement dated the date hereof between the Company and Keystone relating to
Hartford.
(uu) "HARTFORD LEASE DEFICIT" shall mean (i) commencing on the
first date Hartford Rent is not paid by Hartford, fifty percent (50%) of all
Hartford Rent that would otherwise have been payable to the Company for each
month that such Hartford Rent is unpaid, up to a maximum of twelve months (ii)
commencing on the month that is the thirteenth month of unpaid Hartford Rent by
Hartford, seventy-five percent (75%) of all Hartford Rent that would otherwise
have been payable to the Company for each month Hartford Rent is unpaid, up to a
maximum of twelve months (iii) commencing on the month which is the twenty-fifth
month of unpaid Hartford Rent by Hartford, one hundred percent (100%) of all of
all Hartford Rent that would otherwise have been payable to the Company for each
month Hartford Rent is unpaid, up to a maximum of twelve months.
(vv) "HARTFORD LEASE PAYMENT DEFAULT" shall mean any default by in
the payment of Hartford Rent in connection with a Hartford Claim.
(ww) "HARTFORD PROPERTY" shall mean the Property located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
(xx) "HARTFORD RENT" shall mean all fixed rent, any additional rent
or any other payments due from Hartford under the lease dated May 27, 1993, as
amended, between Hartford, as tenant and Keystone's predecessor-in-interest, as
landlord.
(yy) "INDEMNIFIED PARTY" shall have the meaning set forth in
SECTION 3.6(a) hereof.
(zz) "KEYSTONE INVESTED CAPITAL" shall mean $27,000,000 less any
sums distributed to Keystone and Keystone Investor under SECTION 4.2(b)(ii)
hereof.
(aaa) "LANDMARK GUARANTEE" shall have the meaning set forth in
Section 2.1(d) hereof.
(bbb) "LOAN DOCUMENTS" shall mean documents evidencing and securing
repayment of the Assumed Debt.
(ccc) "MANAGER" shall mean Landmark or its permitted successors and
assignees.
(ddd) "M&T AMORTIZATION DIFFERENCE" shall mean the difference in the
scheduled amortization payments due under the Old M&T Loans and the New M&T
Loans.
(eee) "M&T PROPERTIES" shall mean the ▇▇▇▇▇▇ Property and the
Columbia Property.
(fff) "MAJOR DECISIONS" shall have the meaning set forth in
SECTION 3.2 hereof.
(ggg) "MEMBER'S SHARE OF COMPANY MINIMUM GAIN" shall have the
meaning set forth in EXHIBIT D annexed hereto.
(hhh) "MEMBERS" shall mean Landmark, TSL, Keystone and Keystone
Investor or their permitted assignees.
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(iii) "MEMBERSHIP INTEREST" shall have the meaning set forth in
SECTION 2.3 hereof.
(jjj) "MINIMUM GAIN" shall have the meaning set forth in EXHIBIT D
annexed hereto.
(kkk) "MORTGAGES" shall mean, collectively, all mortgages and/or
deeds of trust on certain of the Properties under the Assumed Debt, to secure
repayment of the Assumed Debt.
(lll) "NEW M&T LOANS" shall mean that certain $5,210,482.33
obligation under the note dated the date hereof evidencing indebtedness under
the mortgage secured by the ▇▇▇▇▇▇ Property together with that certain
$6,808,716.66 obligation under the note dated the date hereof evidencing
indebtedness under the mortgage secured by the Columbia Property.
(mmm) "NET OPERATING INCOME" shall mean the aggregate income from
the relevant Property or Properties, less all Operating Expenses for such
Property or Properties for the relevant period.
(nnn) "OLD M&T LOANS" shall mean that certain $5,210,482.63
obligation under the note dated April 1998 evidencing indebtedness under the
mortgage secured by the ▇▇▇▇▇▇ Property together with that certain $6,808,716.66
obligation under the note dated April 1998 evidencing indebtedness under the
mortgage secured by the Columbia Property.
(ooo) "OPERATING EXPENSES" shall mean all real estate taxes,
insurance premiums and other costs of operating the Properties in accordance
with GAAP (other than debt service), as required in the reasonable judgement of
Manager in order to operate the Properties; PROVIDED, HOWEVER, that for the
purposes of SECTION 4.2(a) hereof, any fees payable to an Affiliate of the
Company shall not be included as Operating Expenses.
(ppp) "PERSON" shall mean any individual person or business entity.
(qqq) "PREFERRED RETURN" shall mean an amount equal to eleven
percent (11%) per annum of the aggregate Keystone Invested Capital, PROVIDED
that after the Shortfall Date, during such time as a Shortfall remains
distributable to Keystone, the rate shall be eighteen percent (18%) per annum of
the aggregate Keystone Invested Capital plus any accrued and unpaid Preferred
Return or other distributions and Shortfall Distributions.
(rrr) "PROFITS AND LOSSES" shall have the meaning set forth in
EXHIBIT D annexed hereto.
(sss) "PROPERTIES" shall have the meaning set forth in the Recitals.
(ttt) "QEZE CREDIT FOR REAL PROPERTY TAXES" shall have the meaning
set forth in Exhibit D annexed hereto.
(uuu) "QEZE REFUND" shall have the meaning set forth in
Section 2.1(d) hereof.
(vvv) "REIT" shall have the meaning set forth in SECTION 3.9 hereof.
(www) "REMAINING MEMBERS" shall have the meaning set forth in
SECTION 6.1(a)(ii) hereof.
(xxx) "RENT DEFICIT AMOUNT" shall have the meaning provided by
Section 4.2(f) hereof.
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(yyy) "SALE PARTICIPATION" shall mean an additional amount to be
distributed with respect to Keystone's and Keystone Investor's Membership
Interest PRO RATA in accordance with their initial Capital Contributions upon a
sale of a Property during the 3-year period following the second anniversary of
the Closing Date, equal to a percentage of the minimum sales price of such
Property as listed in EXHIBIT F hereto. Such percentage shall equal five percent
(5%) in the year following the second anniversary of the Closing Date, three
percent (3%) in the year following the third anniversary of the Closing Date and
one percent (1%) in the year following the fourth anniversary of the Closing
Date. No Sale Participation shall be payable to Keystone or Keystone Investor
with respect to sales of Properties on or after the fifth anniversary of the
Closing Date.
(zzz) "SECOND EXTENSION PERIOD" shall have the meaning set forth in
SECTION 2.1(c) hereof.
(aaaa) "SHORTFALL" shall have the meaning set forth in SECTION 2.1(b)
hereof.
(bbbb) "SHORTFALL DATE" shall have the meaning set forth in
SECTION 4.2(c) hereof.
(cccc) "SHORTFALL DISTRIBUTION" shall have the meaning set forth in
SECTION 2.1(b) hereof.
(dddd) "SHORTFALL NOTICE" shall have the meaning set forth in
SECTION 2.1(b) hereof.
(eeee) "SPECIAL INDEMNITY DAMAGES" shall have the meaning provided in
the Contribution and Sale Agreement.
(ffff) "SUBSIDIARIES" shall have the meaning set forth in the
Recitals.
(gggg) "TAX ACCOUNTANTS" shall mean a firm of independent certified
public accountants with at least ten (10) years of accounting experience for
companies with a similar scope of operations and size as the Company as may be
designated from time to time by the Manager pursuant to this Agreement.
(hhhh) "SUBSTITUTE MEMBER" shall have the meaning set forth in
SECTION 5.2 hereof.
(iiii) "TRANSFER" shall have the meaning set forth in SECTION 5.1
hereof.
(jjjj) "TREASURY REGULATIONS" shall have the meaning set forth in
EXHIBIT D annexed hereto.
(kkkk) "▇▇▇▇▇ FARGO PROPERTIES" means the Properties at 125 Indigo, ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 308 ▇▇▇▇▇▇▇, 400 West Division, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ Circle and 5000 Campus Wood.
The rights and the liabilities of the Members shall be determined pursuant to
the Act and this Agreement. To the extent that the rights or liabilities of any
Member are different by reason of any provision of this Agreement than they
would be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control. In the event of a direct conflict between the
provisions of this Agreement and the provisions of the Act that cannot by
applicable law be changed, altered, amended, or deleted by agreement of the
parties, such provisions of the Act will control.
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1.6 REPRESENTATIONS AND WARRANTIES
Each Member hereby represents and warrants that, as of the date
hereof, such Member's entry into this Agreement and performance of its duties
under this Agreement do not conflict with, result in a breach of or default
under or is not adversely affected by, any existing agreements, instruments,
judgements or decrees to which such Member is a party or by which it or its
assets are bound or any laws or regulations applicable to such Member.
II. CAPITAL CONTRIBUTIONS
2.1 CAPITAL CONTRIBUTIONS
(a) On the Closing Date and subject to the terms and provisions of
this Agreement, (i) Landmark and TSL shall contribute to the Company as a
Capital Contribution all sums necessary (together with any funds borrowed by the
Company at Closing) to permit the Company to fulfill its obligations under the
Contribution and Sale Agreement in the amount of $17,030,000, (ii) Keystone and
its Affiliates shall contribute to the Company as a Capital Contribution, and
the Company shall acquire, all right, title and interest of Keystone in and to
the Contributed Fee Properties and the Subsidiaries subject to, among other
things, $22,100,000 mortgages encumbering the ▇▇▇▇▇ Fargo Properties and the
Assumed Debt, and the amount of Capital Contribution for which Keystone is
credited shall be $23,213,855 on the Closing Date, (iii) the Company shall
assume the Assumed Debt, (iv) Keystone Investor shall contribute $3,786,145 in
exchange for the Keystone Investor's Membership Interest and (v) the Preferred
Return shall begin to accrue. The parties' initial Capital Contributions are set
forth on EXHIBIT E.
(b) If at any time the Company fails to pay fully and timely the
monthly installment of the Preferred Return on or before the fifth day after it
is due or if the Company fails to pay any other distribution to Keystone or
Keystone Investor under this Agreement (including, without limitation, any
distribution to Keystone or Keystone Investor under SECTION 4.2(d)) when due
(any such failure referred to herein as a "SHORTFALL"), then a distribution with
respect to such Shortfall (a "SHORTFALL DISTRIBUTION") shall be immediately
distributable to Keystone and Keystone Investor from the Company. The Shortfall
Distribution shall be equal to five percent (5%) of the unpaid Shortfall.
Shortfall Distributions shall be paid to Keystone and Keystone Investor out of
Cash from Operations and Cash from Sale, Financing or Refinancing as hereinafter
set forth. With respect to unpaid Preferred Return only, Keystone shall give the
Company notice (the "SHORTFALL NOTICE") of the Shortfall on or after the fifth
day the Preferred Return is due; PROVIDED, HOWEVER, that the Shortfall
Distribution shall be distributable on the fifth day after the Shortfall,
regardless of whether the Shortfall Notice has been given to the Company and
PROVIDED, FURTHER, that Keystone shall not be required to give a Shortfall
Notice for the third or subsequent Shortfall during any twelve (12) month
period.
(c) The Company shall have the right to request in writing, within
three (3) business days of Keystone's sending of the Shortfall Notice, thirty
(30) days from the date that the Shortfall Notice was sent (the "FIRST EXTENSION
PERIOD") to distribute the Preferred Return and the Shortfall Distribution to
Keystone and Keystone Investor PROVIDED, HOWEVER, that the Company may exercise
the right to a First Extension Period not more than twice during any twelve (12)
month period. Such response shall set forth the reasons for the occurrence of
the Shortfall and the actions that the Company shall undertake to ensure that
all outstanding Preferred Return and Shortfall Distribution amounts are
distributed to Keystone and Keystone Investor by the expiration of the First
Extension Period. If, on the expiration date of the First Extension Period, the
Company shall have failed to distribute all outstanding Preferred Return and
Shortfall Distribution amounts, the Company shall have the right to a further
extension, effective on such expiration date, by requesting in writing, a
fifteen (15) day extension to the First Extension Period (the
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"SECOND EXTENSION PERIOD") and such request shall set forth the actions that the
Company is taking to ensure that all outstanding Preferred Return and the
Shortfall Distribution amounts shall be distributed to Keystone and Keystone
Investor by the expiration of the Second Extension Period.
(d) Except as set forth in Section 2.1(a), Landmark shall
contribute to the Company as a Capital Contribution all sums refunded to
Landmark by the State of New York with respect to the QEZE Credit for Real
Property Taxes ("QEZE REFUND") within sixty (60) days of Landmark's receipt of
the QEZE Refund. Landmark guarantees to the Company and the Members the payment
of all Eligible Real Property Taxes of the Company for which a QEZE Credit for
Real Property Taxes is received ("LANDMARK GUARANTEE"). The Landmark Guarantee
is for the benefit of the Company and the Members and not for the benefit of any
third party. Neither Landmark nor the Company shall be required to contribute to
the other any QEZE Refund to the extent that Landmark or the Company, as the
case may be, has been required to make payment on the Landmark Guarantee. In the
event, for any reason, the allocation set forth in Section 2.1(c) of Exhibit D
is not respected and any Member other than Landmark receives a QEZE Refund, that
Member shall contribute its QEZE Refund to the Company as a Capital Contribution
within sixty (60) days of the Member's receipt of the QEZE Refund.
(e) None of Landmark, TSL, Keystone or Keystone Investor shall
have any obligation whatsoever under this Agreement to make any Capital
Contribution to the Company other than those expressly provided in
SECTIONS 2.1(a) and 2.1(d) hereof.
2.2 CONDITIONS TO CLOSING
(a) Landmark and Keystone shall be obligated to make the
contributions described in SECTION 2.1(a) hereof and to consummate the sales of
the relevant Fee Properties pursuant to the Contribution and Sale Agreement if
the following conditions have been satisfied:
(i) This Agreement and the Contribution and Sale
Agreements shall have been duly authorized, executed and delivered by all
of the parties thereto; and
(ii) Each of Landmark, Keystone and Keystone Investor shall
have satisfied or caused to be satisfied all other conditions precedent set
forth in this Agreement and the Contribution and Sale Agreement or any such
unsatisfied condition shall have been waived in writing by the Company.
2.3 CAPITAL ACCOUNTS
The Company shall establish an individual capital account for each
Member (a "CAPITAL ACCOUNT"). The Capital Accounts of the Members following the
Closing and related events shall be as set forth on EXHIBIT E attached hereto.
Upon a valid transfer of a Member's interest in the Company ("MEMBERSHIP
INTEREST") in accordance with ARTICLE V hereof, such Member's Capital Account
shall carry over to the new owner. Subject to the preceding sentence, each
Member's Capital Account shall be increased by:
(a) the amount of money contributed by it to the Company,
(b) the fair market value of any property contributed by it to the
Company (net of any liabilities secured by such contributed property that the
Company is considered to assume or take subject to under Section 752 of the
Code), and
(c) allocations to it of Profit and other items of book income and
gain;
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and shall be decreased by:
(a) the amount of money distributed to it by the Company,
(b) the fair market value of property distributed to it by the
Company (net of liabilities secured by such distributed property that such
Member is considered to assume or take subject to under Section 752 of the
Code), and
(c) allocations of Loss and other items of book loss, expense and
deduction.
The foregoing definitions and provisions of EXHIBIT D annexed hereto
relating to the maintenance of Capital Accounts are intended to comply with
Section 704(b) of the Code and the Treasury Regulations thereunder and shall be
interpreted and applied in a manner consistent therewith.
2.4 NO INTEREST
Except as expressly otherwise provided herein, no interest shall be
paid on any Capital Contributions.
2.5 ADMISSION OF ADDITIONAL OR SUBSTITUTE MEMBERS
No Additional Member or Substitute Members may be admitted without the
approval of the Manager, unless otherwise specifically provided herein.
Additional Members and Substitute Members will participate in the management,
Profits and Losses and distributions of the Company on such terms as are
determined by the Manager and the terms of this Agreement.
2.6 WITHDRAWALS OR RESIGNATIONS
(a) Except as set forth in SECTION 5.1 hereof, no Member may
withdraw or otherwise resign from the Company without consent of the Manager.
(b) When the Keystone Invested Capital has been reduced to zero
and no payments due to Keystone or Keystone Investor under this Agreement are
outstanding, Keystone and Keystone Investor shall withdraw as Members and shall
have no further interest in the Company.
2.7 LIMITED LIABILITY
Except as otherwise provided in the Act, the debts, obligations and
liabilities of the Company (whether arising in contract, tort or otherwise)
shall be solely the debts, obligations and liabilities of the Company, and no
Member of the Company (including any Person who formerly held such status) shall
be liable or shall be obligated personally for any such debt, obligation or
liability of the Company. No individual trustee, officer, director, shareholder,
investment manager, member, constituent partner, employee or agent of any entity
Member, in its individual capacity as such, shall have any personal liability
for the performance of any obligation of such Member under this Agreement.
2.8 PAYMENTS TO MEMBERS
Except as specified in this Agreement or pursuant to a transaction
permitted by SECTION 3.7, no Member and no Affiliate of a Member is entitled to
remuneration for services rendered or goods provided to the Company. No payments
may be made to any Member or its Affiliates unless the Preferred Return and any
other amounts distributable to Keystone and Keystone Investor are current.
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III. MANAGEMENT AND CONTROL OF THE COMPANY
3.1 MANAGEMENT AND POWERS
(a) Subject to SECTION 3.9 and any provisions of the Articles and
this Agreement relating to actions required to be approved by the Members, the
overall affairs of the Company shall be managed and all powers of the Company
shall be exercised by or under the direction of the Manager. Landmark shall be
the sole "Manager" of the Company and, except as provided in SECTION 3.1(c), may
be removed as Manager only upon the consent of Keystone (provided that in
connection with admission of new Members under SECTION 5.1(c) or a sale of
Landmark's Membership Interest under SECTION 5.1(d), Lanmark may change the
Manager with the consent of all lenders to the Company where such consent is
required and without the consent of Keystone) or a Member shall be entitled to
cause the Company to remove the Manager for Cause. Except as provided in
SECTION 3.1(c), upon any removal of the Manager, the Members shall appoint a
replacement Manager.
(b) Subject to the limitations set forth in this Agreement,
including, without limitation, SECTION 3.1(a) hereof, the Manager shall be
responsible for the day-to-day activities and management of the Company. Without
limiting the generality of the foregoing, the Manager shall be responsible for
(i) filing such instruments and taking such steps as may be required to cause
the Company to be and to remain qualified to do business and in good standing in
each state and jurisdiction where such qualification is required, (ii)
supervising and overseeing any other companies or entities that have direct
contracts with the Company or which are not otherwise supervised by one of the
foregoing persons or entities, (iii) establishing and monitoring the operational
bank accounts for the Company and (iv) causing the Tax Accountants to file all
local, state and federal tax returns or reports in a timely manner. Manager
shall devote such time and personnel as may be reasonably necessary to fully
perform Manager's duties hereunder.
(c) Notwithstanding anything to the contrary in SECTION 3.1(a),
Keystone shall have the right to remove Landmark as Manager and to become the
replacement Manager:
(i) if the Manager takes any action requiring Keystone's
prior written approval under SECTION 3.1(d) or 3.2 without such approval;
(ii) if a Shortfall arises from any unpaid distribution
under 4.2(b), (c) OR (d);
(iii) if, at any time when a Shortfall arising from
outstanding Preferred Return exists, and (A) the Company shall have failed
to request the First Extension Period within three (3) business days from
the date the Shortfall Notice was sent by Keystone, (B) the Company shall
have failed to distribute all outstanding Preferred Return and Shortfall
Distribution amounts to Keystone by the expiration of the First Extension
Period and the Company shall have failed to request the Second Extension
Period on the expiration date of the First Extension Period, or (C) the
Company shall have failed to distribute all outstanding Preferred Return
and Shortfall Distribution amounts by the expiration of the Second
Extension Period; PROVIDED, HOWEVER that if the Company distributes all
outstanding Preferred Return and Shortfall Distribution amounts to Keystone
and Keystone Investor within ninety (90) days of the Shortfall Date, then
(X) Landmark shall have the right to be reinstated as Manager, except in
the case that TSL and Landmark shall be unable to relieve Keystone of any
and all liabilities, including contingent liabilities that Keystone may
have incurred during such time that it served as Manager, pursuant to (Z)
below, then Landmark shall not have the right to be reinstated as Manager,
(Y) TSL and Landmark shall reimburse Keystone for any and all third-party
expenses it incurs in connection with the removal of Landmark, Keystone
becoming replacement manager and/or the reinstatement of Landmark as
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Manager, (Z) TSL and Landmark shall take all actions necessary to relieve
Keystone of any and all liabilities, including contingent liabilities, that
Keystone may have incurred during such time that it serves as Manager,
PROVIDED, FURTHER that Landmark shall have such right to be reinstated as
Manager only once during any twenty-four (24) month period; and PROVIDED
FURTHER that the first time, if any, that Keystone exercises its right to
become replacement manager pursuant to this SECTION 3.1(c)(iii) it shall
not terminate as Property manager, Pioneer Management Services Company,
LLC, selected pursuant to SECTION 3.8(a) until the day after the day that
is ninety (90) days after the Shortfall Date; or
(iv) Landmark shall have defaulted on the Landmark
Guarantee.
(d) Notwithstanding anything to the contrary in this Agreement, at
any time after a Shortfall Date, when a Shortfall is outstanding, the Manager
must receive Keystone's written consent to require the Company to take all of
the following actions:
(i) any sale or disposition of one or more Properties;
(ii) any leasing arrangements for one or more of the
Properties;
(iii) replacement of any property manager for any of the
Properties;
(iv) any contract for services that cannot be cancelled
with thirty (30) days notice, or any contract involving consideration of
$10,000 or more; and
(v) any financing or refinancing of, or agreement to
finance or refinance, any Company indebtedness.
(e) At any time that Keystone shall be the Manager pursuant to
SECTION 3.1(c) hereof, Keystone shall not make distributions of Cash from
Operations or Cash from Sale, Financing or Refinancing to Keystone or Keystone
Investor, other than payments of any accrued but unpaid Preferred Return, unpaid
Shortfall or Shortfall Distribution and Sale Participation due to Keystone or
Keystone Investor unless Landmark shall no longer be entitled to distributions
hereunder pursuant to SECTION 4.2(c) hereof.
3.2 MAJOR DECISIONS
All of the following shall be deemed "MAJOR DECISIONS", which shall
require prior written approval of Keystone if any action is required of the
Company:
(a) any act which would make it impossible or would significantly
impair the ability of the Company to carry on the ordinary business of the
Company;
(b) any financing or refinancing of Company indebtedness that does
not result in the immediate distribution to Keystone and Keystone Investor of
all amounts required to be paid to Keystone and Keystone Investor under
SECTION 4.2(b), (c), and (d), other than (i) a refinancing of indebtedness on a
Property of an amount equal to or less than the outstanding balance of the debt
on such Property to be refinanced, with respect to which the Company has used
commercially reasonable efforts to have the loan documents relating to such new
indebtedness provide that the exercise by Keystone of its rights and remedies
under SECTIONS 3.1(c) and 4.2(c) shall not cause a default or an event of
default or constitute a transfer of interests permitting lender to accelerate
such loan PROVIDED, that if such refinancing is more than 90 days prior to the
maturity of the indebtedness existing on such Property, the interest rate on the
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refinancing at the time of refinancing must be at a rate equal to or lower than
the interest rate on the existing indebtedness; and (ii) one refinancing of each
▇▇▇▇▇ Fargo Property which is non-recourse except for customary carveouts
secured only by such properties and, if required by the lender for such
refinancing, further secured by a second priority lien against the Property
located at One Park Place, Syracuse, New York ("ONE PARK PLACE"), and made by a
qualified lender as defined in SECTION 5.1; and (iii) by (but no later than) the
180th day after Closing, the indebtedness on One Park Place may be refinanced
through an institutional lender at a principal amount up to seventy-seven and
one half percent (77.5%) of the then current appraised value of such Property,
provided that such refinancing, which shall be secured by a first priority lien
against One Park Place, shall not be cross-collateralized with any financing or
refinancing on any other Property;
(c) incurring debt on behalf of the Company in violation of the
Loan Documents;
(d) causing the Company to purchase and/or enter into any contract
to purchase any real property;
(e) unless approved or deemed approved by a lender under the Loan
Documents or under any other mortgage encumbering the relevant Property,
entering any lease (i) covering more than 10,000 square feet of office space, or
(ii) covering more than 50,000 square feet of industrial space, or (iii)
providing for more than $250,000 of rent and other consideration over the term
of the lease;
(f) except as permitted under the Loan Documents or under any
other mortgage encumbering the relevant Property, allowing the Company to cancel
or permit to lapse any insurance for the Properties (unless replaced immediately
by comparable coverage);
(g) amending the Articles or this Agreement;
(h) causing the Company to grant any liens, pledges, mortgages,
assignments or other encumbrances to any Person with respect to all or any
portion of the Properties or other assets of the Company other than as provided
in the Loan Documents or in this Agreement;
(i) causing the Company to make distributions of its cash or
property to a Member except as set forth in this Agreement;
(j) permitting modification adverse to Keystone or Keystone
Investor (including particularly reducing scheduled amortization) of any Loan
Documents or other documents governing the Company's debt, PROVIDED that
modification may be made to Industrial Development Authority documents; and
(k) causing the Company to dissolve or liquidate or to cease to be
in good standing in any state or jurisdiction in which the Company is required
to be qualified.
After a Shortfall Date, whenever a Shortfall is distributable to
Keystone or Keystone Investor pursuant to SECTION 2.1(b) hereof, Keystone shall
have the unilateral right to require the Company to take any of the actions set
forth in SECTION 3.2(d), (e), (i), and (j), PROVIDED that distributions made
under SECTION 3.2(i) shall be distributions of cash only, not property, and only
to the extent of unpaid Shortfall, Shortfall Distributions and Preferred Return,
PROVIDED, HOWEVER, that such unilateral right of Keystone shall terminate upon
the payment in full to Keystone of all outstanding Shortfalls and Shortfall
Distributions unless Landmark is no longer entitled to distributions hereunder
pursuant to SECTION 4.2(c) hereof.
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3.3 MEMBER APPROVAL
When meetings of the Members are held, such meetings shall be noticed,
held and conducted pursuant to the Act. All meetings will be held in the
Manager's offices unless another location is designated by Manager or such
meetings are held by telephone. In any instance in which the approval of the
Members is required under this Agreement, such approval may be obtained in any
manner permitted under the Act. Unless otherwise provided in this Agreement,
approval of the Members shall mean the approval of all of the Members.
3.4 DEVOTION OF TIME
Manager shall devote whatever time and effort it deems appropriate for
the furtherance of the Company's business.
3.5 COMPETING ACTIVITIES
Subject to the provisions of SECTION 3.7 hereof, the Members and their
Affiliates may engage or invest in any activity, including, without limitation,
those that might be in direct or indirect competition with the Company. Neither
the Company nor any other Member shall have any right in or to such other
activities or to the income or proceeds derived therefrom. No Member shall be
obligated to present any investment opportunity to the Company, even if the
opportunity is of the character that, if presented to the Company, could be
taken by the Company. Each Member shall have the right to hold any investment
opportunity for its own account or to recommend such opportunity to persons
other than the Company. Each Member acknowledges that the Members and their
Affiliates own and/or manage other businesses, including businesses that may
compete with the Company and for the Members' time. Each Member hereby waives
any and all rights and claims which it may otherwise have against the other
Members and their Affiliates as a result of any of such activities. Each Member
acknowledges that the Members and their Affiliates may own and/or manage
properties that are in the same geographic market area as one or more of the
Properties and the Members agree that the activities of such Member and its
Affiliates shall not entitle the Company or another Member to any right, title
or interest in such properties nor shall such activities be deemed an
opportunity of the Company or any other Member.
3.6 INDEMNIFICATION
(a) Except as set forth in SECTION 3.6(f) below, the Company, its
receiver and/or its trustee shall, to the extent permitted by law, indemnify,
defend, save harmless and pay all judgments and claims against the Manager, the
Members, and their Affiliates, including, without limitation, each of the
Manager's, and Company's officers, directors, investment managers, shareholders,
members, managers, constituent partners, employees, attorneys, accountants and
agents (collectively and individually, the "INDEMNIFIED PARTY" and the
"INDEMNIFIED PARTIES") from any and all claims, losses, costs, damages,
liabilities and expenses of any kind whatsoever, including, without limitation,
actual attorneys' fees and court costs (which shall be paid as incurred) and
liabilities under state and federal securities laws (to the extent permitted by
law) that may be made or imposed upon or incurred by any Indemnified Party by
reason of any act performed (or omitted to be performed) for or on behalf of the
Company, or in furtherance of or in connection with the Company business.
(b) In the event of any action by a Member against any of the
Indemnified Parties, including a derivative suit against the Company, the
Company shall indemnify, defend, save harmless and pay all expenditures of the
Indemnified Parties, including actual attorneys' fees incurred in the defense of
such action.
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(c) None of the Indemnified Parties shall be liable to the Members
or to the Company for any loss resulting from errors made by any of the
Indemnified Parties in good faith or from such acts or omissions, whether or not
disclosed, unless such acts or omissions constitute fraud, willful misconduct or
gross negligence by the Indemnified Parties in question or which constitute a
breach by the Indemnified Parties in question of any agreement between such
party and the Company or the indemnifying parties, including, without
limitation, this Agreement and the Contribution and Sale Agreements.
(d) In the event of any action against any of the Indemnified
Parties that is covered by the indemnity provided in this SECTION 3.6, the
Company shall advance the costs and expenses of such Indemnified Party to the
Indemnified Party as the costs and expenses are incurred, PROVIDED that the
Company receives a written undertaking from the Indemnified Party to repay such
amounts in the event that it is determined by a court of competent jurisdiction,
or as a result of the settlement of such matter, that the Indemnified Party was
not entitled to such indemnity or the Indemnified party committed fraud, willful
misconduct, or gross negligence. If any Indemnified Party shall be required to
repay to the Company any sums it has received pursuant to this SECTION 3.6 and
shall have failed to make such repayment within sixty (60) days after receiving
written demand therefor from the Company, then the Company shall have the right
to offset any such unrepaid amount against all future sums otherwise
distributable to such Member related to such Indemnified Party until the Company
has received such repayment in full and any amounts so offset against future
distributions shall be deemed to have been distributed to such Member under this
Agreement.
(e) The Company's obligations to indemnify, defend and save
harmless under this SECTION 3.6 shall not obligate, or impose personal liability
on, any of the Members or any of their directors, shareholders, investment
managers, members, managers, constituent partners, officers, employees,
attorneys, accountants or agents.
(f) The Company shall have no obligation to indemnify, defend or
save harmless (i) any Member for any claim or action brought against such Member
by such Member's equity owners or investors or (ii) any Member, the Manager or
their Affiliates for any acts or omissions after the same are determined by a
court of competent jurisdiction to constitute fraud, willful misconduct or gross
negligence or for which indemnification is not permitted by applicable law.
3.7 TRANSACTIONS BETWEEN THE COMPANY AND THE MEMBERS
Notwithstanding that it may constitute a conflict of interest, the
Members and their Affiliates may engage in any transaction with the Company so
long as such transaction is (a) disclosed in detail in writing and delivered to
the Company and the other Members, and (b) the terms and conditions of such
transaction, on an overall basis, are fair and reasonable to the Company and are
at least generally as favorable to the Company as those that are generally
available from persons capable of similarly performing them.
3.8 PROPERTY MANAGER; INSURANCE
(a) Unless it receives Keystone's prior written consent the
Manager may only select Pioneer Management Services Company, LLC and/or American
Landmark Properties, Ltd., an Affiliate of the Company, to serve as the manager
or managers of the Properties and the Manager may provide such property manager
or managers an aggregate property management fee of up to four percent (4%) of
gross annual receipts of the Properties PROVIDED, HOWEVER, that no more than two
percent (2%) of gross annual receipts of the Properties may be paid as a
property management fee to a Person that is not an Affiliate of the Company; and
PROVIDED FURTHER, that the contract with any property manager selected
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under this SECTION 3.8(a) shall not impose any penalty against the Company in
the event that such contract is terminated following Keystone becoming the
replacement Manager pursuant to SECTION 3.1(c).
(b) The Company shall maintain insurance covering the Properties
(i) to the extent required by the Loan Documents or other mortgages encumbering
the Properties or (ii) if unencumbered, to the extent and of types as are
typical of owners of comparable properties where such Property is located.
3.9 REAL ESTATE INVESTMENT TRUST CONSIDERATIONS
Notwithstanding anything contained herein to the contrary, so long as
Keystone and Keystone Investor or an Affiliate of Keystone or Keystone Investor
(or a successor to Keystone's or Keystone Investor's interest in the Company),
that has elected to be a real estate investment trust as defined in the Code
(herein referred to as the "REIT") holds a direct or indirect interest in the
Company, unless waived in writing by the REIT, the parties hereto, and their
respective successors and assigns, shall conduct their operations in a manner
that shall permit the REIT to continue to qualify as a real estate investment
trust under Sections 856 through and including Section 860 of the Code and
Treasury Regulations thereunder, as amended, and under other applicable
provisions of the Code and the Treasury Regulations thereunder and would not
subject the REIT to any additional taxes under Section 857 or 4981 of the Code.
In accordance with the preceding sentence:
(a) any person, including any property manager or leasing agent,
rendering services to a lessee or sublessee of all or any part of the Properties
shall be an independent contractor with respect to the REIT within the meaning
of Code Section 856(d)(3) from whom the REIT does not derive or receive any
income or a taxable REIT subsidiary of the REIT except as may be permitted by
Section 856(d)(7)(C)(iii) of the Code and the Treasury Regulations thereunder;
(b) any management or leasing agreement entered into by the
Company shall comply with the terms and provisions of this SECTION 3.9;
(c) the REIT shall not, by virtue of its indirect ownership of an
interest in the Company, own, directly or indirectly, or by attribution (in
accordance with the attribution rules referred to in Section 856(d)(5) of the
Code), in the aggregate, ten percent (10%) or more of all classes of stock, ten
percent (10%) or more of the voting power or ten percent (10%) or more of the
assets or net profits of a lessee or sublessee of all or any part of the
Properties;
(d) the leases or subleases of all or any part of the Properties
shall not provide for rents based in whole or in part on the income or profits
(within the meaning of Code Section 856(d)(2)(A)) derived by any tenant or
subtenant from all or any part of the Properties;
(e) rents under a lease or sublease of all or any part of the
Properties attributable to personal property leased or subleased under or in
connection with such lease or sublease shall not exceed fifteen percent (15%) of
the total rents payable under or in connection with such lease or sublease for
each taxable year;
(f) the Company's assets shall not include securities (except
governmental securities) if such would consist of more than twenty-five percent
(25%) of the value of the assets of the Company;
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(g) the Company's assets shall not include securities if more than
five percent (5%) of the value of the assets of the Company would then consist
of securities of any one issuer (except for governmental securities);
(h) the Company's assets shall not include securities if the
Company would then own more than ten percent (10%) of the voting power of the
outstanding securities any one issuer (except for governmental securities); and
(i) the Company's assets shall not include securities if the
Company would then own securities having a value of more than ten percent (10%)
of the total value of the outstanding securities of any one issuer (except for
governmental securities).
IV. ALLOCATIONS OF PROFITS AND LOSSES AND DISTRIBUTIONS
4.1 TAX AND ACCOUNTING MATTERS
The provisions of EXHIBIT D attached hereto and incorporated herein
for all purposes provide for allocation of Profits and Losses and certain
definitions related thereto.
4.2 DISTRIBUTIONS BY THE COMPANY
(a) Cash from Operations for the preceding calendar month (less
any payments on the Assumed Debt, including, without limitation, principal,
interest and any escrow payments due under the Loan Documents) shall be
distributed to Keystone and Keystone Investor, PRO RATA in accordance with their
initial Capital Contributions, on the fifth day of each month until all accrued
and unpaid Preferred Return and any unpaid Shortfall and Shortfall Distribution
has been distributed and the balance, if any, may be distributed to any Member
or Members from time to time in the Manager's sole discretion.
(b) Cash from Sale, Financing or Refinancing of any or all of the
Properties (other than the refinancing of One Park Place or the ▇▇▇▇▇ Fargo
Properties permitted under SECTION 3.2(b), which may be distributed under (iii)
below), shall be distributed (less any payments on the Assumed Debt, including,
without limitation, principal, interest and any escrow payments due under the
Loan Documents), immediately upon receipt by the Company, as follows:
(i) FIRST, to Keystone and Keystone Investor, PRO RATA in
accordance with their initial Capital Contributions, until all accrued and
unpaid Preferred Return, and any unpaid Shortfall and Shortfall
Distribution has been paid in full;
(ii) SECOND, to Keystone and Keystone Investor, PRO RATA in
accordance with their initial Capital Contributions, until (A) in the case
of the sale or refinance of less than all of the Properties the minimum
sales price for such Properties as listed in EXHIBIT F hereto and any Sales
Participation has been paid to Keystone or (B) the Keystone Invested
Capital has been reduced to zero; and
(iii) THIRD, the balance, if any, may be distributed to any
Member or Members from time to time in the Manager's sole discretion.
(c) Notwithstanding anything to the contrary in this Agreement, in
the event that (i) a Shortfall and Shortfall Distribution has become due and
payable (the date on which such Shortfall and Shortfall Distribution becomes due
and payable, the "SHORTFALL DATE") and has not been paid in full within ninety
(90) days after the Shortfall Date, or (ii) Landmark has defaulted on the
Landmark Guarantee, then
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all distributions under SECTION 4.2 shall be payable to Keystone and Keystone
Investor, and Landmark and TSL shall not be entitled to any further
distributions hereunder.
(d) Notwithstanding anything to the contrary in this Agreement, on
or after December 1, 2008, Keystone shall have the right to cause the Company to
distribute Cash from Operations and Cash from Sale, Financing or Refinancing to
Keystone and Keystone Investor (including the right to require the Company to
sell, finance or refinance any Property or Properties) in such amount as
necessary to reduce the Keystone Invested Capital to zero.
(e) Notwithstanding anything to the contrary in this Agreement, in
the event that any Special Indemnity Damages shall be due and payable to the
Company, the Company shall have the right to require such damages be retained by
the Company to the extent of Cash from Operations or Cash from Sale, Financing
or Refinancing in priority to any payments due to Keystone and Keystone Investor
under this SECTION 4.2 until such Special Indemnity Damages have been fully
repaid and such payment shall be considered to be a distribution to Keystone and
a payment of the Special Indemnity by Keystone to the Company.
(f) Notwithstanding anything to the contrary in this Agreement,
until the respective expirations of the ▇▇▇▇▇▇ Indemnity and the Hartford
Indemnity, for such periods, if any, that a ▇▇▇▇▇▇ Lease Payment Default or a
Hartford Lease Payment Default exists and remains uncured, the Company shall
have the right to retain amounts equal to the ▇▇▇▇▇▇ Lease Deficit and/or
Hartford Lease Deficit, as the case may be, otherwise distributable to Keystone
under SECTION 4.2(b)(i) pursuant to the terms of the ▇▇▇▇▇▇ Indemnity and the
Hartford Indemnity, respectively. In the event that the Company receives any
unpaid ▇▇▇▇▇▇ Rent or Hartford Rent, as the case may be, by or on behalf of
▇▇▇▇▇▇ or Hartford, respectively, then the Company shall immediately distribute
to Keystone (i) with respect to the portion of such rent attributable to the
period commencing on the first date ▇▇▇▇▇▇ Rent or Hartford Rent, as the case
may be, is not paid, until the end of the twelfth month thereafter, fifty
percent (50%) of such amount received, (ii) with respect to the portion of such
rent attributable to the period commencing on the first day of the thirteenth
month after the first date ▇▇▇▇▇▇ Rent or Hartford Rent, as the case may be, is
not paid, until the end of the twelfth month thereafter, seventy-five percent
(75%) of such amount received and (iii) with respect to the portion of such rent
attributable to the period commencing on the first day of the twenty-fifth month
after the first date ▇▇▇▇▇▇ Rent or Hartford Rent, as the case may be, is not
paid, one hundred percent (100%) of such amount received. Upon the receipt of a
final court order or judgment rendered by a court of competent jurisdiction on a
Claim made by ▇▇▇▇▇▇ or Hartford, as the case may be, in an amount less than the
aggregate amount of the unpaid ▇▇▇▇▇▇ Rent or Hartford Rent, as the case may be,
then Keystone shall be obligated to pay any shortfall in respect of such ▇▇▇▇▇▇
Rent or Hartford Rent attributable to such Claim (the "RENT DEFICIT AMOUNT"), in
the manner prescribed by Section 3(a) of the ▇▇▇▇▇▇ Indemnity or Hartford
Indemnity, as the case may be, PROVIDED, HOWEVER, that if Keystone fails to pay
the Rent Deficit Amount, within the fifteen (15) day period required by the
▇▇▇▇▇▇ Indemnity or the Hartford Indemnity, as the case may be, then the Company
may immediately take an offset for the Rent Deficit Amount from retained
distributions and shall have the right to offset from future distributions
required to be paid to Keystone pursuant to SECTION 4.2(b)(i) hereof for any
deficiency between the retained distribution offset by the Company and the Rent
Deficit Amount. To the extent the Rent Deficit Amount for such Claim is less
than the retained distribution, the Company shall offset the Rent Deficit Amount
from retained distribution and shall pay to Keystone within the same fifteen
(15) day period any retained distributions remaining after such offset. In the
event that a final court order or judgment finds both Keystone and one or more
of the other persons indemnified under the ▇▇▇▇▇▇ Indemnity or the Hartford
Indemnity, as the case may be, responsible for liability under the action or
proceeding but does not allocate liability between the parties, then prior to
the date that the Rent Deficit Amount with respect to the ▇▇▇▇▇▇ Rent or the
Hartford Rent, as the case may be, is payable and prior to the effectiveness of
any offset rights, the parties shall mutually submit such issue to arbitration
to be
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finally determined by arbitration in the City of New York in accordance with the
rules and regulations then obtaining of the American Arbitration Association or
its successor; any such determination shall be final and binding upon the
parties, whether or not a judgment shall be entered in any court. The parties
may, at their own expense, be represented by counsel and employ expert witnesses
in any such arbitration, and the parties shall share all other expenses and fees
of any such arbitration. Notwithstanding the foregoing, subject to certain
conditions set forth in the Hartford Indemnity, the Company shall also have the
right to suspend the retention of distributions from Keystone pursuant to the
terms of Section 2(c) of the Hartford Indemnity and to reinstate the retention
of distributions pursuant to the terms of Section 3(b) of the Hartford
Indemnity.
(g) Notwithstanding anything to the contrary in this Agreement,
the Company shall have the right to retain amounts equal to the M&T Amortization
Difference on scheduled loan payments otherwise distributable to Keystone and
Keystone Investor under SECTION 4.2(b)(i), PROVIDED THAT any right that the
Company may have to retain amounts equal to the M&T Amortization Difference for
the ▇▇▇▇▇▇ Property or the Columbia Property, as the case may be, shall
terminate upon the occurrence of (i) the sale, by the Company, of the ▇▇▇▇▇▇
Property or the Columbia Property, as the case may be, (ii) the payment in full
of the obligations under the New M&T Loans relating to such Property, or (iii)
the sale, by the Company, of any Property at a price that is greater than the
minimum sales price for such Property as listed on EXHIBIT F hereto and,
PROVIDED FURTHER, notwithstanding anything to the contrary in this Agreement,
(x) upon the occurrence of (i) or (ii) above, all amounts retained by the
Company in respect M&T Amortization Difference for such Property shall be
immediately returned to Keystone and (y) upon the occurrence of (iii) above,
fifteen percent (15%) of all amounts greater than the minimum sales price for
such Property as listed on EXHIBIT F hereto received by the Company shall be
immediately distributed to Keystone.
V. TRANSFER AND ASSIGNMENT OF INTERESTS; SALE OF PROPERTIES
5.1 TRANSFER AND ASSIGNMENT OF INTERESTS
Except as otherwise expressly provided herein, no Member shall,
directly or indirectly (including transfers of interests in Members), transfer
(by sale, exchange, assignment, gift or other disposition) or in any way
alienate all or any part of its Membership Interest or any interest in any of
the Properties (each, a "TRANSFER" and collectively, "TRANSFERS") without the
prior written approval of all Members; PROVIDED, HOWEVER, subject to the
restrictions of, and only to the extent permitted under, the Loan Documents, (a)
any Member may transfer all or a portion of its Membership Interest so long as
there is no change of Control of the Manager; PROVIDED HOWEVER, that so long as
Keystone or Keystone Investor shall be a Member, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇ and/or entities owned and controlled by them or members of their
immediate family may not transfer more than forty-nine (49%) of their respective
beneficial ownership interest in the Company as of the date hereof, (b) Members
may pledge or encumber all or any portion of its Membership Interest to any
qualified lender who makes a bona fide loan thereon, (c) additional members may
be admitted to the Company or to Landmark after the date hereof, (d) Landmark
may transfer or otherwise assign its Membership Interest so long as the holders
of the Assumed Debt and other mortgage indebtedness on the Properties and
Keystone consent to such transfer, such consent of Keystone not to be
unreasonably withheld (and shall be automatically granted if the holders of the
Assumed Debt and other mortgage indebtedness on the Properties so consent), and
the Company makes a special distribution to Keystone and Keystone Investor, PRO
RATA in accordance with their initial Capital Contribution, equal to one percent
(1%) of the Keystone Invested Capital, (e) the restrictions on transfers set
forth in this ARTICLE V shall not apply to sales or issuances of shares of
capital stock of a REIT or to any merger, consolidation or sale of all or
substantially all of the assets or stock of a REIT, and (f) the restrictions on
transfers set forth in this ARTICLE V shall not apply to the sale or issuance
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of partnership interests of Keystone or to any merger, consolidation or sale of
all of the assets or partnership interests of Keystone. For purposes of this
SECTION 5.1, a "QUALIFIED LENDER" is an institutional lender or other financial
institution with assets in excess of $5 billion. In the event of any transfer
permitted hereunder, the transferring Member shall provide written notice of
such transfer to all of the Members and take commercially reasonable steps so as
to minimize, if practical, the possibility of termination under Section 708 of
the Code.
5.2 SUBSTITUTION OF MEMBERS
A transferee of a Membership Interest shall have the right to become a
substitute Member (a "SUBSTITUTE MEMBER") only if (a) such transfer is permitted
under SECTION 5.1, (b) such Person executes a legally binding instrument
accepting and adopting all of the terms and provisions of this Agreement, and
(c) such Person pays any reasonable expenses actually incurred by the Company in
connection with the admission of a new Member. The admission of a Substitute
Member shall not release the Member who assigned the Membership Interest from
any liability that such Member may have to the Company.
5.3 TRANSFERS IN VIOLATION OF THIS AGREEMENT
A purported transfer in violation of this ARTICLE V shall be deemed
null and void and the transferee shall have no right to vote or participate in
the management of the Company or to exercise any rights of a Member.
5.4 SALE OF THE PROPERTIES
The Company may not sell or otherwise dispose of any Property until
the second anniversary of the Closing Date. From and after the two (2) year
anniversary of the Closing Date, the Manager may require the Company to sell
some or all of the Properties at any time so long as either (i) the Keystone
Invested Capital has been reduced to zero or (ii) the sales price for each of
the Properties to be sold is equal to or greater than the minimum sales price
for such Property set forth in EXHIBIT F hereto plus the Sale Participation, if
any, and the Properties that the Company would continue to own following such
sale would meet the Cashflow Coverage Requirement, PROVIDED, HOWEVER
notwithstanding anything to the contrary in SECTION 4.2, when the next sale of a
Property or Properties would reduce the Keystone Invested Capital to $12,500,000
or less, such sale of a Property or Properties must reduce the Keystone Invested
Capital to zero and, PROVIDED FURTHER, that if a Property is sold pursuant to
(ii), above, then the minimum sales price for such Property shall be distributed
to Keystone and Keystone Investor pro rata in accordance with their initial
Capital Contributions pursuant to SECTION 4.2(b), hereof and the Keystone
Invested Capital shall be adjusted accordingly. Notwithstanding anything in this
SECTION 5.4 above to the contrary, the Company may sell or otherwise dispose of
the Property located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇ COLUMBIA") at
any time prior to the two (2) year anniversary of the Closing Date, PROVIDED
THAT if 9 Columbia is sold pursuant to this sentence, the minimum sales price
set forth in EXHIBIT F hereto shall be distributed to Keystone and Keystone
Investor PRO RATA in accordance with their initial Capital Contributions
pursuant to Section 4.2(b) hereof (and no Sale Participation shall be due) and
the Keystone Invested Capital shall be adjusted accordingly. Keystone may
reallocate the sales prices set forth on EXHIBIT F (i) prior to Closing or (ii)
in the event One Park Place is refinanced as contemplated in SECTION 3.2(b) and
shall deliver a copy of a revised EXHIBIT F to Landmark within 60 days after the
event permitting reallocation.
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VI. DISSOLUTION AND WINDING UP
6.1 DISSOLUTION AND WINDING UP
(a) The Company shall be dissolved upon the occurrence of any of
the following events:
(i) Expiration of the term of the Company set forth in
SECTION 1.2.
(ii) Bankruptcy, dissolution or resignation of a Member (a
"DISSOLUTION EVENT") unless, within 90 days after the date of such event,
the remaining Members ("REMAINING MEMBERS") state their willingness in
writing to continue the business of the Company and the Company will
continue to be treated as a partnership for federal income tax purposes
under the laws then existing, and, if the bankruptcy, dissolution or
withdrawal is with respect to the Manager, the Remaining Members also
agree, in writing, to become effective as of the date of such event, a new
Manager which shall agree in writing to act as Manager and to the terms of
this Agreement;
(iii) Entry of a decree of judicial dissolution under the
Act; or
(iv) The sale of all of the Properties, repayment of the
Assumed Debt and distribution of the Cash from Sale, Financing or
Refinancing.
(b) Except as set forth in SECTION 6.1(a), no event that causes a
Member to cease to be a member of the Company shall in and of itself cause a
dissolution of the Company.
(c) Dissolution of the Company shall be effective on the date on
which an event requiring dissolution or liquidation of the Company occurs, but
the Company shall not terminate until the assets of the Company shall have been
distributed as provided below and the Certificate of Formation of the Company
shall have been cancelled in accordance with the Act.
(d) Upon dissolution, the Manager or, if there is no Manager but
there are Remaining Members, such Remaining Members shall liquidate the assets
of the Company, and allocate and distribute the proceeds, in cash, in the
following order of priority:
(i) First, to the satisfaction of creditors of the Company
to the extent otherwise permitted by law, in satisfaction of the
liabilities of the Company (whether by payment or the making of reasonable
provision for payment thereof);
(ii) Second, to the payment of all debts, liabilities and
other obligations owed to Affiliates of the Company; and
(iii) Third, in accordance with SECTION 4.2(b) hereof.
(e) The parties intend that the allocation provisions contained in
this Agreement shall produce final Capital Account balances of the Members that
will permit liquidating distributions to be made to the Members in accordance
with their final Capital Account balances pursuant to this SECTION 6.1 and in a
manner identical in amount to and in the order of priorities contained in
SECTION 4.2(b) hereof.
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(f) Notwithstanding the dissolution of the Company, prior to
termination of the Company, the business of the Company and the affairs of the
Members in relation to the Company shall continue to be governed by this
Agreement.
VII. ACCOUNTING, RECORDS, REPORTING BY MEMBERS
7.1 BOOKS AND RECORDS
The books and records of the Company shall be kept by the Manager in
accordance with GAAP. The Manager shall instruct the Accountants to prepare
annual financial statements of the Company and to transmit such statements to
the Members within ninety (90) days following the end of each calendar year (or
such earlier time as may be required to permit the Members to comply with any
applicable regulatory reporting requirements). The Manager will deliver
quarterly financial statements on a cash basis including a quarterly report
showing outstanding receivables and payables which will include an aging of said
receivables and payables within thirty (30) days after the end of the quarter
(or such earlier time as may be required to permit the Members to comply with
any applicable regulatory reporting requirements). The quarterly and annual
reports will be certified by the Manager as true and accurate in all material
respects. The Company shall maintain at its principal office all of the
following, all of which shall be made available for inspection by all Members
upon reasonable prior notice:
(a) a current list of the full name and last known business or
residence address of each Member set forth in alphabetical order, together with
the Capital Contributions, Capital Account and Membership Interest of each
Member;
(b) a copy of the Articles and any and all amendments thereto
together with executed copies of any powers of attorney pursuant to which the
Articles or any amendments thereto have been executed;
(c) copies of the Company's federal, state, and local income tax
or information returns and reports, if any, for at least the five (5) most
recent taxable years;
(d) a copy of this Agreement and any and all amendments thereto
together with executed copies of any powers of attorney pursuant to which this
Agreement or any amendments thereto have been executed;
(e) copies of the financial statements of the Company, if any, for
at least the three (3) most recent fiscal years; and
(f) the Company's books and records as they relate to the internal
affairs of the Company, if any, for at least the current and past five (5)
fiscal years.
7.2 RETURNS AND REPORTS
The Tax Accountants shall prepare the federal, state and local tax
returns for the Company and the Company shall cause to be filed, in accordance
with the Act, all reports and documents, including, without limitation, all tax
and/or information returns, required to be filed with any governmental agency,
department or division thereof and each Member shall be provided copies of such
tax returns at least ten (10) business days prior to the required filing date
and shall have the opportunity to review and comment upon such tax returns,
PROVIDED that Keystone shall have five (5) business days to review and comment
upon such tax returns. The Company shall cause to be prepared at least annually
information concerning the Company's operations necessary for the completion of
the Members' federal
- 23 -
and state income tax returns. The Company shall instruct the Tax Accountants to
prepare and send to each Member within seventy-five (75) days after the end of
each taxable year (or such earlier time as may be required to permit the Members
to comply with any applicable regulatory reporting requirements) (a) such
information as is necessary to complete the Members' federal and state income
tax or information returns and (b) a copy of the Company's federal, state, and
local income tax or information returns for the year.
7.3 BANK ACCOUNTS
(a) Manager shall maintain the funds of the Company in one or more
separate bank accounts in the name of the Company, and shall not permit the
funds of the Company to be commingled in any fashion with the funds of any other
Person. Manager, acting alone, is authorized to endorse checks, drafts, and
other evidences of indebtedness made payable to the order of the Company, but
only for the purpose of depositing the same into the Company's accounts. All
checks, drafts, and other instruments obligating the Company to pay money may be
signed by Manager, acting alone and Manager shall utilize the funds in such
accounts to pay the Company's expenses and costs.
(b) Manager shall maintain the Company's funds in deposit accounts
at a bank or banks that insure deposits through the Federal Deposit Insurance
Corporation. Manager may invest funds of the Company in time deposits, short
term governmental obligations or commercial paper, PROVIDED, HOWEVER, that such
commercial paper shall be rated AA or better by Standard & Poor's.
7.4 TAX MATTERS FOR THE COMPANY
(a) Landmark is designated as "Tax Matters Partner" (as defined in
Code Section 6231) to represent the Company, at the Company's expense, in
connection with all examination of the Company's affairs by tax authorities;
PROVIDED, HOWEVER, that the Tax Matters Partner may not bind Keystone or
Keystone Investor in connection therewith or in any manner without Keystone's
consent and shall provide Keystone notice in a manner and at such time as is
sufficient to allow Keystone to exercise the rights under Section 6204 of the
Code.
(b) Except as otherwise provided in this Agreement or EXHIBIT D
annexed hereto, any tax elections to be made by the Company pursuant to the Code
or any provision of state or local law shall be made jointly by the Members
taking into account the best interests of the Members.
VIII. MISCELLANEOUS
8.1 COMPLETE AGREEMENT
This Agreement constitutes the complete and exclusive statement of
agreement among the Members with respect to the subject matter herein and
therein and replaces and supersedes all prior written and oral agreements among
the Members.
8.2 BINDING EFFECT
Subject to the provisions of this Agreement relating to
transferability, this Agreement will be binding upon and inure to the benefit of
the Members, and their respective successors and assigns.
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8.3 INTERPRETATION
All pronouns shall be deemed to refer to the masculine, feminine, or
neuter, singular or plural, as the context in which they are used may require.
All headings herein are inserted only for convenience and ease of reference and
are not to be considered in the interpretation of any provision of this
Agreement. Numbered or lettered articles, sections and subsections herein
contained refer to articles, sections and subsections of this Agreement unless
otherwise expressly stated. In the event any claim is made by any Member
relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular
Member or its counsel.
8.4 SEVERABILITY
If any provision of this Agreement or the application of such
provision to any person or circumstance shall be held invalid, the remainder of
this Agreement or the application of such provision to persons or circumstances
other than those to which it is held invalid shall not be affected thereby.
8.5 NOTICES
Any notice in this Agreement permitted to be given, made or accepted
by the Company to a Member or by a Member to other Members, must be in writing
and may be given or served by delivering same to an officer or agent of such
Member, by depositing the same with a recognized overnight delivery service
(with receipt for delivery) and/or by facsimile transmission (with confirmation
of receipt) at the addresses and facsimile numbers designated on EXHIBIT C.
Notice deposited with an overnight delivery service shall be deemed given one
(1) day after it is deposited. Notice given in any other manner shall be
effective when received at the address of the addressee and proof of the receipt
of any notice given hereunder shall be the responsibility of the sending party.
8.6 AMENDMENTS
All amendments to this Agreement shall be in writing and signed by all
of the Members.
8.7 MULTIPLE COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
8.8 ATTORNEY'S FEES
In the event of any action or proceeding brought by a party against
another under this Agreement, the prevailing party shall be entitled to, in
addition to any other damages assessed, all of its costs and expenses including,
but not limited to, attorneys' fees in such action or proceeding in such amount
as the court may adjudge reasonable. The prevailing party shall be determined by
the court based upon an assessment of which party's major arguments made or
positions taken in the proceedings could fairly be said to have prevailed over
the other party's major arguments or positions on major disputed issues in the
court's decision. If the party which shall have commenced or instituted the
action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the prevailing
party.
- 25 -
8.9 LIMITATION OF LIABILITY
(a) Notwithstanding anything to the contrary in this Agreement or
in any document delivered by a Member in connection this Agreement, it is
expressly understood and agreed that each Member's liability to any third party
shall be limited to such Member's required investment in the Company, and no
other property or asset of such Member, or of any of such Member's directors,
officers, employees, shareholders, investment managers, investors, or
constituent members, contractholders or policyholders, shall be subject to any
lien, levy, execution, setoff or other enforcement procedure for satisfaction of
any right or remedy of any third party in connection with this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or
in any document delivered by a Member in connection with this Agreement, it is
expressly understood and agreed that the liability of each Member (including any
Substitute Member) hereunder to the Company or any other Member shall be limited
to such Member's undistributed Capital Contributions in the Company, and no
other property or asset of such Member, or of any of such Member's directors,
officers, employees, attorneys, shareholders, investment managers, investors, or
constituent members, contractholders or policyholders, shall be subject to any
lien, levy, execution, setoff or other enforcement procedure for satisfaction of
any right or remedy of the Company or any other Member in connection with this
Agreement.
8.10 REMEDIES CUMULATIVE
The remedies under this Agreement are cumulative and shall not exclude
any other remedies to which any person may be lawfully entitled.
8.11 FURTHER ASSURANCE
Each Member shall, at or after the Closing, and without further
consideration execute, acknowledge and deliver to the other such other documents
and instruments, and take such other actions, as either shall reasonably request
to carry out the intent and purposes of this Agreement including documents to be
executed by Keystone in connection with the Industrial Development Authority or
refinancings permitted hereunder.
8.12 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its principles of conflicts
of law.
- 26 -
IN WITNESS WHEREOF, all of the Members of NOCHA LLC, a New York
limited liability company, have executed this Agreement, effective as of the
date written above.
LANDMARK TRI-STATE, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ by ▇▇▇▇ ▇▇▇▇▇▇▇, Attorney In Fact
---------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
TRI-STATE LANDMARK LLC, a Delaware limited
liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ by ▇▇▇▇ ▇▇▇▇▇▇▇, Attorney In Fact
---------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
KEYSTONE OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership
By: Keystone Property Trust, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Butte
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Butte
Title: Senior Vice President
KEYSTONE NOCHA INVESTOR LLC, a Delaware limited
liability company
By: Keystone Operating Partnership, L.P., Managing
Member
By: Keystone Property Trust, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Butte
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Butte
Title: Senior Vice President
- 27 -