EXHIBIT 10.6
OPERATING AGREEMENT
OF
CRIT-NC III, LLC
This Operating Agreement (this "Agreement") is made as of March 6, 2001
by and between CRIT-NC III, LLC, a Delaware limited liability company (the
"Company"), and CRIT Special II, Inc., a Virginia corporation (the "Sole
Member").
RECITALS
The Company was organized as a Delaware limited liability company
pursuant to a Certificate of Formation filed on March 5, 2001. The Company is
owned by the Sole Member and has no intention of admitting additional members.
ARTICLE I
DEFINITIONS, PURPOSE AND GENERAL MATTERS
1.1 PURPOSE. The purpose of the Company is to engage in any lawful
activity. Without limiting the scope of the foregoing, the Company is authorized
(a) to acquire from Cornerstone Realty Income Trust, Inc., a Virginia
corporation, those certain parcels of real property listed on Exhibit A hereto,
together with all improvements located thereon (collectively, the "Properties");
and (b) to own, hold, sell, assign, transfer, operate, lease, mortgage, pledge
and otherwise deal with the Properties.
1.2 OPERATING NAMES. The Company may operate under its own name and
under such assumed names as it deems appropriate or convenient.
1.3 QUALIFICATIONS IN OTHER JURISDICTIONS. If required by law, the
Company shall promptly qualify or register to transact business in all
jurisdictions in which it transacts business as a foreign limited liability
company.
1.4 LIMITED LIABILITY. No member or manager of the Company shall be
personally obligated for any debt, obligation or liability of the Company solely
by reason of being a member or acting as a manager, except as may be required by
applicable law. Such limited liability shall exist to the maximum extent
permitted by the Delaware Limited Liability Company Act, as it may be amended or
replaced from time to time (the "Act"). As of the date of this Agreement, the
Act is set forth in sections 18-101 through -1109 of Title 6 of the Delaware
Code.
1.5 STATUS OF AGREEMENT. This Agreement is intended to serve as a
"limited liability company agreement" within the meaning of the Act.
ARTICLE II
MEMBERSHIP
2.1 ADMISSION OF ADDITIONAL MEMBERS. The Company shall not admit a
member in addition to the Sole Member unless all of the following requirements
are satisfied: (a) the Sole Member grants prior written consent to the admission
of the additional member; (b) the Company and the Sole Member amend or replace
this Agreement as may be necessary or appropriate for the purpose of addressing
any issues raised by joint or multiple ownership of the Company; and (c) each
person or entity who seeks to be admitted as a member of the Company executes
the current Operating Agreement of the Company, as amended or replaced in
accordance with the preceding clause , and makes any required capital
contributions to the Company in full.
2.2 RESIGNATION. The Sole Member shall not resign or withdraw from the
Company, except by operation of law or by transferring its entire interest in
the Company in accordance with this Agreement.
ARTICLE III
MANAGEMENT, PROHIBITED ACTIVITIES AND SEPARATENESS COVENANTS
3.1 APPOINTMENT OF MANAGER. The Company shall be managed by a single
manager (the "Manager"). The Manager may be a person or an entity. The initial
Manager of the Company shall be the Sole Member, who shall not resign as the
Manager unless a qualified replacement Manager has agreed to become the Manager
upon such resignation.
3.2 TERM OF MANAGER. The Manager's term shall continue until the
Manager's resignation, termination by operation of law or death (as applicable
for the then current Manager), or removal by the Company. The Company shall be
entitled, in its sole discretion, to remove or replace the Manager at any time
and for any reason.
3.3 AUTHORITY OF MANAGER. The Manager shall have the authority to act
on behalf of the Company to the maximum extent permitted by the Act. Without
limiting the scope of the foregoing, the Manager shall be entitled to appoint
any officers of the Company (the "Officers") and to establish the authority,
duties, terms and compensation (if any) of the Officers. The parties acknowledge
and agree that the Officers also may hold offices in corporations, including but
not limited to corporations affiliated with the Sole Member.
3.4 EXPENSES AND REIMBURSEMENT. The Company shall be responsible for
all expenses, costs and liabilities arising from the management, organization or
operation of the Company in accordance with this Agreement ("Company Expenses").
The Manager and the Officers shall be entitled to receive prompt reimbursement
from the Company to the extent, if any, that they incur any Company Expenses,
unless such Company Expenses arose from a violation of this Agreement, willful
misconduct or knowing violation of criminal law.
3.5 MANAGEMENT COMPENSATION. No salary or other compensation shall be
paid to the Manager for the Manager's actions on behalf of the Company.
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3.6 CERTAIN PROHIBITED ACTIVITIES. Notwithstanding any provision hereof
to the contrary, the following shall govern:
(a) The indebtedness of the Company shall consist only of a
first lien mortgage on the Properties arising from financing by First Union
National Bank (the "Mortgage"), any other indebtedness permitted under the
Mortgage, and normal trade accounts payable in the ordinary course of business.
For so long as any obligation secured by the Mortgage remains outstanding and
not paid in full, the Company shall not incur, assume, or guaranty any
indebtedness not permitted hereunder.
(b) The Company shall not consolidate or merge with or into
any other entity, or convey or transfer its properties and assets substantially
as an entirety to any entity, unless:
(i) the entity that is formed upon such
consolidation, that survives such merger (if other than the Company), or that
acquires by conveyance or transfer the properties and assets of the Company
substantially as an entirety, shall: (A) be organized and existing under the
laws of the United States of America or any State or the District of Columbia,
(B) include in its organizational documents the same limitations set forth in
this Article II and in Section 2.4 hereof (Separateness Covenants), and (C)
expressly assume the due and timely performance of the Company's obligations;
and
(ii) immediately after giving effect to such
transaction, no default or event of default will have occurred under any
agreement to which the Company is a party.
(c) For so long as any obligation secured by the Mortgage
remains outstanding and not paid in full, the Company shall not voluntarily
commence a case with respect to itself, as debtor, under the Federal Bankruptcy
Code or any similar federal or state statute without the unanimous consent of
the Sole Member's Board of Directors. For so long as any obligation secured by
the Mortgage remains outstanding and not paid in full, no material amendment to
this Company Agreement may be made without the prior approval of the mortgagee
holding the Mortgage.
3.7 SEPARATENESS COVENANTS. Notwithstanding any provision hereof to the
contrary, the following shall govern: For so long as any obligation secured by
the Mortgage remains outstanding and not paid in full, in order to preserve and
ensure the Company's separate and distinct identity, in addition to the other
provisions set forth in this Company Agreement, the Company shall conduct its
affairs in accordance with the following provisions:
(a) It shall establish and maintain an office through which
its business shall be conducted separate and apart from those of the Sole Member
and any affiliate and it shall allocate fairly and reasonably any overhead for
shared office space.
(b) It shall maintain separate records and books of account
from those of the Sole Member and any affiliate.
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(c) All actions by the Company shall be authorized by the Sole
Member, who shall observe all necessary formalities in connection with such
authorization.
(d) It shall not commingle assets with those of the Sole
Member or any affiliate.
(e) It shall conduct its own business in its own name.
(f) It shall maintain financial statements separate from the
Sole Member and any affiliate.
(g) It shall pay any liabilities out of its own funds,
including salaries of any employees, not funds of the Sole Member or any
affiliate.
(h) It shall maintain an arm's length relationship with the
Sole Member and any affiliate.
(i) It shall not guarantee or become obligated for the debts
of any other person or entity (including, without limitation, the Sole Member or
any affiliate) and shall not hold out its credit as being available to satisfy
the obligations of others.
(j) It shall use stationery, invoices and checks separate from
the Sole Member and any affiliate.
(k) It shall not pledge its assets for the benefit of any
other person or entity (including, without limitation, the Sole Member or any
affiliate).
(l) It shall hold itself out as an entity separate from the
Sole Member and any affiliate.
(m) It shall not make any loans or advances to any third party
(including, without limitation, any affiliate).
(n) It shall comply with its obligations under the agreements
and instruments evidencing the Mortgage.
3.8 DEFINITIONS. For purpose of this Article III, the following terms
shall have the indicated meanings:
(a) "affiliate" means, with respect to a specified person or
entity:
(i) any person or entity directly or indirectly
owning, controlling or holding with power to vote ten percent (10%) or more of
the outstanding voting securities or interests of the specified entity;
(ii) any person or entity ten percent (10%) or more
of whose outstanding voting securities or interests are directly or indirectly
owned, controlled or held with power to vote by the specified person or entity;
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(iii) any person or entity directly or indirectly
controlling, controlled by or under common control with the specified person or
entity;
(iv) any officer, director or partner of the
specified person or entity;
(v) if the specified person or entity is an officer,
director or partner, any company for which the specified person or entity acts
in any such capacity; and
(vi) any close relative or spouse of the specified
person.
(b) "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract or
otherwise.
(c) "person or entity" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated organization,
government or any agency or political subdivision thereof.
ARTICLE IV
CAPITAL AND DISTRIBUTIONS
4.1 CAPITAL CONTRIBUTIONS. The Sole Member has made an initial capital
contribution to the Company, and shall be entitled, in its sole discretion, to
make additional capital contributions to the Company. All such capital
contributions are shown on Exhibit B to this Agreement, which shall be amended
as necessary from time to time.
4.2 LOANS. Any loans from the Sole Member to the Company shall be made
on commercially reasonable terms and conditions, and shall not be considered
capital contributions.
4.3 DISTRIBUTIONS. The Company shall make annual distributions of any
cash amounts that, in the reasonable determination of the Manager, are not
necessary for the Company's operations, expenses or reserves. The Manager is
entitled to authorize more frequent distributions of such cash amounts in the
Manager's sole discretion.
ARTICLE V
TRANSFER OF INTEREST
5.1 RESTRICTION. The Sole Member shall be prohibited from assigning,
selling, exchanging or otherwise transferring its interest in the Company unless
all of the following requirements are satisfied: (a) the proposed transaction
would apply to the entire interest of the Sole Member in the Company; (b) the
proposed transaction would involve one transferee; (c) the prospective
transferee tenders full payment of the required purchase price and executes a
counterpart signature page to this Agreement as a member of the Company; and (d)
the Company receives an opinion from its legal counsel, satisfactory to the
Company in form and
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substance, confirming that the proposed transaction would not violate any
federal or state securities laws or any other applicable laws.
5.2 EFFECT OF TRANSFER. If the Sole Member transfers its entire
interest in the Company in accordance with this Agreement, such transfer shall
operate, upon completion, as the complete resignation or withdrawal of the Sole
Member from the Company.
5.3 RELATED MATTERS. Any transaction that is subject to this Article
and that fails in any way to comply with its provisions shall be ineffective and
void.
ARTICLE VI
TAX MATTERS
6.1 TAX CLASSIFICATION. The Company shall be disregarded as an entity
separate from the Sole Member for federal income tax purposes in accordance with
the Internal Revenue Code of 1986, as amended, and section 301.7701-3(b)(1)(ii)
of the Treasury Regulations thereunder (or any successor provisions thereof).
6.2 TAX FILINGS. The Company shall make such filings as may be required
to maintain its tax classification as a disregarded entity for income tax
purposes. The Company may obtain a federal tax identification number for
business purposes, and such action shall not be construed as a change to the
Company's tax classification as a disregarded entity.
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
7.1 DEFINITIONS. As used in this Article, the term "Affiliate" shall
refer to the Sole Member, the Manager (if different from the Sole Member) and
the Officers, and each employee, director and officer of the Sole Member or the
Manager.
7.2 INDEMNIFICATION. The Company shall indemnify each Affiliate against
any and all claims, liabilities, costs and expenses (including but not limited
to reasonable legal fees and costs) arising directly or indirectly from any
suit, action, investigation or other proceeding (whether formal or informal)
that (a) is brought or threatened against an Affiliate; and (b) is based on the
acts or omissions of such Affiliate on behalf of the Company, unless such acts
or omissions violated this Agreement, constituted willful misconduct or resulted
from a knowing violation of criminal law. The Company shall have no obligation
to indemnify an Affiliate to the extent, if any, that the Affiliate is entitled
to be indemnified by another source, such as, without limitation, an insurance
company.
7.3 REIMBURSEMENT. If an Affiliate incurs or pays any indemnified cost,
the Company shall reimburse the Affiliate for the full amount of such
indemnified cost. Such reimbursement shall be due promptly after the Company
receives (a) a written request for reimbursement from the Affiliate; (b) all
information necessary to establish the nature and amount of the indemnified cost
that was incurred or paid by the Affiliate; and (c) a written agreement by the
Affiliate to repay such reimbursement if the Company subsequently determines
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that the Affiliate was not entitled to indemnification or if the Affiliate
subsequently receives reimbursement from another source, such as, without
limitation, an insurance company.
ARTICLE VIII
DISSOLUTION
8.1 EVENTS OF DISSOLUTION. The Company shall dissolve upon the
occurrence of any of the following events: (a) the written instruction of the
Sole Member; or (b) any event requiring dissolution under the Act.
8.2 WINDING UP OF AFFAIRS. Upon the dissolution of the Company, the
Manager shall wind up the affairs of the Company. The Manager shall determine
the time, place, manner and other terms of any sales involving the Company's
assets, with due regard to the activity and the condition of the Company and the
relevant market and economic conditions.
8.3 FINAL DISTRIBUTIONS. Upon the dissolution of the Company, and
subject to the requirements of the Act, the Manager shall distribute the assets
of the Company in the following order of priority:
(a) first, to any creditors of the Company;
(b) second, to known and reasonably estimated costs of
dissolution and winding up;
(c) third, to any reserves established by the Manager, in the
sole discretion thereof, for contingent liabilities of the Company; and
(d) fourth, to the Sole Member.
8.4 FILING OF CERTIFICATE OF CANCELLATION. Following the winding up of
the Company, the Manager shall be responsible for filing, if necessary, a
Certificate of Cancellation on behalf of the Company with the Delaware Secretary
of State, together with any other documents required to terminate the Company
and its legal existence.
ARTICLE IX
ADMINISTRATION
9.1 OFFICES. The Company's initial registered office and registered
agent shall be as designated in its Certificate of Formation. The Manager shall
be entitled to change such designations from time to time, in the Manager's sole
discretion, subject to any requirements of the Act.
9.2 INFORMATION AND RECORDS. The Company shall keep accurate and
complete information and records at its principal office (the "Company
Records").
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9.3 INSPECTION. Upon prior notice to the Company of at least two (2)
business days, any designated representative of the Sole Member shall be
entitled, during normal business hours, to inspect the Company Records and to
copy them at the expense of the Sole Member.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 GOVERNING LAW. The laws of the State of Delaware (without regard
to those laws involving choice of law) shall govern this Agreement and all
matters relating to its interpretation or enforcement.
10.2 OTHER AGREEMENTS. Any prior operating agreements with respect to
the Company, whether oral or written, have been merged and integrated into this
Agreement and are superseded by this Agreement.
10.3 MODIFICATIONS AND WAIVERS. Modifications of this Agreement shall
not be binding, valid or enforceable unless they are approved in writing by each
of the parties. Any modification or waiver of a provision in this Agreement
shall be limited to that provision and the occasion on which it occurred, and
shall not be construed as a modification or waiver with respect to any other
provision or occasion.
10.4 ENFORCEABLE PROVISIONS. All provisions in this Agreement are
severable and each valid and enforceable provision shall remain in full force
and effect, regardless of any judicial or other official declaration that
certain provisions are invalid or unenforceable.
10.5 CAPTIONS AND HEADINGS. Captions and headings are used in this
Agreement for convenience only and shall not affect its interpretation or
enforcement. Terms such as "hereof," "hereby," "hereto," "herein" and
"hereunder" shall be deemed to refer to this Agreement as a whole, rather than
to any particular provision.
10.6 SUCCESSORS. This Agreement shall be binding upon, and enforceable
against, the parties and all of their permitted assignees and successors in
title or interest.
10.7 EXCLUSION OF THIRD PARTY BENEFIT. This Agreement is not intended
for the benefit of any person or entity who is not a party to this Agreement
(such as, without limitation, a creditor of the Company or of the Sole Member),
and no such person or entity shall have any rights in connection with this
Agreement, whether for enforcement or otherwise.
10.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which shall constitute, when
taken together, a single instrument.
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WITNESS the following signatures:
COMPANY: CRIT-NC III, LLC
a Delaware limited liability company
By: CRIT Special II, Inc.
Its: Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
SOLE MEMBER: CRIT Special II, Inc.
a Virginia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
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Exhibit A
(List of Properties)
The Properties consist of those real properties, together with all improvements
thereon, that are located at the following addresses:
Highland Hills Apartments
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Exhibit B
Capital Contribution(s)
Name and Address Amount of Type of Date of
of Member Capital Contribution Contribution Contribution
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CRIT Special II, Inc. $100.00 Cash March 6, 2001
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