Exhibit 10.1.4
▇▇▇▇▇▇▇ PACIFIC EMPLOYEES LLC
LIMITED LIABILITY COMPANY AGREEMENT
June 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS 2
1.01 DEFINITIONS 2
ARTICLE II -ORGANIZATION AND POWERS 7
2.01 ORGANIZATION 7
2.02 PURPOSES AND POWERS 7
2.03 PRINCIPAL OFFICE IN DELAWARE 8
2.04 Fiscal Year. 8
2.05 QUALIFICATION IN OTHER JURISDICTIONS 8
ARTICLE III -MEMBERS 8
3.01 MEMBERS 8
3.02 COMPLIANCE WITH SECURITIES LAWS AND OTHER LAWS AND OBLIGATIONS 8
3.03 ADMISSION OF NEW MEMBERS 9
3.04 MEETINGS OF MEMBERS 9
3.05 ACTION WITHOUT A MEETING 10
3.06 VOTING RIGHTS 10
3.07 LIMITATION OF LIABILITY OF MEMBERS 10
3.08 AUTHORITY 11
3.09 NO RIGHT TO WITHDRAW 11
3.10 RIGHTS TO INFORMATION 11
3.11 REPORTS 11
ARTICLE IV -MANAGEMENT 12
4.01 MANAGING MEMBER 12
4.02 ELECTION AND QUALIFICATION 12
4.03 POWERS AND DUTIES OF THE MANAGING MEMBER 12
4.04 RELIANCE BY THIRD PARTIES 13
4.05 RESIGNATION 13
4.06 COMPENSATION 13
4.07 ACTIONS BY MANAGING MEMBER 13
4.08 LIMITATION OF LIABILITY OF MANAGING MEMBER 13
4.09 MANAGEMENT OF BPP RETAIL 14
ARTICLE V -INDEMNIFICATION 14
5.01 RIGHT TO INDEMNIFICATION 14
5.02 NON-EXCLUSIVITY 15
5.03 HEIRS, SUCCESSORS AND ASSIGNS 15
5.04 INSURANCE 15
5.05 EMPLOYEE BENEFIT PLAN 15
5.06 AMENDMENT 15
ARTICLE VI -CONFLICTS OF INTEREST; ETC. 16
6.01 TRANSACTIONS WITH INTERESTED PERSONS 16
6.02 OUTSIDE BUSINESSES 16
6.03 NO EMPLOYMENT OBLIGATION 16
ARTICLE VII - UNITS 16
7.01 ISSUANCE, ETC. 16
7.02 FORFEITURE 17
7.03 RETIREMENT, DISABILITY OR DEATH OF EMPLOYEE MEMBER 17
7.04 CHANGE IN CONTROL 18
ARTICLE VIII -CAPITAL ACCOUNTS AND CONTRIBUTIONS 18
8.01 CAPITAL ACCOUNTS 18
8.02 CONTRIBUTIONS 19
ARTICLE IX -ALLOCATION OF INCOME AND LOSS 19
9.01 ALLOCATION OF NET INCOME 19
9.02 ALLOCATION OF NET LOSS 19
9.03 SPECIAL INCOME ALLOCATION 20
9.04 QUALIFIED INCOME OFFSET 20
(i)
9.05 GROSS INCOME ALLOCATION 20
9.06 NONRECOURSE DEDUCTIONS 21
9.07 LLC MINIMUM GAIN CHARGEBACK 21
9.08 MEMBER NONRECOURSE DEBT 21
9.09 CURATIVE ALLOCATIONS 21
9.10 LOSS LIMITATION 22
9.11 DISTRIBUTIONS OF NONRECOURSE LIABILITY PROCEEDS 22
9.12 COMPLIANCE WITH CODE SECTION 704(B) 22
ARTICLE X -DISTRIBUTIONS 22
10.01 ORDINARY DISTRIBUTIONS 22
10.02 INCENTIVE DISTRIBUTION 22
10.03 DISTRIBUTIONS UPON LIQUIDATION 23
10.04 DISTRIBUTION OF BPP RETAIL INTEREST; LIQUIDATION OF BPP RETAIL 23
ARTICLE XI -TRANSFERS OF MEMBERSHIP INTERESTS 23
11.01 ASSIGNABILITY OF INTERESTS 23
11.02 TRANSFEREE EMPLOYEE MEMBERS 24
11.03 ADDITIONAL REQUIREMENTS 24
11.04 ALLOCATION OF DISTRIBUTIONS BETWEEN ASSIGNOR AND ASSIGNEE; SUCCESSOR TO CAPITAL ACCOUNTS 25
11.05 TRANSFERS OF MANAGING MEMBER INTEREST 25
ARTICLE XII -DISSOLUTION, LIQUIDATION, AND TERMINATION 25
12.01 DISSOLUTION 25
12.02 LIQUIDATION 25
12.03 CERTIFICATE OF CANCELLATION 26
ARTICLE XIII -GENERAL PROVISIONS 26
13.01 Offset. 26
13.02 NOTICES 26
13.03 ENTIRE AGREEMENT 26
13.04 LIMITATION OF LITIGATION; CONSENT TO JURISDICTION 27
13.05 AMENDMENT OR MODIFICATION 27
13.06 BINDING EFFECT 27
13.07 GOVERNING LAW; SEVERABILITY 27
13.08 FURTHER ASSURANCES 28
13.09 WAIVER OF CERTAIN RIGHTS 28
13.10 NOTICE TO MEMBERS OF PROVISIONS OF THIS AGREEMENT 28
13.11 THIRD-PARTY BENEFICIARIES 28
13.12 INTERPRETATION 28
13.13 COUNTERPARTS 29
13.14 TAXATION AS PARTNERSHIP 29
(ii)
▇▇▇▇▇▇▇ PACIFIC EMPLOYEES LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement (the "Agreement") is made as
of June 1, 1999 by and among ▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P., a
Delaware limited partnership (the "Managing Member") and the persons identified
on SCHEDULE A hereto (such persons, including the Managing Member, and their
respective assigns being hereinafter referred to collectively as the "Members").
All Members, other than the Managing Member, are hereinafter referred to
collectively as the "Employee Members").
WHEREAS, the Managing Member and the Employee Members wish to set out
fully their respective rights, obligations and duties regarding ▇▇▇▇▇▇▇ Pacific
Employees LLC (the "LLC") and its assets and liabilities from and after the
adoption of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants expressed
herein, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
1.01 DEFINITIONS. For purposes of this Agreement:
"ADJUSTED CAPITAL ACCOUNT" shall have the meaning set forth in Section
9.11.
"AFFILIATE" shall mean, with respect to any Person (herein the "first
party"), any other Person that directly or indirectly controls, or is controlled
by, or is under common control with, such first party. The term "control" as
used herein (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to (a) vote
50% or more of the outstanding voting securities of such Person or (b) otherwise
direct the management or policies of such Person by contract or otherwise.
"AGREEMENT" shall mean this Limited Liability Company Agreement, as it
may from time to time be further amended, supplemented or restated.
"BOARD" shall mean the Board of Directors of ▇▇▇▇▇▇▇ Pacific.
"BOARD AUTHORIZATION" shall mean authorization by the Board (or the
Executive, Compensation or other Committee of the Board) on behalf of ▇▇▇▇▇▇▇
Pacific in its capacity as the general partner of the Managing Member.
"BPP RETAIL" shall mean BPP Retail, LLC, a Delaware limited liability
company.
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"▇▇▇▇▇▇▇ PACIFIC" shall mean ▇▇▇▇▇▇▇ Pacific Properties, Inc., a
Maryland corporation, and its successors.
"CAPITAL ACCOUNT" shall mean the capital account maintained by the LLC
with respect to each Member in accordance with the capital account rules
described in Section 8.01.
"CERTIFICATE OF ORGANIZATION" shall mean the Certificate of Limited
Liability required under the LLC Act, as such certificate may be amended or
restated from time to time.
"CHAIRMAN" shall mean the Chairman of the LLC, who shall be appointed
from time to time by the Managing Member.
"CHANGE IN CONTROL" shall mean the occurrence of any one of the
following:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (other than ▇▇▇▇▇▇▇ Pacific, any
Subsidiary, or any trustee, fiduciary or other person or entity holding
securities under any employee benefit plan or trust of ▇▇▇▇▇▇▇ Pacific or any
Subsidiary), together with all "affiliates" and "associates" (as such terms are
defined in Rule 12b-2 under the Act) of such person, shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Act)
directly or indirectly, of securities of ▇▇▇▇▇▇▇ Pacific representing 20% or
more of either (A) the combined voting power of ▇▇▇▇▇▇▇ Pacific's then
outstanding securities having the right to vote in an election of the Board
("voting securities") or (B) the then outstanding shares of ▇▇▇▇▇▇▇ Pacific's
Common Stock, par value $.01 per share (in either such case other than as a
result of an acquisition of securities directly from ▇▇▇▇▇▇▇ Pacific); or
(ii) persons who, as of the date of this Agreement, constitute the
Board (the "Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger or similar
transaction, to constitute at least seven-ninths (7/9ths) of the Board, provided
that any person becoming a member of the Board subsequent to the date of this
Agreement whose election or nomination for election was approved by a vote of at
least a majority of the Incumbent Directors shall, for purposes of this
Agreement, be considered an Incumbent Director; or
(iii) the shareholders of ▇▇▇▇▇▇▇ Pacific shall approve (A) any
consolidation or merger of ▇▇▇▇▇▇▇ Pacific or any Subsidiary where the
shareholders of ▇▇▇▇▇▇▇ Pacific, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially
own (as such term is defined in Rule 13d-3 under the Act), directly or
indirectly, shares representing in the aggregate 50% or more of the voting
securities of the corporation issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any), (B) any sale, lease,
exchange
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or other transfer (in one transaction or a series of transaction contemplated or
arranged by any party as a single plan) of all or substantially all of the
assets of ▇▇▇▇▇▇▇ Pacific or (C) any plan or proposal for the liquidation or
dissolution of ▇▇▇▇▇▇▇ Pacific; or
(iv) any sale, lease, exchange or other transfer (in one transaction or
a series of transaction contemplated or arranged by any party as a single plan)
of all or substantially all of the assets of BPP Retail, or the dissolution of
BPP Retail.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred for purposes of the foregoing clause (i) solely as the
result of an acquisition of securities by ▇▇▇▇▇▇▇ Pacific which, by reducing the
number of shares of Common Stock or other voting securities outstanding,
increases the proportionate number of shares beneficially owned by any person to
20% or more of the combined voting power of all then outstanding voting
securities; provided, however, that if any person referred to in this sentence
shall thereafter become the beneficial owner of any additional shares or other
voting securities (other than pursuant to a stock split, stock dividend, or
similar transaction), then a "Change in Control" shall be deemed to have
occurred for purposes of the foregoing clause (i). "Subsidiary" shall mean any
firm, partnership, corporation, limited liability company, association, trust,
joint venture, unincorporated organization or similar entity in which ▇▇▇▇▇▇▇
Pacific, directly or indirectly, owns fifty percent (50%) or more of the
economic interest in the equity of such entity.
"CODE" AND "INTERNAL REVENUE CODE" shall each mean the United States
Internal Revenue Code of 1986, as in effect from time to time, and applicable
rules and regulations thereunder. Any reference herein to a specific section or
sections of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"CONTRIBUTION" shall mean, as to each Member, the amount of money
and/or the agreed fair market value of any property (net of any liabilities
encumbering such property that the LLC is considered to assume or take subject
to) contributed to the capital of the LLC by such Member.
"DISABILITY" shall mean certification by an independent medical doctor
(selected by ▇▇▇▇▇▇▇ Pacific's health or disability insurer), after consultation
with the Employee Member's physician and examination of the Employee Member,
that the Employee Member has for at least 120 consecutive days been disabled in
a manner which renders the Employee Member substantially unable to perform his
responsibilities as an employee of the Managing Member, ▇▇▇▇▇▇▇ Pacific, or any
of their Affiliates.
"EMPLOYEE MEMBER" shall mean each Person who is the legal or beneficial
owner of issued and outstanding Units of the LLC, and transferees of the
foregoing who have been admitted as Employee Members pursuant to Section 11.02.
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"EXPENSES" means all expenses, including attorneys' fees and
disbursements, actually and reasonably incurred in defense of a proceeding or in
seeking indemnification under Article V, and, except for proceedings by or in
the right of the LLC or alleging that a Member received an improper personal
benefit, any judgments, awards, fines, penalties and reasonable amounts paid in
settlement of a proceeding.
"FISCAL YEAR" shall have the meaning set forth in Section 2.04.
"GOVERNMENTAL AUTHORITY" shall mean any foreign, federal, state or
local court, governmental authority or regulatory body.
"INCENTIVE DISTRIBUTION" shall have the meaning set forth in Section
3.10 of the Operating Agreement of BPP Retail.
"IRS" shall mean the Internal Revenue Service of the United States
Department of the Treasury.
"LLC" shall mean ▇▇▇▇▇▇▇ Pacific Employees LLC.
"LLC ACT" or "ACT" shall mean the Delaware Limited Liability Company
Act, as it may be amended from time to time, and any successor to such Act.
"LLC MINIMUM GAIN" shall have the meaning set forth in Section 9.07.
"MAJORITY VOTE" shall mean the affirmative approval by vote or consent
of both (i) the Managing Member, acting with Board Authorization, and (ii) a
majority of the outstanding Units held by all Employee Members (other than those
held by any Non-Voting Member or by any other Employee Member who is expressly
prohibited from voting by the terms of this Agreement).
"MANAGING MEMBER" shall mean ▇▇▇▇▇▇▇ Pacific Operating Partnership,
L.P., a Delaware limited partnership, and any Person who becomes a successor or
assign as provided herein.
"MANAGING MEMBER INTEREST" shall mean the interest (including the
Capital Account) of the Managing Member in the LLC.
"MEMBER" shall mean any person or entity who is or becomes a Member
pursuant to the terms hereof, including the Managing Member and the Employee
Members.
"MEMBER NONRECOURSE DEBT" shall have the meaning set forth in Section
9.08.
"MEMBER NONRECOURSE DEBT MINIMUM GAIN" shall have the meaning set forth
in Section 9.08.
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"MEMBERSHIP INTERESTS" shall mean the Managing Member Interest and the
interests (including the Capital Accounts) of the Employee Members in the LLC.
The Membership Interests of each of the Employee Members are represented by
Units, as provided in Section 7.01.
"NONRECOURSE DEDUCTIONS" shall have the meaning set forth in Section
9.06.
"NON-VOTING MEMBER" shall mean (i) a former Employee Member (or any
heir or executor of an Employee member) who continues to hold unforfeited Units
pursuant to the provisions of Section 7.03, (ii) an Employee Member who holds
fewer than 1% of the outstanding Units or (iii) the Managing Member, with
respect to any Units which the Managing Member may hold pursuant to the
provisions of Section 7.01.
"PERSON" shall mean any natural person, firm, partnership, corporation,
limited liability company, association, trust, joint venture, unincorporated
organization or any similar entity.
"PARTICIPATING INTERESTS" shall mean the managing member interests in
BPP Retail held by the LLC.
"REGULATORY ALLOCATIONS" shall have the meaning set forth in Section
9.09.
"RETIREMENT" shall mean the retirement of an Employee Member after
attaining age 65 from employment by the Managing Member, ▇▇▇▇▇▇▇ Pacific and
their Affiliates.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
applicable rules and regulations thereunder.
"TRANSFER" shall have the meaning specified in Article XI.
"TREASURY REGULATIONS" shall mean the federal income tax and procedure
and administration regulations as promulgated by the U.S. Treasury Department,
as such regulations may be in effect from time to time. All references in this
Agreement to provisions of the Treasury Regulations shall be deemed to refer to
successor regulatory provisions to the extent appropriate in light of the
context herein in which such Treasury Regulations references are used.
"UNITS" shall have the meaning set forth in Section 7.01.
"VOTING EMPLOYEE MEMBER" shall mean any Employee Member who is not a
Non-Voting Employee Member.
In addition to the foregoing, other capitalized terms used in this
Agreement shall have the meaning ascribed thereto in the text of this Agreement.
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ARTICLE II - ORGANIZATION AND POWERS
2.01 ORGANIZATION. The LLC shall be formed by the filing of its
Certificate of Organization with the Delaware Secretary of State pursuant to the
LLC Act. If the Certificate of Organization has not been previously filed, the
Members shall cause it to be filed as soon as practicable hereafter. The
Certificate of Organization may be restated by the Managing Member as provided
in the LLC Act or amended by the Managing Member to change the address of the
office of the LLC in Delaware, the name and address of its resident agent in
Delaware, or the identity of the Managing Member, or to make corrections
required by the LLC Act. Other additions to or amendments of the Certificate of
Organization shall be authorized by the Members as provided in Section 3.06. The
Certificate of Organization as so amended from time to time, is referred to
herein as the "Certificate." The Managing Member shall deliver a copy of the
Certificate and any amendment thereto to any Member who so requests.
2.02 PURPOSES AND POWERS. The principal business activity and purposes
of the LLC shall initially be (i) to invest in, hold and dispose of one or more
Participating Interests in BPP Retail and all activities reasonably related
thereto, (ii) to make and perform all contracts and engage in all activities and
transactions and to do any and all things necessary or advisable to carry out
the foregoing purposes, and (iii) to engage in any other business related
thereto or useful in connection therewith. However, the business and purposes of
the LLC shall not be limited to its initial principal business activity and,
unless the Members otherwise agree in writing as provided in Section 13.05, the
LLC shall have authority to engage in any other lawful business, trade, purpose
or activity permitted by the Act, and it shall possess and may exercise all of
the powers and privileges granted by the Act, together with any powers
incidental thereto, so far as such powers or privileges are necessary or
convenient to the conduct, promotion or attainment of the business, purposes or
activities of the LLC, including without limitation the following powers:
(a) to conduct its business and operations in any state,
territory or possession of the United States or in any foreign country or
jurisdiction;
(b) to purchase, receive, take, lease or otherwise acquire,
own, hold, improve, maintain, use or otherwise deal in and with, sell, convey,
lease, exchange, transfer or otherwise dispose of, mortgage, pledge, encumber or
create a security interest in all or any of its real or personal property, or
any interest therein, wherever situated;
(c) to borrow or lend money or obtain or extend credit and
other financial accommodations, to invest and reinvest its funds in any type of
security or obligation of or interest in any public, private or governmental
entity, and to give and receive interests in real and personal property as
security for the payment of funds so borrowed, loaned or invested;
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(d) to make contracts, including contracts of insurance, incur
liabilities and give guaranties, whether or not such guaranties are in
furtherance of the business and purposes of the LLC, including without
limitation, guaranties of obligations of other Persons who are interested in the
LLC or in whom the LLC has an interest;
(e) to appoint the Managing Member of the LLC, to employ
officers, employees, agents and other Persons, to fix the compensation and
define the duties and obligations of such personnel, to establish and carry out
retirement, incentive and benefit plans for such personnel, and to indemnify
such personnel to the extent permitted by this Agreement and the Act;
(f) to make donations irrespective of benefit to the LLC for
the public welfare or for community, charitable, religious, educational,
scientific, civic or similar purposes; and
(g) to institute, prosecute, and defend any legal action or
arbitration proceeding involving the LLC, and to pay, adjust, compromise,
settle, or refer to arbitration any claim by or against the LLC or any of its
assets.
2.03 PRINCIPAL OFFICE IN DELAWARE. The principal office of the LLC in
the State of Delaware shall be c/o CT Corporation System. After giving notice to
the Members, the Managing Member may change the principal office of the LLC at
any time and may cause the LLC to establish other offices.
2.04 FISCAL YEAR. The fiscal year of the LLC shall be the period ending
on December 31 of each year, or such other fiscal year as the Managing Member
may designate or as may be required by the Code (the "Fiscal Year").
2.05 QUALIFICATION IN OTHER JURISDICTIONS. The Managing Member shall
cause the LLC to be qualified or registered under applicable laws of any
jurisdiction in which the LLC transacts business and shall be authorized to
execute, deliver and file any certificates and documents necessary to effect
such qualification or registration, including without limitation the appointment
of agents for service of process in such jurisdictions.
ARTICLE III - MEMBERS
3.01 MEMBERS. The initial Members of the LLC and their addresses are
listed on SCHEDULE A, and said schedule shall be amended from time to time by
the Managing Member to reflect the withdrawal of Members and the admission of
additional Members pursuant to this Agreement. The Members shall constitute a
single class or group of Members of the LLC for all purposes of the Act, except
as otherwise explicitly provided herein. The Managing Member shall notify the
Members of changes in SCHEDULE A, which shall constitute the record list of the
Members for all purposes of this Agreement.
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3.02 COMPLIANCE WITH SECURITIES LAWS AND OTHER LAWS AND OBLIGATIONS.
Each Member hereby represents and warrants to the LLC and acknowledges that (a)
it has such knowledge and experience in financial and business matters and is
capable of evaluating the merits and risks of an investment in the LLC and
making an informed investment decision with respect thereto, (b) it is able to
bear the economic and financial risk of an investment in the LLC for an
indefinite period of time and understands that in the event it elects to
withdraw as a Member of the LLC it shall not have a right to have its interest
repurchased by the LLC and may forfeit any interest which it has in the LLC, (c)
it is acquiring an interest in the LLC for investment only and not with a view
to, or for resale in connection with, any distribution to the public or public
offering thereof, (d) it understands that the equity interests in the LLC have
not been registered under the securities laws of any jurisdiction and cannot be
disposed of unless they are subsequently registered and/or qualified under
applicable securities laws and the provisions of this Agreement have been
complied with, and (e) if it is an entity, the execution, delivery and
performance of this Agreement do not require it to obtain any consent or
approval that has not been obtained and do not contravene or result in a default
under any provision of any existing law or regulation applicable to it, any
provision of its charter, by-laws or other governing documents (if applicable)
or any agreement or instrument to which it is a party or by which it is bound.
3.03 ADMISSION OF NEW MEMBERS. Additional Persons may be admitted to
the LLC as Members and may participate in the profits, losses, distributions,
allocations and capital contributions of the LLC upon such terms as are approved
by the Managing Member acting with Board Authorization in its sole discretion,
by amendment of this Agreement under Section 13.05. The Managing Member shall
admit as Employee Members only Persons who at the time of their admission are
officers, directors, employees or consultants of the Managing Member, ▇▇▇▇▇▇▇
Pacific or any of their Affiliates. New Members shall be admitted at the time
when all conditions to their admission have been satisfied, as determined by the
Managing Member, and their identity, Membership Interests and Contributions (if
any) under Section 8.02 have been established by amendment of this Agreement,
SCHEDULE A and/or the Units Schedule. Existing Members shall have no preemptive
or similar right to subscribe to the purchase of new Membership Interests in the
LLC.
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3.04 MEETINGS OF MEMBERS.
(a) Meetings of Members may be called for any proper purpose
at any time by the Managing Member or the holders of a majority of the Units.
The Managing Member or the Members calling the meeting shall determine the date,
time and place of each meeting of Members, and written notice thereof shall be
given by the Managing Member to each Member not less than ten (10) days or more
than sixty (60) days prior to the date of the meeting. Notice shall be sent to
Members of record on the date when the meeting is called. The business of each
meeting of Members shall be limited to the purposes described in the notice. A
written waiver of notice, executed before or after a meeting by a Member or its
authorized attorney and delivered to the Managing Member shall be deemed
equivalent to notice of the meeting.
(b) Members holding a majority of the Units having voting
rights pursuant to Section 3.06 (and the Managing Member, in the case of any
matter which is not reserved for action exclusively by the Employee Members
under the terms of this Agreement), shall constitute a quorum for the
transaction of any business at a meeting of Members. Members may attend a
meeting in person or by proxy. Members may also participate in a meeting by
means of conference telephone or similar communications equipment that permits
all Members present to hear each other. If less than a quorum of the Members is
present, the meeting may be adjourned by the Chairman to a later date, time and
place, and the meeting may be held as adjourned without further notice. When an
adjourned meeting is reconvened, any business may be transacted that might have
been transacted at the original meeting.
(c) The LLC shall make available at any meeting of Members and
for a period of ten (10) days prior thereto a complete list of Members entitled
to vote at such meeting or any adjournment thereof. The list shall reflect the
current names and addresses of each Member and such other information as may be
required by the LLC Act, and shall be subject to inspection by the Member at the
meeting and during the ten-day period prior thereto at the principal office of
the LLC.
(d) The Chairman shall preside at all meetings of the Members.
The Chairman shall determine the order of business and the procedures to be
followed at each meeting of Members.
3.05 ACTION WITHOUT A MEETING. There is no requirement that the Members
hold a meeting in order to take action on any matter. Any action required or
permitted to be taken by the Members may be taken without a meeting if one or
more written consents to such action shall be signed by Members who hold the
Membership Interests or other interests in the LLC required to approve the
action being taken. Such written consents shall be delivered to the LLC at the
principal office of the LLC and unless otherwise specified shall be effective on
the date when the first consent is so delivered. The LLC shall give prompt
notice to all Members who did not consent to any action taken by written consent
of Members without a meeting.
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3.06 VOTING RIGHTS. Unless otherwise required by the LLC Act, and
except as to matters for which the Managing Member's action, approval or consent
is expressly required by the terms of this Agreement, all actions, approvals and
consents required to be taken or given by the Members under the LLC Act, this
Agreement or otherwise shall require a Majority Vote.
3.07 LIMITATION OF LIABILITY OF MEMBERS. Except as otherwise provided
in the LLC Act, no Member of the LLC shall be obligated personally for any debt,
obligation or liability of the LLC or of any other Member, whether arising in
contract, tort or otherwise, solely by reason of being a Member of the LLC. No
Member shall be liable to the LLC or any other Member for acting in good faith
reliance upon the provisions of this Agreement. No Member shall have any
responsibility to restore any negative balance in its Capital Account (as
defined in Section 8.01) or to contribute to or in respect of the liabilities or
obligations of the LLC or to return distributions made by the LLC except as
required by the LLC Act or other applicable law; provided, however, that Members
are responsible for their failure to make required Contributions (if any) under
Section 8.02. The failure of the LLC to observe any formalities or requirements
relating to the exercise of its powers or the management of its business or
affairs under this Agreement or the Act shall not be grounds for making its
Members responsible for the liabilities of the LLC.
3.08 AUTHORITY. Unless specifically authorized by the Managing Member,
no Member that is not the Managing Member or an officer of the LLC or delegate
of the Managing Member pursuant to paragraph 4.03(a) shall be an agent of the
LLC or have any right, power or authority to act for or to bind the LLC or to
undertake or assume any obligation or responsibility of the LLC or of any other
Member.
3.09 NO RIGHT TO WITHDRAW. No Member shall have any right to resign or
withdraw from the LLC without the consent of the other Members or to receive any
distribution or the repayment of its capital contribution, except as provided in
Section 10.04 and Article XII upon dissolution and liquidation of the LLC, and
except that any Employee Member may withdraw from the LLC by giving at least 30
days' prior written notice to the Managing Member, subject to forfeiture of such
Employee Member's entire interest in the LLC. No Member shall have any right to
have the fair value of its interest in the LLC appraised and paid out upon the
resignation or withdrawal of such Member or any other circumstances.
3.10 RIGHTS TO INFORMATION. Members shall have the right to receive
from the LLC upon request a copy of the Certificate and of this Agreement, as
amended from time to time, and such other information regarding the LLC as is
required by the LLC Act, subject to reasonable conditions and standards
established by the LLC, as permitted by the LLC Act, which may include, without
limitation, withholding or restrictions on the use of confidential information.
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3.11 REPORTS. Within 120 days after the end of each fiscal year of the
LLC, the LLC shall cause to be prepared and sent to all Members a financial
report of the LLC including a balance sheet, a profit and loss statement and,
unless the profit and loss statement is prepared on a cash basis, a statement of
changes in financial position. Within 90 days after the end of each fiscal year
the LLC shall furnish to all Members such information as may be needed to permit
Members to file their federal income tax returns and any required state and
local income tax returns. The cost of such reports shall be an expense of the
LLC.
ARTICLE IV - MANAGEMENT
4.01 MANAGING MEMBER. There shall be a sole Managing Member of the LLC,
who shall be the manager of the LLC within the meaning of the LLC Act, and who
shall be a Member. The name and address of the Managing Member shall be listed
on SCHEDULE A, and said schedule and the Certificate shall be amended from time
to time by the Managing Member to reflect the resignation or removal of the
Managing Member or the appointment of a new Managing Member pursuant to this
Agreement.
4.02 ELECTION AND QUALIFICATION. The Managing Member shall hold office
until a successor is chosen and qualified, or upon the Managing Member's earlier
resignation, or in the case of a Manager who is an individual, such individual's
death. The Managing Member shall devote such time to the business and affairs of
the LLC as is reasonably necessary for the performance of the Managing Member's
duties, but shall not be required to devote full time to the performance of such
duties and may delegate its responsibilities as provided in Section 4.03.
4.03 POWERS AND DUTIES OF THE MANAGING MEMBER. The business and affairs
of the LLC shall be conducted by or under the direction of the Managing Member,
who shall have and may exercise on behalf of the LLC all of its rights, powers,
duties and responsibilities under this Agreement (including without limitation
Section 2.02) or as provided by law, including without limitation the right and
authority:
(a) to manage the business and affairs of the LLC and for this
purpose to employ, retain or appoint any officers, employees, consultants,
agents, brokers, professionals or other Persons in any capacity for such
compensation and on such terms as deemed necessary or desirable and to delegate
to such Persons such of the Managing Member's duties and responsibilities as the
Managing Member shall determine; PROVIDED, HOWEVER, that no officer of the LLC
shall be held personally liable, by virtue of his or her status as an officer,
for any losses, debts or obligations of the LLC;
(b) to enter into, execute, deliver, acknowledge, make,
modify, supplement or amend any documents or instruments in the name of the LLC;
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(c) to borrow money or otherwise obtain credit and other
financial accommodations on behalf of the LLC on a secured or unsecured basis as
provided in Section 2.02(c), and to perform or cause to be performed all of the
LLC's obligations in respect of its indebtedness and any mortgage, lien or
security interest securing such indebtedness; and
(d) to make elections and prepare and file returns regarding
any federal, state or local tax obligations of the LLC, and to designate the
Managing Member to serve as the "Tax Matters Partner" of the LLC for purposes of
Section 6231(a)(7) of the Code, with power to manage and represent the LLC in
any administrative proceeding of the IRS.
Unless otherwise provided in this Agreement, any action taken by a Managing
Member or delegate of such Managing Member under Subpart (a) of this paragraph,
and the signature of a Managing Member or such delegate on any agreement,
contract, instrument or other document on behalf of the LLC, shall be sufficient
to bind the LLC and shall conclusively evidence the authority of that Managing
Member or such delegate and the LLC with respect thereto.
4.04 RELIANCE BY THIRD PARTIES. Any Person dealing with the LLC, the
Managing Member or any Member may rely upon a certificate signed by the Managing
Member as to (i) the identity of the Managing Member, Members, officers or other
delegates of such Managing Member under Section 4.03(a); (ii) any factual
matters relevant to the affairs of the LLC; (iii) the Persons who are authorized
to execute and deliver any document on behalf of the LLC; or (iv) any action
taken or omitted by the LLC, the Managing Member, any Member or any officers or
delegate of such Managing Member under Section 4.03(a).
4.05 RESIGNATION. The Managing Member may resign from the LLC upon at
least sixty (60) days notice to the Members (unless notice is waived by them).
Any vacancy in the office of the Managing Member shall be filled by the
remaining Members.
4.06 COMPENSATION. The Managing Member shall receive no compensation
for its services performed on behalf of the LLC or other benefits it provides to
the LLC, except that the Managing Member shall be entitled to reimbursement for
expenses incurred by it in managing and conducting the business and affairs of
the LLC.
4.07 ACTIONS BY MANAGING MEMBER. There is no requirement that the
Managing Member hold a meeting in order to take action on any matter which the
Managing Member is authorized to take in accordance with this Agreement.
4.08 LIMITATION OF LIABILITY OF MANAGING MEMBER. The Managing Member
shall not be obligated personally for any debt, obligation or liability of the
LLC or of any Member, whether arising in contract, tort or otherwise, solely by
reason of being or acting as Managing Member of the LLC. The Managing Member
shall not be personally liable
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to the LLC or to its Members for breach of any fiduciary or other duty that does
not involve (i) a breach of the duty of loyalty to the LLC or its Members, (ii)
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, or (iii) a transaction from which the Managing Member
derived an improper personal benefit.
4.09 MANAGEMENT OF BPP RETAIL. The Managing Member is authorized to
exercise all consent, voting and other rights with respect to the Participating
Interests and any other securities held by the LLC. Nothing contained in this
Agreement will be deemed to give any Employee Member any voting, approval or
consent rights with respect to any interest in BPP Retail or any other right
with respect to the management or affairs of BPP Retail; provided, however, that
after a Change in Control, neither the LLC nor the Managing Member shall
authorize any amendment or modification to the Operating Agreement of BPP Retail
unless (i) approved by a Majority Vote or (ii) such amendment or modification
could not reasonably be expected to diminish the value to the LLC of the
Incentive Distribution or to affect adversely the rights, privileges or
interests of the LLC with respect to the Incentive Distribution.
ARTICLE V - INDEMNIFICATION
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5.01 RIGHT TO INDEMNIFICATION. Neither the Managing Member, nor any of
the directors, officers or Persons serving in a similar executive capacity
appointed by the Managing Member and exercising rights and duties delegated by
the Managing Member (including a Person serving at the request of the LLC as a
director, officer or other agent of another organization), employees, or Members
of the LLC or their Affiliates (the Managing Member and each such other Person
herein referred to as an "Indemnified Party") shall have any liability to the
LLC or to any Member for any loss suffered by the LLC which arises out of any
action or inaction of such Indemnified Party in its capacity as any of the
foregoing; PROVIDED, HOWEVER, that such course of conduct did not constitute
fraud, gross negligence, willful misconduct or a material breach of this
Agreement. Each such Indemnified Party shall be indemnified to the fullest
extent permitted by law by the LLC against any losses, judgments, liabilities,
Expenses and amounts paid in settlement of any claims sustained by any of them
in their capacity as an Indemnified Party in connection with the business or
operations of the LLC, or the exercise and performance of any Member's,
director's or officer's powers or duties in accordance with the terms of this
Agreement; provided the same was not the result of fraud, gross negligence,
willful misconduct, or a material breach of this Agreement, the Advisory
Agreement or any other agreement for the provision of Investment Management
Services. The indemnification authorized by this Section 5.01 shall include the
payment of reasonable attorneys' fees and other reasonable Expenses incurred in
settling or defending any claims, threatened actions or finally adjudicated
legal Proceedings. Prior to any final disposition of any claim or Proceeding
with respect to which an Indemnified Party may be entitled to indemnification
hereunder, the LLC shall pay to such Indemnified Party, as the case may be, in
advance of such final disposition, an amount equal to all reasonable
out-of-pocket Expenses of said Indemnified Party as incurred in defense of said
claim or Proceeding; provided that such advance payments shall be made only upon
the LLC's receipt of a written undertaking of said Indemnified Party to repay
the LLC the amount so advanced if it shall be finally determined that said
Indemnified Party was not entitled to indemnification hereunder.
5.02 NON-EXCLUSIVITY. The provisions of this Article shall not be
construed to limit the power of the LLC to indemnify its Managing Member,
Members, directors, officers, employees or agents to the full extent permitted
by law or to enter into specific agreements, commitments or arrangements for
indemnification permitted by law. The absence of any express provision for
indemnification herein shall not limit any right of indemnification existing
independently of this Article.
5.03 HEIRS, SUCCESSORS AND ASSIGNS. The indemnification rights provided
by this Article V shall also inure to the benefit of the heirs, executors,
administrators, successors and assigns of an Indemnified Party and any officers,
directors, partners, shareholders, employees and Affiliates of such Indemnified
Party (and any former officer, director, partner, shareholder or employee of
such Indemnified Party, if the Loss was incurred while such Person was an
officer, director, partner, shareholder or employee of such Indemnified Party).
The Managing Member may extend the indemnification called
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for by Section 5.01 to non-employee agents of the LLC or Affiliates of the
Managing Member.
5.04 INSURANCE. The LLC shall have power to purchase and maintain
insurance on behalf of the Managing Member or any director, officer, agent or
employee of the LLC or of the Managing Member against any liability or cost
incurred by such Person in any such capacity or arising out of its status as
such, whether or not the LLC would have power to indemnify against such
liability or cost.
5.05 EMPLOYEE BENEFIT PLAN. If the LLC or the Managing Member sponsors
or undertakes any responsibility as a fiduciary with respect to an employee
benefit plan, then for purposes of this Article (i) "Managing Member" shall be
deemed to include the Managing Member or any officer of the LLC who serves at
the request of the Managing Member in any capacity with respect to said plan,
(ii) the Managing Member or officer shall not be deemed to have failed to act in
good faith or in the reasonable belief that its action was in the best interests
of the LLC if the Managing Member or officer acted in good faith and in the
reasonable belief that its action was in the best interests of the participants
or beneficiaries of said plan, and (iii) "Expenses" shall be deemed to include
any taxes or penalties imposed upon the Managing Member or officer with respect
to said plan under applicable law.
5.06 AMENDMENT. The provisions of this Article may be amended or
repealed in accordance with Section 13.05; however, no amendment or repeal of
such provisions that adversely affects the rights of the Managing Member under
this Article with respect to its acts or omissions at any time prior to such
amendment or repeal, shall apply to the Managing Member without its consent.
ARTICLE VI - CONFLICTS OF INTEREST; ETC.
6.01 TRANSACTIONS WITH INTERESTED PERSONS. Unless entered into in bad
faith, no contract or transaction between the LLC and its Managing Member or
Members, or between the LLC and any other corporation, partnership, association
or other organization in which its Managing Member or Members have a financial
interest or are directors, partners, Managing Member or officers, shall be
voidable solely for this reason or solely because said Managing Member or Member
was present or participated in the authorization of such contract or transaction
if:
(a) the material facts as to the relationship or interest of
said Managing Member or Member and as to the contract or transaction were
disclosed or known to the other Members and the contract or transaction was
authorized by the disinterested Members; or
(b) the contract or transaction was fair to the LLC as of the
time it was authorized, approved or ratified by the disinterested Members;
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and no Managing Member or Member interested in such contract or transaction,
because of such interest, shall be considered to be in breach of this Agreement
or liable to the LLC, any other Member, or any other Person or organization for
any loss or expense incurred by reason of such contract or transaction or shall
be accountable for any gain or profit realized from such contract or
transaction.
6.02 OUTSIDE BUSINESSES. The Managing Member may engage or have an
interest in other business ventures which are similar to or competitive with the
business of the LLC, and the pursuit of such ventures, even if competitive,
shall not be deemed wrongful or improper or give the LLC or the other Members
any rights with respect thereto. The Managing Member shall not be obligated to
present an investment opportunity to the LLC even if it is similar to or
consistent with the business of the LLC, and the Managing Member shall have a
right to take for its own account or recommend to others any such investment
opportunity.
6.03 NO EMPLOYMENT OBLIGATION. Each Employee Member acknowledges that
this Agreement creates no obligation on the part of the Managing Member, ▇▇▇▇▇▇▇
Pacific or any of their Affiliates to continue the employment of an Employee
Member with the Managing Member, ▇▇▇▇▇▇▇ Pacific or any of their Affiliates.
ARTICLE VII - UNITS
7.01 ISSUANCE, ETC.. The Membership Interests of the Employee Members
in the LLC are deemed to be represented by issued and outstanding units of
interest ("Units"). On the date hereof, there are 1000 Units, which are issued
and outstanding and held by Employee Members in the respective amounts set forth
on the signature pages hereto signed by each Employee Member. The Managing
Member shall maintain a schedule of all issued and outstanding Units (the "Units
Schedule"). Except as provided in Section 7.04, additional Units may be issued
to existing Employee Members or other Persons who are officers, directors,
employees and consultants of the Managing Member, ▇▇▇▇▇▇▇ Pacific or their
Affiliates, as the Managing Member, with Board Authorization, may determine in
its sole discretion. Each issued and outstanding Unit shall represent a fraction
of the aggregate Membership Interests of the Employee Members in the LLC with
respect to such class, the numerator of which is one (1) and the denominator of
which is the total number of Units which are then issued and outstanding. For
purposes of voting rights, as specified in Section 3.06 of the Agreement, each
issued and outstanding Unit held by a Voting Employee Member shall be entitled
to one vote.
7.02 FORFEITURE. Except as provided in Sections 7.03 and 7.04, and
notwithstanding any other provision of this Agreement, any Units held by an
Employee Member on the date which such Employee Member ceases to be employed or
retained as a consultant by the Managing Member, ▇▇▇▇▇▇▇ Pacific or any of their
Affiliates (regardless of the reasons for such termination of employment or
consultancy) shall, automatically and without any further action required on the
part of the Managing
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Member or the LLC, cease to be issued and outstanding for all purposes of this
Agreement, and the Person who held such Units shall henceforth cease to be
entitled to vote, hold, or transfer such Units or to have any interest in the
LLC with respect to such Units. All of such interest in the LLC shall be
forfeited to the LLC for no further consideration, and any Capital Account with
respect to such forfeited interest shall be reallocated to the then-remaining
Employee Members (in proportion to the Employee Members' Units, as provided in
Section 7.01). Notwithstanding the foregoing provisions of this Section 7.02,
the Managing Member, acting with Board Authorization, may elect to cause all or
any part of the interest in the LLC represented by any Units which have been
forfeited pursuant to this Section 7.02 or Section 7.03 to be reissued to itself
for no further consideration, in which case any Capital Account with respect to
such reissued interest shall be reallocated to the Managing Member. Any Units
which are held by the Managing Member as a result of the provisions of the
preceding sentence shall entitle the Managing Member to all of the rights of a
holder of such Units as if the Managing Member were an Employee Member,
including without limitation rights to allocations and distributions to be made
to the Employee Members pursuant to Articles IX and X of this Agreement, but not
including voting rights with respect to such Units.
7.03 RETIREMENT, DISABILITY OR DEATH OF EMPLOYEE MEMBER.
Notwithstanding the provisions of Section 7.02, upon an Employee Member's
Retirement, or in the event of an Employee Member's Disability or death, the
interest in the LLC held by the former Employee Member (or, in the case of a
deceased former Employee Member, by any heir, estate or personal representative
of the deceased former Employee Member) shall not be forfeited to the LLC and
the Managing Member shall cause the percentage of the total number of Units held
by the Employee Member at the time of his or her Retirement, Disability or death
(the "Percentage Interest") to be maintained, through the issuance of additional
Units or otherwise; provided, however, that the Person who holds such Units
shall henceforth cease to be entitled to vote any of such Units and the
Percentage Interest shall automatically and without any further action required
on the part of the Managing Member be adjusted as follows: (x) effective as of
the first day of the first Fiscal Year following the Fiscal Year in which such
Retirement, Disability or death occurred, to an amount equal to 50% of the
Percentage Interest, and (y) effective as of the first day of the second Fiscal
Year following the Fiscal Year in which such Retirement, Disability or death
occurred, to an amount equal to 25% of the Percentage Interest. Effective as of
the first day of the third Fiscal Year following the Fiscal Year in which such
Retirement, Disability or death occurred, all of such former Employee Member's
remaining interest in the LLC shall be forfeited to the LLC for no further
consideration, and any Capital Account with respect to such forfeited interest
shall be reallocated to the then-remaining Employee Members (in proportion to
the Employee Members' Units, as provided in Section 7.01).
7.04 CHANGE IN CONTROL. From and after the occurrence of a Change in
Control, (a) no additional Units shall be issued and (b) Units which are issued
and outstanding shall cease to be subject to any forfeiture pursuant to Section
7.02 or reduction pursuant to Section 7.03.
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ARTICLE VIII - CAPITAL ACCOUNTS AND CONTRIBUTIONS
8.01 CAPITAL ACCOUNTS. A separate capital account (a "Capital Account")
shall be maintained for each Member in accordance with Treasury Regulations
Section 1.704-1(b)(2)(iv), and this Section 8.01 shall be interpreted and
applied in a manner consistent with said Section of the Treasury Regulations.
The LLC may adjust the Capital Accounts of its Members to reflect revaluations
of the LLC property whenever it issues additional interests in the LLC
(including any interests with a zero initial Capital Account) or whenever the
adjustment otherwise would be permitted under Treasury Regulations Section
1.704-1(b)(2)(iv)(F). In the event that the Capital Accounts of the Members are
so adjusted, (i) the Capital Accounts of the Members shall be adjusted in
accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(G) for
allocations of depreciation, depletion, amortization and gain or loss, as
computed for book purposes, with respect to such property, (ii) the Members'
distributive shares of depreciation, depletion, amortization and gain or loss,
as computed for tax purposes, with respect to such property shall be determined
so as to take account of the variation between the adjusted tax basis and book
value of such property in the same manner as under Section 704(c) of the Code,
and (iii) the amount of upward and/or downward adjustments to the book value of
LLC property shall be treated as income, gain, deduction and/or loss for
purposes of applying the allocation provisions of Article IX. In the event that
Code Section 704(c) applies to LLC property, the Capital Accounts of the Members
shall be adjusted in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(G) for allocations of depreciation, depletion, amortization
and gain and loss, as computed for book purposes, with respect to such property.
8.02 CONTRIBUTIONS. The Managing Member has made a contribution to the
capital of the LLC with an agreed value equal to its initial capital account
reflected on SCHEDULE B hereto. The Managing Member shall make such additional
contributions to the capital of the LLC as necessary to enable the LLC to make
any required contribution to the capital of, or to fulfill any other present or
future obligation of the LLC to, BPP Retail. In addition, the Managing Member
may make any additional contributions to the capital of the LLC which the
Managing Member may deem necessary or desirable. Except as may be otherwise
agreed, no Employee Member shall be entitled or required to make any
contribution to the capital of the LLC; however, the LLC may borrow from its
Members as well as from banks or other lending institutions to finance its
working capital or the acquisition of assets upon such terms and conditions as
shall be approved by the Managing Member with Board Authorization, and any such
borrowing from Members shall not be considered Contributions or reflected in
their Capital Accounts. The value of all non-cash Contributions made by Members
shall be as agreed in writing by the Managing Member and such Member. No Member
shall be entitled to any interest or compensation with respect to its
Contribution or any services rendered on behalf of the LLC except as
specifically provided in this Agreement or approved by the Managing Member. No
Member shall have any liability for the repayment of the Contribution of
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any other Member and each Member shall look only to the assets of the LLC for
return of its Contribution.
ARTICLE IX - ALLOCATION OF INCOME AND LOSS
9.01 ALLOCATION OF NET INCOME. After giving effect to the special
allocations set forth in Sections 9.03 through 9.09, net income for any Fiscal
Year or portion thereof shall be allocated 100% to the Managing Member.
9.02 ALLOCATION OF NET LOSS. After giving effect to the special
allocations set forth in Sections 9.03 through 9.09 and subject to Section 9.10,
net loss shall be allocated 100% to the Managing Member.
9.03 SPECIAL INCOME ALLOCATION. After giving effect to the special
allocations set forth in Sections 9.04 through 9.09, the Employee Members shall
be specially allocated 100% of the net income of the LLC until the aggregate
amount of net income (including any gross items of income or gain allocated
under this 9.03) allocated to the Employee Members pursuant to this Section 9.03
in all Fiscal Years or portions thereof of the LLC is equal to the aggregate
amount of the distributions made to the Employee Members pursuant to Section
10.02(b). Such allocation to the Employee Members pursuant to this Section 9.03
shall be made to the Employee Members in proportion to excess of the aggregate
amount of the distributions to each such Employee Member pursuant to Section
10.02(b) in all Fiscal Years or portions thereof over the aggregate prior
allocations to such Employee Member pursuant to this Section 9.03 in all Fiscal
Years or portions thereof. If the LLC has insufficient net income to make the
allocation required by the preceding sentence, the LLC shall specially allocate
gross items of income and gain to the Employee Members to the extent of any such
shortfall.
For purposes of determining the amount of distributions made pursuant
to Section 10.02(b), all distributions made, or which will be made, pursuant to
Section 10.03 shall be treated as if made pursuant to Section 10.02(b) to the
extent of the amount that would have been made pursuant to Section 10.02(b) if
this Agreement did not contain Section 10.03. In addition, for purposes of
determining the amount of distributions pursuant to Section 10.02(b),
distributions shall only be taken into account if they are made prior to the
date which is the earlier of (i) the date on which the LLC files its federal
income tax return with respect to the fiscal year for which the allocation
pursuant to this Section 9.03 is being made, or (ii) the date prescribed by law
for the filing of such return (including extensions).
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9.04 QUALIFIED INCOME OFFSET. Any Member who unexpectedly receives an
adjustment, allocation or distribution described in Treasury Regulations Section
l.704-l(b)(2)(ii)(D)(4), (5) or (6) that causes or increases a deficit balance
in its Capital Account (in excess of any deemed deficit restoration obligation
pursuant to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and (i)(5), and adjusted as provided in Treasury Regulations
Section 1.704-1(b)(2)(ii)(D)) shall be allocated items of income and gain in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations, such deficit balance as quickly as possible. This Section
9.04 is intended to comply with the alternate test for economic effect set forth
in Treasury Regulations Section l.704-l(b)(2)(ii)(D) and shall be interpreted
and applied in a manner consistent therewith.
9.05 GROSS INCOME ALLOCATION. In the event any Member has a deficit
Capital Account at the end of any taxable year which is in excess of the sum of
(i) the amount such Member is obligated to restore pursuant to any provision of
this Agreement, and (ii) the amount such Member is deemed to be obligated to
restore pursuant to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated
items of LLC income and gain in the amount of such excess as quickly as
possible, provided that an allocation pursuant to this Section 9.05 shall be
made only if and to the extent that such Member would have a deficit Capital
Account in excess of such sum after all other allocations provided for in this
Article IX have been made as if Section 9.04 and this Section 9.05 were not in
the Agreement.
9.06 NONRECOURSE DEDUCTIONS. Nonrecourse Deductions shall be allocated
among the Members in accordance with Section 9.02. For purposes of this Section
9.06, the term "Nonrecourse Deductions" shall have the meaning set forth in
Treasury Regulations Section 1.704-2(b)(1).
9.07 LLC MINIMUM GAIN CHARGEBACK. Notwithstanding any other provisions
of this Agreement, in the event there is a net decrease in LLC Minimum Gain
during an LLC Fiscal Year, the Members shall be allocated items of income and
gain in accordance with Treasury Regulations Section 1.704-2(f). For purposes of
this Agreement, the term "LLC Minimum Gain" shall have the meaning for
partnership minimum gain set forth in Treasury Regulations Section
1.704-2(b)(2), and any Member's share of LLC Minimum Gain shall be determined in
accordance with Treasury Regulations Section 1.704-2(g)(1). This Section 9.07 is
intended to comply with the minimum gain chargeback requirement of Treasury
Regulations Section 1.704-2(f) and shall be interpreted and applied in a manner
consistent therewith.
9.08 MEMBER NONRECOURSE DEBT. Notwithstanding any other provisions of
this Agreement, to the extent required by Treasury Regulations Section
1.704-2(i), any items of income, gain, deduction, and loss of the LLC that are
attributable to a nonrecourse debt of the LLC that constitutes Member
Nonrecourse Debt (including chargebacks of Member Nonrecourse Debt Minimum Gain)
shall be allocated in accordance with the provisions of Treasury Regulations
Section 1.704-2(i). For purposes of this Agreement,
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the term "Member Nonrecourse Debt" shall have the meaning for partner
nonrecourse debt set forth in Treasury Regulations Section 1.704-2(b)(4), and
the term "Member Nonrecourse Debt Minimum Gain" shall have the meaning for
partner nonrecourse debt minimum gain set forth in Treasury Regulations Section
1.704-2(i)(2). This Section 9.08 is intended to satisfy the requirements of
Treasury Regulations Section 1.704-2(i) (including the partner nonrecourse debt
chargeback requirements) and shall be interpreted and applied in a manner
consistent therewith.
9.09 CURATIVE ALLOCATIONS. The allocations set forth in Sections 9.04,
9.05, 9.06, 9.07, 9.08, and 9.10 (the "Regulatory Allocations") are intended to
comply with the requirements of Treasury Regulations Sections 1.704-1(b) and
1.704-2. Notwithstanding any other provisions of this Article IX (other than the
Regulatory Allocations), the Regulatory Allocations shall be taken into account
in allocating other items of income, gain, deduction, and loss among the Members
so that, to the extent possible, the net amount of such allocations of other
items and the Regulatory Allocations to each Member shall be equal to the net
amount that would have been allocated to each such Member if the Regulatory
Allocations had not occurred. This Section 9.09 shall be interpreted and applied
in such a manner and to such extent as is reasonably necessary to eliminate, as
quickly as possible, permanent economic distortions that would otherwise occur
as a consequence of the Regulatory Allocations in the absence of this Section
9.09.
9.10 LOSS LIMITATION. Net loss allocated pursuant to Section 9.02 shall
not exceed the maximum amount of net loss that can be allocated without causing
or increasing a deficit balance in any Member's Adjusted Capital Account. A
Member's "Adjusted Capital Account" balance shall mean such Member's Capital
Account balance increased by such Member's obligation to restore a deficit in
its Capital Account, including any deemed obligation pursuant to the penultimate
sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), and
decreased by the amounts described in Treasury Regulations Section
1.704-1(b)(2)(ii)(D)(4), (5), or (6). In the event some but not all of the
Members would have deficit balances in their Adjusted Capital Accounts as a
consequence of allocations of net loss pursuant to 9.02 in excess of the amount,
if any, permitted under the preceding sentence, the limitation set forth in this
Section 9.10 shall be applied on a Member by Member basis, and net loss not
allocable to any Member as a result of this limitation shall be allocated to the
other Members in proportion to the positive balances of such Members' Adjusted
Capital Accounts so as to allocate the maximum amount of net loss to each Member
under Treasury Regulations Section 1.704-1(b)(2)(ii)(D).
9.11 DISTRIBUTIONS OF NONRECOURSE LIABILITY PROCEEDS. If, during a
taxable year, the LLC makes a distribution to any Member that is allocable to
the proceeds of any nonrecourse liability of the LLC that is allocable to an
increase in LLC Minimum Gain pursuant to Treasury Regulations Section
1.704-2(h), then the LLC shall elect, to the extent permitted by Treasury
Regulations Section 1.704-2(h)(3), to treat such distribution as a distribution
that is not allocable to an increase in LLC Minimum Gain.
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9.12 COMPLIANCE WITH CODE SECTION 704(B). The allocation provisions
contained in this Article IX are intended to comply with Code Section 704(b) and
the Treasury Regulations promulgated thereunder and shall be interpreted and
applied in a manner consistent therewith.
ARTICLE X - DISTRIBUTIONS
10.01 ORDINARY DISTRIBUTIONS. Subject to Sections 10.02 through 10.04,
all funds and assets of the LLC which are determined by the Managing Member, in
its sole discretion, to be available for distribution shall be distributed 100%
to the Managing Member.
10.02 INCENTIVE DISTRIBUTION. Subject to Section 10.03, the LLC shall
make a distribution to the Members in an amount equal to the Incentive
Distribution derived from BPP Retail, LLC within thirty (30) days after the
receipt of such Incentive Distribution, as follows:
(a) 50% to the Managing Member; and
(b) 50% to the Employee Members (the "Aggregate Employee
Distribution").
Each Employee Member shall receive a portion of the Aggregate Employee
Distribution calculated by multiplying the Aggregate Employee Distribution by a
fraction, the numerator of which shall be the number of issued and outstanding
Units held by such Employee Member and the denominator of which shall be the
total number of issued and outstanding Units held by all Employee Members, both
as of the last day of the Fiscal Year with respect to which the Incentive
Distribution is made to the LLC.
10.03 DISTRIBUTIONS UPON LIQUIDATION OF LLC. Notwithstanding any other
provision of this Agreement to the contrary, in the event the LLC (or a Member's
interest therein) is "liquidated" within the meaning of Treasury Regulations
Section 1.704-1(b)(2)(ii)(G), then any distributions shall be made pursuant to
this Section 10.03 to the Members (or such Member, as appropriate) in accordance
with their positive Capital Accounts in compliance with Treasury Regulations
Section 1.704-1(b)(2)(ii)(B)(2).
10.04 DISTRIBUTION OF BPP RETAIL INTEREST; LIQUIDATION OF BPP RETAIL.
Except upon liquidation of the LLC as provided in Section 11.04, the LLC shall
make no distribution or other Transfer to the Employee Members of all or any
portion of any the membership interest held by the LLC in BPP Retail without (i)
prior to a Change in Control, the consent of the Managing Member, acting with
Board Authorization, or (ii) after a Change in Control, a Majority Vote. In the
event that BPP Retail is terminated or dissolved and its assets are distributed
in kind, then the Managing Member will make a cash contribution to the capital
of the LLC in the amount (if any) necessary to permit the
23
LLC to make, and the LLC shall promptly make, the full amount of the Aggregate
Employee Distribution to the Employee Members in cash as if BPP Retail had made
an Incentive Distribution as of the date of such termination or dissolution
based on a sale of all of the assets of BPP Retail at their fair market value as
of such date.
ARTICLE XI - TRANSFERS OF MEMBERSHIP INTERESTS
11.01 ASSIGNABILITY OF INTERESTS. No Units of an Employee Member in the
LLC may be sold, assigned, transferred, pledged, hypothecated, gifted,
exchanged, optioned or encumbered (each, a "Transfer"), nor, in the case of any
Member which is a permitted assign of an Employee Member and which is not an
individual, may any Transfer of any interest in such Member be made, and no
Transfer shall be binding upon the LLC or any Member, unless it is expressly
permitted by this Article XI and the Managing Member receives an executed copy
of such assignment, which shall be in form and substance reasonably satisfactory
to the Managing Member. The assignee of such Units may become a substitute
Employee Member only upon the terms and conditions set forth in Section 11.02.
No Employee Member's Units may be Transferred except:
(a) to the Managing Member, with its consent;
(b) that, upon the death of an Employee Member, such Employee
Member's Units (subject to the provisions of reduction of Units set forth in
Section 7.03) may be Transferred by will or the laws of descent and
distribution; or
(c) to another Employee Member, with the prior written consent
of the Managing Member, which consent may be granted or withheld by the Managing
Member in its sole discretion.
For all purposes of this Agreement, any Transfers of Units shall be
deemed to occur as of the close of business on the last day of the calendar
month in which any such Transfer would otherwise have occurred.
11.02 TRANSFEREE EMPLOYEE MEMBERS. No transferee of the Units of an
Employee Member shall become a Member except in accordance with this Section
11.02. Any Person that acquires Units by Transfer from another Employee Member
in accordance with the provisions of Section 11.01 may be admitted as a
substituted Employee Member, but only with (i) the consent of the Managing
Member acting with Board Authorization, or (ii) if a Change in Control has
occurred, a Majority Vote (excluding the transferring Employee Member). The
admission of an assignee as an Employee Member shall in all events be
conditioned upon the execution of an instrument satisfactory to the Managing
Member whereby such assignee becomes a party to this Agreement as an Employee
Member. Upon such transferee's admission as an Employee Member, the Managing
Member shall make the appropriate revisions to SCHEDULE A hereto.
24
11.03 ADDITIONAL REQUIREMENTS. As additional conditions to the validity
of (x) any Transfer of an Employee Member's Units (or, in the case of an
Employee Member which is not an individual, the interests of the direct and
indirect beneficial owners of such Employee Member) or (y) the issuance of
additional Units (pursuant to Section 7.01), such Transfer or issuance shall
not: (i) violate the registration provisions of the Securities Act or the
securities laws of any applicable jurisdiction, (ii) cause the LLC to become
subject to regulation as an "investment company" under the Investment Company
Act of 1940, as amended, and the applicable rules and regulations thereunder,
including by resulting in there being one hundred (100) or more beneficial
holders of interests in the LLC, (iii) result in the termination of any contract
to which the LLC is a party and which individually or in the aggregate with
other such contracts are material, or (iv) result in the treatment of the LLC as
an association taxable as a corporation or as a "publicly traded partnership"
for U.S. federal income tax purposes.
The Managing Member may require reasonable evidence as to the
foregoing, including, without limitation, a favorable opinion of counsel.
To the fullest extent permitted by law, any Transfer that violates the
conditions of this Section 11.03 shall be null and void AB INITIO.
11.04 ALLOCATION OF DISTRIBUTIONS BETWEEN ASSIGNOR AND ASSIGNEE;
SUCCESSOR TO CAPITAL ACCOUNTS. Upon the Transfer of Units pursuant to this
Article XI, distributions pursuant to Article X shall be made to the Person
owning the interest in the LLC at the date of distribution, unless the assignor
and assignee otherwise agree and so direct the Managing Member in a written
statement signed by both. In connection with a Transfer by a Member of Units,
the assignee shall succeed to a pro rata (based on the percentage of such
Person's Units transferred) portion of the assignor's Capital Account, unless
the assignor and assignee otherwise agree and so direct the Managing Member in a
written statement signed by both and consented to by the Managing Member.
11.05 TRANSFERS OF MANAGING MEMBER INTEREST. No approval or consent by
any Member shall be required for a Transfer of the Managing Member Interest.
ARTICLE XII - DISSOLUTION, LIQUIDATION, AND TERMINATION
12.01 DISSOLUTION. The LLC shall dissolve and its affairs shall be
wound up upon the first to occur of the following:
(a) the written consent of all of the Members;
(b) the bankruptcy of any Member; PROVIDED, HOWEVER, that the
LLC may be continued with the consent of not less than a "majority in interest"
(as defined in
25
Revenue Procedure 94-46, 1994-2 C.B. 688) the remaining Members, such consent to
be given within ninety (90) days following such event;
(c) the entry of a decree of judicial dissolution under
Section 44 of the LLC Act;
(d) a consolidation or merger of the LLC in which the LLC is
not the resulting or surviving entity;
(e) prior to a Change in Control, by the Managing Member,
acting with Board Authorization, at any time, upon written notice to the other
Members; or
(f) after a Change in Control, by a Majority Vote.
The Managing Member shall promptly notify the Members of the
dissolution of the LLC.
12.02 LIQUIDATION. Upon dissolution of the LLC, the Managing Member
shall act as its liquidating trustee or the Managing Member may appoint one or
more Members as liquidating trustee. The liquidating trustee shall proceed
diligently to liquidate the LLC and wind up its affairs and shall dispose of the
assets of the LLC as follows:
First, to the payment of all debts and liabilities of the LLC,
including expenses of its liquidation;
Second, to the setting up of any reserves which the Managing Member or
the liquidating trustee may deem necessary for any contingent or unforeseen
liabilities or obligations of the LLC or of the Members arising out of or in
connection with the LLC; and
Third, to distribute the balance to the Members in accordance with
Article X.
Until final distribution, the liquidating trustee may continue to operate the
business and properties of the LLC with all of the power and authority of the
Managing Member. As promptly as possible after dissolution and again after final
liquidation, the liquidating trustee shall cause an accounting of the LLC's
assets, liabilities, operations and liquidating distributions to be given to the
Members.
12.03 CERTIFICATE OF CANCELLATION. Upon completion of the distribution
of LLC assets as provided herein, the LLC shall be terminated, and the Managing
Member (or such other Person or Persons as the Act may require or permit) shall
file a Certificate of Cancellation with the Secretary of State of Delaware under
the LLC Act, cancel any other filings made pursuant to Sections 2.01, 2.03 and
2.05, and take such other actions as may be necessary to terminate the existence
of the LLC.
26
ARTICLE XIII - GENERAL PROVISIONS
13.01 OFFSET. Whenever the LLC is obligated to make a distribution or
payment to any Member, any amounts that Member owes the LLC may be deducted from
said distribution or payment by the LLC.
13.02 NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents required or permitted to be given
under this Agreement must be in writing and shall be deemed to have been given
(i) three (3) days after the date mailed by registered or certified mail,
addressed to the recipient, with return receipt requested, (ii) upon delivery to
the recipient in person or by courier, or (iii) upon receipt of a facsimile
transmission by the recipient. Such notices, requests and consents shall be
given (x) to Members at their addresses on SCHEDULE A, or such other address as
a Member may specify by notice to the Managing Member, or (y) to the LLC or the
Managing Member at the address of the principal office of LLC specified in
Section 2.03. Whenever any notice is required to be given by law, the
Certificate or this Agreement, a written waiver thereof, signed by the Person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice.
13.03 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the Members and the Managing Member relating to the LLC and supersedes all
prior contracts or agreements with respect to the LLC, whether oral or written.
13.04 LIMITATION OF LITIGATION; CONSENT TO JURISDICTION. No Member
shall be entitled to initiate or participate in a class action on behalf of all
or any part of the Members against the LLC or any Member, and no Member shall be
entitled to initiate or participate in a derivative suit on behalf of the LLC
against any Member, unless in each case such action or suit has received prior
approval pursuant to a Majority Vote (exclusive of the vote of any Member who is
a defendant party to the proposed action or suit), or unless otherwise required
by law. A Member who initiates an action or suit in violation of this Agreement
shall be liable to the LLC and its Members who are defendant parties for all
damages and expenses which they incur as a result, including without limitation
reasonable fees and expenses of legal counsel and expert witnesses and court
costs. The parties to this Agreement hereby consent to the non-exclusive
jurisdiction of the courts of Massachusetts in connection with any matter or
dispute arising under this Agreement or between them regarding the affairs of
the LLC.
13.05 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by both (i) a written instrument signed by the
Managing Member, acting with Board Authorization, and (ii) a Majority Vote;
PROVIDED, HOWEVER, that (a) an amendment or modification reducing a Member's
outstanding Units or changing adversely the rights of a Member with respect to
distributions, allocations or voting, (other than to reflect the issuance of
additional Units, the admission of new Members or other changes otherwise
provided by this Agreement, or solely as a result of
27
the termination of a Membership Interest in a transaction which does not result
in a Change in Control or a transaction of the kind described in Section 11.05)
shall be effective only with that Member's consent; (b) an amendment or
modification to reflect the admission of a new Member may be approved by the
Managing Member alone and shall not be subject to approval by Members; (c) an
amendment or modification increasing any liability of a Member to the LLC, to
the Managing Member or to the other Members, or adversely affecting the
limitation of the liability of a Member with respect to the LLC, shall be
effective only with that Member's consent; (e) an amendment or modification
reducing the required percentage of outstanding Units for any consent or vote in
this Agreement shall be effective only with the consent or vote of Members
having the percentage of outstanding Units theretofore required; (f) any
amendment or modification to this Agreement which would not reasonably be
expected to affect adversely the rights, privileges or interests of the Employee
Members may be made by a written instrument signed by the Managing Member alone;
and (g) an amendment of this section shall require the consent of all of the
Members.
13.06 BINDING EFFECT. Subject to the restrictions on transfers set
forth in this Agreement, this Agreement is binding on and inures to the benefit
of the parties and their respective heirs, legal representatives, successors and
assigns.
13.07 GOVERNING LAW; SEVERABILITY. This Agreement is governed by and
shall be construed in accordance with the law of the State of Delaware,
exclusive of its conflict-of-laws principles. In the event of a conflict between
the provisions of this Agreement and any provision of the Certificate or the
Act, the applicable provision of this Agreement shall control, to the extent
permitted by law. If any provision of this Agreement or the application thereof
to any Person or circumstance is held invalid or unenforceable to any extent,
the remainder of this Agreement and the application of that provision shall be
enforced to the fullest extent permitted by law.
13.08 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions, as requested by the Managing Member.
13.09 WAIVER OF CERTAIN RIGHTS. Each Member irrevocably waives any
right it may have to maintain any action for dissolution of the LLC or for
partition of the property of the LLC. The failure of any Member to insist upon
strict performance of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure continues, shall not
be a waiver of such Member's right to demand strict compliance herewith in the
future. No consent or waiver, express or implied, to or of any breach or default
in the performance of any obligation hereunder, shall constitute a consent or
waiver to or of any other breach or default in the performance of the same or
any other obligation hereunder.
28
13.10 NOTICE TO MEMBERS OF PROVISIONS OF THIS AGREEMENT. By executing
this Agreement, each Member acknowledges that such Member has actual notice of
(a) all of the provisions of this Agreement, including, without limitation, the
restrictions on the transfer of Membership Interests set forth in Article XI,
and (b) all of the provisions of the Certificate. Each Member hereby agrees that
this Agreement constitutes adequate notice of all such provisions, and each
Member hereby waives any requirement that any further notice thereunder be
given.
13.11 THIRD-PARTY BENEFICIARIES. Except as is expressly set forth in
this Agreement, the provisions of this Agreement are not intended to be for the
benefit of any creditor or other Person to whom any debts or obligations are
owed by, or who may have any claim against, the LLC or any of its Members or the
Managing Member, except for Members or the Managing Member in their capacities
as such. Notwithstanding any contrary provision of this Agreement, no such
creditor or Person shall obtain any rights under this Agreement or shall, by
reason of this Agreement, be permitted to make any claim against the LLC or any
Member or Managing Member.
13.12 INTERPRETATION. For the purposes of this Agreement, terms not
defined in this Agreement shall be defined as provided in the Act; and all
nouns, pronouns and verbs used in this Agreement shall be construed as
masculine, feminine, neuter, singular, or plural, whichever shall be applicable.
Titles or captions of Articles and Sections contained in this Agreement are
inserted as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provision hereof.
13.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all parties had signed the same
document, and all counterparts shall be construed together and shall constitute
the same instrument.
13.14 TAXATION AS PARTNERSHIP. The LLC shall be treated as a
partnership for United States federal income tax purposes and the Members agree
not to take any action inconsistent with the LLC's classification as a
partnership for United States federal income tax purposes.
29
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Managing Member: ▇▇▇▇▇▇▇ PACIFIC
OPERATING PARTNERSHIP, L.P.
By: ▇▇▇▇▇▇▇ Pacific Properties, Inc.,
its General Partner
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
30
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 200 Units
31
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 100 Units
32
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 100 Units
33
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 100 Units
34
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 100 Units
35
IN WITNESS WHEREOF, the Managing Member and each Employee
Member have executed this Limited Liability Company Agreement, dated as of
June 1, 1999, in counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
36
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
37
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 40 Units
38
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 60 Units
39
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 15 Units
40
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 15 Units
41
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
42
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
43
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
44
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 20 Units
45
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 10 Units
46
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 10 Units
47
IN WITNESS WHEREOF, the Managing Member and each Employee Member have
executed this Limited Liability Company Agreement, dated as of June 1, 1999, in
counterparts as of the date thereof.
Employee Member:
▇▇▇▇▇▇▇ PACIFIC OPERATING
PARTNERSHIP, L.P.
By: ▇▇▇▇▇▇▇ Pacific Properties, Inc.,
its General Partner
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
Number of issued and outstanding Units held by the above
Employee Member upon adoption of the Agreement: 130 Units
48
▇▇▇▇▇▇▇ PACIFIC EMPLOYEES LLC
SCHEDULE A
NAME AND ADDRESS OF MANAGING MEMBER:
▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NAMES AND ADDRESSES OF EMPLOYEE MEMBERS:
J. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P. , ▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇,
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▇▇▇▇▇▇▇ PACIFIC EMPLOYEES LLC
SCHEDULE B
to
Limited Liability Company Agreement
Members: Initial Capital Account:
MANAGING MEMBER:
▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P.
EMPLOYEE MEMBERS:
J. ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P.
50