LIMITED LIABILITY COMPANY AGREEMENT OF SGO MN RETAIL ACQUISITIONS VENTURE, LLC Dated as of September 30, 2015

 

EXHIBIT 10.1

 

LIMITED LIABILITY COMPANY AGREEMENT

 

OF

 

SGO MN RETAIL ACQUISITIONS VENTURE, LLC

 

Dated as of September 30, 2015

 

THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE DELAWARE SECURITIES ACT, OR OTHER SIMILAR FEDERAL OR STATE STATUTES OR AGENCIES IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION AS PROVIDED IN THOSE STATUTES. THE SALE, ASSIGNMENT, TRANSFER, EXCHANGE, MORTGAGE, PLEDGE OR OTHER DISPOSITION OF ANY LIMITED LIABILITY COMPANY INTEREST IS RESTRICTED IN ACCORDANCE WITH THE PROVISIONS OF THIS LIMITED LIABILITY COMPANY AGREEMENT, AND THE EFFECTIVENESS OF ANY SUCH SALE OR OTHER DISPOSITION MAY BE CONDITIONED UPON, AMONG OTHER THINGS, RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE DELAWARE SECURITIES ACT AND OTHER APPLICABLE FEDERAL OR STATE STATUTES. BY ACQUIRING THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT, EACH MEMBER REPRESENTS THAT IT WILL NOT SELL OR OTHERWISE DISPOSE OF ITS LIMITED LIABILITY COMPANY INTERESTS WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH THE AFORESAID STATUTES AND RULES AND REGULATIONS THEREUNDER AND THE TERMS AND PROVISIONS OF THIS LIMITED LIABILITY COMPANY AGREEMENT.

 

 

Table of Contents

 

		Page
ARTICLE I DEFINED TERMS		1
1.01	Defined Terms	1
1.02	Other Defined Terms	16
ARTICLE II ORGANIZATION		16
2.01	FORMATION	16
2.02	Name and Principal Place of Business	17
2.03	Term	17
2.04	Registered Agent and Registered Office	17
2.05	Purpose	17
2.06	Company Property	18
ARTICLE III MEMBERS		18
3.01	Members	18
3.02	Limitation On Liability	19
3.03	Waiver of Other Rights	19
3.04	No Certificated Interests	19
3.05	INTENTIONALLY DELETED	19
ARTICLE IV CAPITAL		19
4.01	Initial Capital Contributions	19
4.02	Category A Additional Capital Contributions	21
4.03	Category B Additional Capital Contributions	25
4.04	Capital Accounts	28
4.05	No Further Capital Contributions	29
4.06	Loans	30
ARTICLE V INTERESTS IN THE COMPANY		30
5.01	Percentage Interest	30
5.02	Return of Capital	30
5.03	Ownership	31
5.04	Waiver of Partition; Nature of Interests in the Company	31

 

 

Table of Contents

(continued)

 

		Page
ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS		31
6.01	ALLOCATION OF PROFITS AND LOSSEs	31
6.02	Allocations and Compliance with Section 704(b)	32
6.03	Category a Distributions and Payments	34
6.04	Category B Distributions and Payments	35
6.05	Category a Special Payments and Distributions	36
6.06	Category B Special Payments and Distributions	37
6.07	Distributions in Liquidation	39
6.08	Tax Matters	40
6.09	Tax Matters Partner	40
6.10	Allocations for Income Tax Purposes	40
ARTICLE VII MANAGEMENT		41
7.01	Management	41
7.02	MN Retail Consultant	46
7.03	Duties of managing member	46
7.04	Services and Fees	51
7.05	Duties and Conflicts	52
7.06	Company Expenses	55
ARTICLE VIII BOOKS AND RECORDS		56
8.01	Books and Records	56
8.02	Accounting and Fiscal Year	56
8.03	Reports	56
8.04	The Company Accountant	58
8.05	Reserves	58
8.06	The Budget and Operating Plan	59
8.07	Accounts	59
ARTICLE IX TRANSFER OF INTERESTS		60
9.01	No Transfer	60
9.02	Permitted Transfers	60

 

 

Table of Contents

(continued)

 

		Page
9.03	Transferees	60
9.04	Section 754 Election	61
9.05	INTENTIONALLY OMITTED	61
9.06	MN Retail’s Right to Force Sale	61
ARTICLE X EXCULPATION AND INDEMNIFICATION		65
10.01	Exculpation	65
10.02	Indemnification	65
ARTICLE XI DISSOLUTION AND TERMINATION		67
11.01	Dissolution	67
11.02	Termination	67
11.03	Liquidating Member	68
11.04	Claims of the Members	69
ARTICLE XII DEFAULT BY MEMBER		69
12.01	Events of Default	69
12.02	Effect of Event of Default	69
ARTICLE XIII REPRESENTATIONS, WARRANTIES AND COVENANTS		70
13.01	Representations and Warranties of the Members	70
ARTICLE XIV MISCELLANEOUS		79
14.01	Further Assurances	79
14.02	Notices	79
14.03	Governing Law	81
14.04	Attorney Fees	81
14.05	Captions	81
14.06	Pronouns	81
14.07	Successors and Assigns	81
14.08	Extension Not a Waiver	81
14.09	Creditors Not Benefited	81
14.10	Recalculation of Interest	82
14.11	Severability	82

 

 

Table of Contents

(continued)

 

		Page
14.12	Entire Agreement	82
14.13	Publicity	82
14.14	Counterparts	82
14.15	Confidentiality	83
14.16	Venue	84
14.17	Waiver of Jury Trial	84
14.18	Attorney Representation	84
14.19	Cooperation	84

 

 

LIMITED LIABILITY COMPANY AGREEMENT
OF
SGO MN RETAIL ACQUISITIONS VENTURE, LLC

 

This LIMITED LIABILITY COMPANY AGREEMENT (as may be amended, modified, supplemented or restated from time to time, this “Agreement”) of SGO MN RETAIL ACQUISITIONS VENTURE, LLC, a Delaware limited liability company, is made and entered into as of September 30, 2015 (the “Effective Date”), by and between MN RETAIL GRAND AVENUE PARTNERS, LLC, a Delaware limited liability company (“MN Retail”), GLB SGO MN, LLC, a Delaware limited liability company (“Operating Member”), SRT TRS, LLC, a Delaware limited liability company (“TRS”), and SRT SGO MN, LLC a Delaware limited liability company (“REIT”).

 

WHEREAS, the Company (as hereinafter defined) was formed pursuant to a Certificate of Formation dated as of August 6, 2015 and filed with the Secretary of State of Delaware on August 7, 2015 (the “Certificate of Formation”);

 

WHEREAS, pursuant to the terms of the Purchase Agreement (as hereinafter defined), the Company has contracted to acquire the certain property.

 

WHEREAS, the Company Property is comprised of the Category A Property and the Category B Property. All Capital Contributions, Net Cash Flow and Profits and Losses attributable to the Category A Property shall be allocated solely to the Category A Members. All Capital Contributions, Net Cash Flow and Profits and Losses attributable to the Category B Property shall be allocated solely to the Category B Members. Separate books and records shall be kept with respect to the Category A Property and the Category B Property such that there shall be no comingling of any Capital Contributions, Net Cash Flow, Profits or Losses with respect to the Category A Property and the Category B Property.

 

WHEREAS, MN Retail, TRS, REIT and Operating Member desire to enter into this Agreement to, among other things, allocate rights and obligations with respect to the acquisition, management and ownership of the Company Property.

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

ARTICLE I
DEFINED TERMS

 

1.01

Defined Terms

 

As used in this Agreement, the following terms have the meanings set forth below:

 

“Additional Capital Contributions” means Category A Additional Capital Contributions and Category B Additional Capital Contributions.

 

 

“Adjusted Capital Account” means, with respect to any Member for any taxable year or other period, the balance in such Member’s Capital Account as of the end of such year or other period, after giving effect to the following adjustments:

 

(a)          Credit to such Capital Account any amounts that such Member is obligated to restore or is deemed obligated to restore as described in the penultimate sentence of Treasury Regulation Section 1.704-2(g)(1) and in Treasury Regulation Section 1.704-2(i); and

 

(b)         Debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

 

“Adjusted Capital Account Deficit” means, with respect to any Member for any taxable year or other period, the deficit balance, if any, in such Member’s Adjusted Capital Account as of the end of such year or other period.

 

“Affiliated” or “Affiliate” means, with respect to any Person, (i) any Person who directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such Person, (ii) any Person who is an Immediate Family Member of such Person or (iii) any Person in which such Person or one or more of the Immediate Family Members of such Person has a ten percent (10%) or more direct or indirect beneficial interest (whether an initial, residual or contingent interest) or as to which such Person, directly or indirectly, serves as a managing member, general partner, trustee or in a similar fiduciary or management capacity.

 

“Agreement” has the meaning set forth in the introductory paragraph hereof.

 

“Bankruptcy” means the occurrence of any of the following events with respect to a particular Person: (a) the filing by such Person of an application for, or a consent to, the appointment of a trustee for such Person’s assets; (b) the filing by such Person of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (c) the making by such Person of a general assignment for the benefit of creditors; (d) the filing by such Person of an answer admitting the material allegations of, or its consenting to or defaulting in answering, a bankruptcy petition filed against it in any bankruptcy proceeding; or (e) the entry of an order, judgment, or decree by any court of competent jurisdiction adjudicating such Person a bankrupt or appointing a trustee of its assets, and such order, judgment, or decree continues unstayed and in effect for a period of one hundred twenty (120) days.

 

 

“Book Basis” means, with respect to any asset of the Company, the adjusted basis of such asset for federal income tax purposes; provided, however, that (a) if any asset is contributed to the Company, the initial Book Basis of such asset shall equal its fair market value on the date of contribution, and (b) the Book Basis of all Company Property shall be adjusted to equal their respective gross fair market values, as determined by MN RETAIL, as of the following times: (i) the acquisition of an additional Interest by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an Interest; (iii) in connection with the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); and (iv) any other instance in which such adjustment is permitted under Treasury Regulation Section 1.704-1(b)(2)(iv); provided, however, that adjustments pursuant to clauses (i), (ii) and (iv) above shall be made only if MN Retail determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. The Book Basis of all assets of the Company shall be adjusted thereafter by depreciation as provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(g) and any other adjustment to the basis of such assets other than depreciation or amortization.

 

“Budget” means the budget covering the Company’s anticipated operations (i) approved by MN Retail in accordance with the terms of this Agreement and (ii) in effect pursuant to Section 8.06.

 

“Business Day” means any day other than Saturday, Sunday, any day that is a legal holiday in the State of California or New York, or any other day on which banking institutions in California or New York are authorized to close. For the avoidance of doubt, any reference to “day(s)” (and not “Business Days”) in this Agreement shall mean calendar days.

 

“Capital Account” means the separate account maintained for each Member under Section 4.04.

 

“Capital Contribution” means the Category A Capital Contributions and the Category B Capital Contributions.

 

“Category A Additional Capital Contributions” has the meaning set forth in Section 4.02(a).

 

“Category A Capital Contribution” means, with respect to a Category A Member, all Category A Initial Capital Contributions and Category A Additional Capital Contributions by such Category A Member to the Company pursuant to this Agreement; provided, however, that any amount returned by a Category A Member pursuant to the proviso in Section 4.02(a), the proviso in Section 4.06, or Section 6.03, shall be treated as a contribution of capital to the Company (but not as a Category A Capital Contribution for the purposes hereof) and shall be treated as if such returned amount was not previously distributed to such Category A Member.

 

“Category A Contributing Member” has the meaning set forth in Section 4.02(c).

 

“Category A Contribution Deadline” has the meaning set forth in Section 4.02(a).

 

“Category A Excess Amounts” has the meaning set forth in Section 4.02(c).

 

“Category A Gross Adjusted Capital Contributions” means the Gross Adjusted Capital Contributions attributable to the Category A Property.

 

 

“Category A Initial Capital Contributions” means the Capital Contributions made pursuant to Section 4.01(b)(i).

 

“Category A Interest” means, with respect to any Category A Member at any time, the interest of such Category A Member in the Company at such time, including the right of such Category A Member to any and all of the benefits to which such Category A Member may be entitled as provided in this Agreement, together with the obligations of such Category A Member to comply with all of the terms and provisions of this Agreement.

 

“Category A Member” means MN Retail, TRS and/or Operating Member, or any other Person who is admitted as a Category A Member of the Company in accordance with this Agreement and applicable law.

 

“Category A Net Cash Flow” means the Net Cash Flow attributable to the Category A Property.

 

“Category A Non-Contributing Member” has the meaning set forth in Section 4.02(c).

 

“Category A Percentage Interest” means with regard to each Category A Member the percentage set forth below opposite its name (in each case subject to adjustment as provided in this Agreement):

 

Member		Percentage Interest
MN Retail			80	%
TRS			10	%
Operating Member			10	%

 

“Category A Property” means the portion of the “Property” as defined in the Purchase Agreement which is identified on Schedule B-1 hereto, and related personal property, to be acquired by the Property Companies from Seller pursuant to the Purchase Agreement.

 

“Category A Shortfall” has the meaning set forth in Section 4.02(a).

 

“Category A Shortfall Advance” has the meaning set forth in Section 4.02(d).

 

“Category A Shortfall Capital Contribution” has the meaning set forth in Section 4.02(d).

 

“Category A Shortfall Contributing Member” has the meaning set forth in Section 4.02(d).

 

“Category A Shortfall Election” shall mean, in the event of a Category A Shortfall, an election pursuant to Section 4.02(d) or Section 4.04(d), to either treat the entire Category A Shortfall as (i) a Category A Shortfall Loan or (ii) a Category A Shortfall Capital Contribution.

 

 

“Category A Shortfall Loan” shall mean the option, under a Category A Shortfall Election, to treat Category A Shortfall Advances as a loan to the Company instead of a Category A Shortfall Capital Contribution.

 

“Category A Substituted Capital Contributions” has the meaning set forth in Section 4.02(c).

 

“Category B Additional Capital Contributions” has the meaning set forth in Section 4.03(a).

 

“Category B Capital Contribution” means, with respect to a Category B Member, all Category B Initial Capital Contributions and Category B Additional Capital Contributions by such Category B Member to the Company pursuant to this Agreement; provided, however, that any amount returned by a Category B Member pursuant to the proviso in Section 4.03(a), the proviso in Section 4.06, or Section 6.04, shall be treated as a contribution of capital to the Company (but not as a Category B Capital Contribution for the purposes hereof) and shall be treated as if such returned amount was not previously distributed to such Category B Member.

 

“Category B Contributing Member” has the meaning set forth in Section 4.03(c).

 

“Category B Contribution Deadline” has the meaning set forth in Section 4.03(a).

 

“Category B Excess Amounts” has the meaning set forth in Section 4.03(c).

 

“Category B Gross Adjusted Capital Contributions” means the Gross Adjusted Capital Contributions attributable to the Category B Property.

 

“Category B Initial Capital Contributions” means the Capital Contributions made pursuant to Section 4.01(b)(ii).

 

“Category B Interest” means, with respect to any Category B Member at any time, the interest of such Category B Member in the Company at such time, including the right of such Category B Member to any and all of the benefits to which such Category B Member may be entitled as provided in this Agreement, together with the obligations of such Category B Member to comply with all of the terms and provisions of this Agreement.

 

“Category B Member” means MN Retail, REIT and/or Operating Member, or any other Person who is admitted as a Category B Member of the Company in accordance with this Agreement and applicable law.

 

“Category B Net Cash Flow” means the Net Cash Flow attributable to the Category B Property.

 

“Category B Non-Contributing Member” has the meaning set forth in Section 4.03(c).

 

 

“Category B Percentage Interest” means with regard to each Category B Member the percentage set forth below opposite its name (in each case subject to adjustment as provided in this Agreement):

 

Member		Percentage Interest
MN Retail			80	%
REIT			10	%
Operating Member			10	%

 

“Category B Property” means the portion of the “Property” as defined in the Purchase Agreement identified on Schedule B-2 hereto, and related personal property, to be acquired by the Property Companies from Seller pursuant to the Purchase Agreement.

 

“Category B Shortfall” has the meaning set forth in Section 4.03(a).

 

“Category B Shortfall Advance” has the meaning set forth in Section 4.03(d).

 

“Category B Shortfall Capital Contribution” has the meaning set forth in Section 4.03(d).

 

“Category B Shortfall Contributing Member” has the meaning set forth in Section 4.03(d).

 

“Category B Shortfall Election” shall mean, in the event of a Category B Shortfall, an election pursuant to Section 4.03(d) or Section 4.04(d), to either treat the entire Category B Shortfall as (i) a Category B Shortfall Loan or (ii) a Category A Shortfall Capital Contribution.

 

“Category B Shortfall Loan” shall mean the option, under a Category B Shortfall Election, to treat Category B Shortfall Advances as a loan to the Company instead of a Category B Shortfall Capital Contribution.

 

“Category B Substituted Capital Contributions” has the meaning set forth in Section 4.03(c).

 

“Certificate of Formation” has the meaning set forth in the Recitals.

 

“Change in Control” means the occurrence of any transfer following which the Key Person, together with the Immediate Family Members of the Key Person, ceases to own at least fifty percent (50%) of the beneficial ownership interests of Operating Member or have the ability to direct or cause the direction of the management policies of Operating Member through ownership of voting securities or beneficial interests, by contract or otherwise.

 

“Close Associate” is a person who is widely and publicly known to maintain an unusually close relationship with a Senior Foreign Political Figure, and includes a Person who is in a position to conduct substantial United States and non-United States financial transactions on behalf of the Senior Foreign Political Figure.

 

 

“Closing Date” means the day of the “Closing” under the Purchase Agreement.

 

“Code” means the Internal Revenue Code of 1986, as amended. All references herein to sections of the Code shall include any corresponding provision or provisions of succeeding law.

 

“Company” means the limited liability company formed and governed by the terms of this Agreement.

 

“Company Accountant” has the meaning set forth in Section 8.04.

 

“Company Management Services” means (a) the services performed by Managing Member as provided for herein, pursuant to this Agreement, or Property Manager as provided for in the Property Management Agreement, pursuant to the Property Management Agreement, and all actions in the day-to-day management of the Company provided under the Budget and Operating Plan and (b) all other services reasonably requested from time to time by MN Retail, and reasonably agreed to by Managing Member, consistent with other services customarily provided by managing members or managers as part of their ordinary compensation in comparable circumstances. Managing Member may retain the Property Manager, as defined herein, or another person or entity approved by MN Retail, to perform the Company Management Services for the Company; provided, however, that Managing Member shall cause said Property Manager to perform Company Management Services and shall remain responsible for performing Company Management Services if Property Manager fails to do so.

 

“Company Minimum Gain” means “partnership minimum gain” as defined in Treasury Regulation Section 1.704-2(d).

 

“Company Property” means any asset or other property (real, personal or mixed) owned by or leased to the Company or any Property Company, which shall consist of the Category A Property and the Category B Property.

 

“Competitive Area” has the meaning set forth in Section 7.05(c).

 

“Competitive Opportunity” has the meaning set forth in Section 7.05(c).

 

“Confidential Information” has the meaning set forth in Section 14.15(a).

 

“Contract and Due Diligence Costs” has the meaning set forth in Section 4.01(a).

 

“control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, direct or indirect, of the power (i) to vote ten percent (10%) or more of the outstanding voting securities of such person or entity; or (ii) to otherwise direct management policies of such person or entity by contract or otherwise.

 

 

“Deadlock” means the failure of the Members to approve a Major Decision after the Members have acted reasonably and in good faith to resolve any differences, including being available to attend meetings in person or by telephone, participate in conferences in person or by telephone, consult with third party consultants and professionals, and otherwise take reasonable steps to resolve any differences with respect to the proposed Major Decision.

 

“Delaware Act” means the Delaware Limited Liability Company Act, as amended from time to time.

 

“Disposition Fee” means one percent (1%) of the aggregate Net Sales Proceeds received by the Company from the sales of the Company Property.

 

“Effective Date” has the meaning set forth in the introductory paragraph hereof.

 

“Equity Multiple” means an amount determined by dividing (i) the sum of all distributions of Net Cash Flow received by MN Retail pursuant to Sections 6.03 and 6.04, excluding, however, Sections 6.03(a) and 6.04(a), by (ii) MN Retail’s Gross Adjusted Capital Contributions.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“Event of Default” has the meaning set forth in Section 12.01.

 

“Expenses” means, for any period, the total gross expenditures of the Company and any Property Companies reasonably relating to the operations of the Company and such Property Companies, ownership, entitlement, development, maintenance, management, operations, sale, financing or refinancing of Company Property during such period contemplated by the then applicable Budget or otherwise approved (either prospectively or retroactively) by MN Retail, including (a) all cash operating expenses (including, without limitation, real estate taxes and assessments, personal property taxes, sales taxes, and all fees, commissions, expenses and allowances paid or reimbursed to any Member or any of its Affiliates to the extent permitted hereunder), (b) all deposits of Revenues to the Company’s reserve accounts, (c) all debt service payments including debt service on loans made to the Company by the Members or any of their Affiliates (other than Category A Shortfall Loans and Category B Shortfall Loans), (d) all expenditures which are treated as capital expenditures (as distinguished from expense deductions included in (a)) under GAAP, and (e) all expenditures related to any acquisition, sale, disposition, financing, refinancing or securitization of any Company Property; provided, however, that Expenses shall not include (i) any payment or expenditure to the extent (A) the sources of funds used for such payment or expenditure are not included in Revenues or (B) such payment or expenditure is paid out of any Company reserves unless the withdrawal of the funds to make such payment or expenditure was treated as Revenues, and (ii) any expenditure properly attributable to the liquidation of the Company. Expenses directly or indirectly incurred by the Company which are not directly attributable to a particular Company Property, shall be allocated among all of the Company Properties based on the relative percentage of purchase price for each Company Property under the Purchase Agreement.

 

 

“for cause” means any of the following events: (a) any material breach of (i) this Agreement by Operating Member, including the failure of Operating Member to fund Required Capital Contributions, or the taking of a Major Decision without having obtained the required prior approval of the Majority Members, or (ii) the Property Management Agreement by Property Manager (if Affiliated with Operating Member), or in either case, by any of their respective representatives or Affiliates, (b) any action or omission on the part of Operating Member, Property Manager (if Affiliated with Operating Member), any Key Person or any of their respective representatives or Affiliates which amounts to gross negligence, fraud, bad faith, willful misconduct or any misappropriation or intentional misapplication of Company funds, (c) any Change in Control or Key Person Event, (d) (i) criminal misconduct which has an adverse effect on the business or affairs of the Company, as determined by MN Retail in good faith in its sole discretion or (ii) commission of a felony by Operating Member, Property Manager (if Affiliated with Operating Member), any Key Person or any of their respective representatives or Affiliates, (e) any default by Operating Member under Section 7.05(c), (f) breach of the representation set forth in Section 13.01(b); or (g) a Bankruptcy of Operating Member, Property Manager (if Affiliated with Operating Member), or any Key Person or Key Entity. Each of the above events is referred to herein as a “for cause” event.

 

“for lack of performance” shall mean the Company’s failure to meet the achievements described on Exhibit D attached hereto.

 

“Fundamental Decision” means (i) any amendment, modification or termination of this Agreement, except for amendments or modifications which would not have a disproportionate adverse effect on a Member who otherwise would not be permitted to vote, or (ii) dissolving, terminating or winding up the Company if the Company Property has not been sold in accordance with this Agreement.

 

“GAAP” means United States generally accepted accounting principles consistently applied.

 

“Governmental Authority” means any United States or non-United States federal, national, supranational, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency or commission or any court, tribunal, or arbitral or judicial body (including any grand jury).

 

“Gross Adjusted Capital Contributions” means, with respect to each Member, the total amount of Capital Contributions (other than Category A Shortfall Capital Contributions and/or Category B Shortfall Capital Contributions) contributed by such Member to the Company pursuant to the terms hereof, as adjusted pursuant to Section 4.02(c) or 4.03(c), as the case may be.

 

 

“Immediate Family Member” means the parents, siblings, spouse, children, step-children and in-laws of a Person.

 

“Indemnitees” has the meaning set forth in Section 10.02(a).

 

“Initial Budget and Operating Plan” has the meaning set forth in Section 8.06(a).

 

“Initial Capital Contribution” means, with respect to any Member, any capital contribution made by such Member pursuant to Section 4.01.

 

“Interest” means the Category A Interests and the Category B Interests.

 

“Internal Rate of Return” or “IRR” shall be calculated using the XIRR function of Microsoft Excel utilizing the dates that all Capital Contributions are contributed or deemed contributed to the Company in accordance with the terms of this Agreement and the dates that all distributions are made or deemed to be made in accordance with the terms of this Agreement.

 

“Investment Notice” has the meaning set forth in Section 7.05(c).

 

“Key Entity” means Operating Member.

 

“Key Person” means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.

 

“Key Person Event” means (i) the death or disability of the Key Person, (ii) the failure of the Key Persons to control Operating Member and Property Manager; or (iii) the occurrence of a Change in Control; provided, however, a “Key Person Event” shall not be deemed to have occurred pursuant to clauses (i) or (ii) above if the Key Person is replaced by a successor reasonably acceptable to MN Retail within sixty (60) days of the referenced event.

 

“Lender” means individually and collectively, any lender under a Loan.

 

“Liquidating Member” means the Member designated as such by MN Retail; provided, however, that any Member that is then in default hereunder or that causes the dissolution of the Company under Section 11.01(c) shall not serve as the Liquidating Member (in which event the Liquidating Member shall be the non-defaulting Member).

 

“Loan” means any future mortgage loan encumbering some or all of the Company Property entered into by the Company or one or more of the Property Companies and approved by MN Retail.

 

“Loan Documents” means the note(s), the mortgage and the other loan documents executed and delivered by the Company, one or more of the Property Companies and any applicable guarantor(s) and/or indemnitor(s) to the Lender in connection with a Loan.

 

 

“Loss” means, for each taxable year or other period, an amount equal to the Company’s items of tax deduction and loss for such year or other period, determined in accordance with Section 703(a) of the Code (including all items of loss or deduction required to be stated separately under Section 703(a)(1) of the Code), with the following adjustments:

 

(a)          Any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures under Treasury Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Loss, will be considered an item of Loss;

 

(b)          Loss resulting from any disposition of Company Property with respect to which gain or loss is recognized for federal income tax purposes will be computed by reference to the Book Basis of such property, notwithstanding that the adjusted tax basis of such property may differ from its Book Basis;

 

(c)          In lieu of depreciation, amortization and other cost recovery deductions taken into account in computing taxable income or loss, there will be taken into account depreciation for the taxable year or other period as determined in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g);

 

(d)          Any items of deduction and loss specially allocated pursuant to Section 6.02 shall not be considered in determining Loss; and

 

(e)          Any decrease to Capital Accounts as a result of any adjustment to the Book Basis of Company Property pursuant to Treasury Regulation Section 1.704-1(b)(2) (iv)(f) or (g) shall constitute an item of Loss.

 

“Major Decision” has the meaning set forth in Section 7.01(b).

 

“Majority Members” means two (2) Members; provided, unless a Vote Loss Event has occurred with respect to MN Retail, MN Retail must be one of the two (2) Members; provided, further, the approval of any Member as to which a Vote Loss Event shall have occurred shall not be required.

 

“Managing Member” means, initially, Operating Member.

 

“Member” means the Category A Members and/or the Category B Members, or any other person who is admitted as a member of the Company in accordance with this Agreement and applicable law.

 

“Member Minimum Gain” means the Company’s “partner nonrecourse debt minimum gain” as defined in Treasury Regulation Section 1.704-2(i)(2).

 

“Member Negotiation Expenses” has the meaning set forth in Section 4.01(b).

 

 

“Member Nonrecourse Deductions” means “partner nonrecourse deductions” as defined in Treasury Regulation Section 1.704-2(i)(2).

 

“Membership Sale” has the meaning set forth in Section 9.06(a).

 

“MN Retail” has the meaning set forth in the introductory paragraph hereof.

 

“MN Retail Organizational Documents” has the meaning set forth in Section 13.01(d)(i).

 

“MN Retail Party” has the meaning set forth in Section 7.05(c).

 

“Net Cash Flow” means, for any period, the excess of (a) Revenues for such period over (b) Expenses for such period.

 

“Net Loss” means, for any period, the excess of Losses over Profits, if applicable, for such period.

 

“Net Profit” means, for any period, the excess of Profits over Losses, if applicable, for such period.

 

“Net Sales Proceeds” means (i) the gross proceeds payable to the Company from the sale(s) of the Company Property, without reduction for the repayment of the outstanding principal amount and accrued interest of any indebtedness secured by the Company Property, minus (without duplication) (ii) all costs of sale chargeable to the Company, including, without limitation, brokerage commissions, attorneys’ fees, transfer taxes, prorations, title and escrow fees and charges, and loan prepayment, breakage and exit fees.

 

“Nonrecourse Deductions” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(1).

 

“Notices” has the meaning set forth in Section 14.02.

 

“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

“OFAC List” is any list of prohibited countries, individuals, organizations and entities that is administered or maintained by OFAC, including: (i) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), any related enabling legislation or any other similar executive orders, (ii) the List of Specially Designated Nationals and Blocked Persons (the “SDN List”) maintained by OFAC), and/or on any other similar list (“Other Lists”) maintained by OFAC pursuant to any authorizing statute, executive order or regulation, or (iii) a “Designated National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515.

 

“Operating Member” has the meaning set forth in the introductory paragraph hereof.

 

 

“Operating Member Organizational Documents” has the meaning set forth in Section 13.01(b)(i).

 

“Operating Plan” means the strategic and comprehensive operating plan covering the Company’s operation of Company Property, including, without limitation, any anticipated entitlement and/or development work with respect to the Company Property, which is approved by MN Retail and in effect from time to time pursuant to Section 8.06.

 

“Partially Adjusted Capital Account” means, with respect to any Member for any taxable year or other period of the Company, the Capital Account balance of such Member at the beginning of such year or period, adjusted for all contributions and distributions during such year or period and all special allocations pursuant to Section 6.02 with respect to such year or period but before giving effect to any allocations of Net Profit or Net Loss pursuant to Section 6.01.

 

“Patriot Act” has the meaning set forth in Section 13.01(b)(viii).

 

“Person” means any individual, partnership, corporation, limited liability company, limited liability partnership, trust or other entity.

 

“Profit” means, for each taxable year or other period, an amount equal to the Company’s items of taxable income and gain for such year or other period, determined in accordance with Section 703(a) of the Code (including all items of income and gain required to be stated separately under Section 703(a)(1) of the Code), with the following adjustments:

 

(a)          Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profit will be added to Profit;

 

(b)          Gain resulting from any disposition of Company Property with respect to which gain or loss is recognized for federal income tax purposes will be computed by reference to the Book Basis of such property, notwithstanding that the adjusted tax basis of such property may differ from its Book Basis;

 

(c)          Any items specially allocated pursuant to Section 6.02 shall not be considered in determining Profit; and

 

(d)          Any increase to Capital Accounts as a result of any adjustment to the Book Basis of Company Property pursuant to Treasury Regulation Section  1.704-1(b)(2)(iv)(f) or (g) shall constitute an item of Profit.

 

“Property Company” and “Property Companies” have the meaning set forth in Section 2.06.

 

“Property Management Agreement” means the Property Management Agreement(s) in the form attached hereto as Exhibit A, to be entered into by and between the Company or a Property Company, as applicable, and Property Manager on the Closing Date.

 

 

“Property Manager” means Glenborough LLC, a Delaware limited liability company, which is Affiliated with Operating Member, or any other Person who is engaged as a property manager for the Company Property and approved by MN Retail, whose services will include those specified in the Property Management Agreement.

 

“Protection Decision” has the meaning set forth in Section 7.01(d).

 

“Purchase Agreement” means the Purchase and Sale Agreement, dated as of June 25, 2015, as amended, by and among IRET Properties, a North Dakota limited partnership, as seller, and Glenborough, LLC, as agent on behalf of the Company, as amended from time to time.

 

“Reasonable Period” means, with respect to any defaulting member, a period of ten (10) Business Days after such defaulting Member receives written notice of its default from a non-defaulting Member; provided, however, that if such breach can be cured but cannot reasonably be cured within such 10-Business Day period, the period shall continue, if such defaulting Member commences to cure the breach within such 10-Business Day period, for so long as such defaulting Member diligently prosecutes the cure to completion up to a maximum of the lesser of (a) twenty (20) Business Days, or (b) the period of time allowed for such performance under any material agreement affecting the Company Property, including without limitation the mortgage, if any, encumbering Company Property.

 

“Regulatory Allocations” has the meaning set forth in Section 6.02(g).

 

“Reimbursement Agreement” means, the Reimbursement and Indemnity Agreement, dated as of September 30, 2015, by and between MN Retail, Operating Member, TRS, REIT and Strategic Realty Trust, Inc., a Maryland corporation, as amended from time to time.

 

“REIT Investment Notice” has the meaning set forth in Section 7.05(d).

 

“REIT Opportunity” has the meaning set forth in Section 7.05(d).

 

“Required Capital Contributions” means, the Initial Capital Contribution.

 

“Revenues” means, for any period, the total gross revenues received by the Company during such period, including all receipts of the Company from (a) rent, cost, expense and other recoveries and all additional rent paid to the Company (including for parking facilities), (b) concessions to the Company which are in the nature of revenues, (c) rent or business interruption insurance, and casualty and liability insurance, if any, (d) funds made available to the extent such funds are withdrawn from the Company’s reserve accounts and deposited into the Company’s operating accounts, (e) proceeds from the sale or other disposition of any Company Property, (f) proceeds from the financing, refinancing or securitization of any Company Property, and (g) other revenues and receipts realized by the Company, including without limitation excess cash from Capital Contributions that were not used as contemplated for the purpose of funding the Shortfall giving rise to the need for such Capital Contributions or such other Shortfall as the Members may determine.

 

 

“ROFO Opportunity” has the meaning set forth in Section 7.05(c).

 

“Sale Property” has the meaning set forth in Section 9.06(a).

 

“Seller” has the meaning set forth in the Purchase Agreement.

 

“Senior Foreign Political Figure” means a senior official of a major non-United States political party or a senior executive of a government-owned corporation not organized within the United States. In addition, a “Senior Foreign Political Figure” includes any corporation, business or other entity that has been formed by or for the benefit of a Senior Foreign Political Figure.

 

“SPE” has the meaning set forth in Section 7.01(b)(xxi).

 

“SRO” means a self-regulatory organization.

 

“Target Account” means, with respect to any Member as of the end of any taxable year of the Company or other period, the excess of (a) an amount (which may be positive or negative) equal to the hypothetical distribution (or contribution) such Member would receive (or be deemed required to contribute) with respect to its equity interest in the Company if all assets of the Company, including cash, were sold for cash equal to their Book Basis (taking into account any adjustments to Book Basis for such year or other period), all liabilities (including Category A Shortfall Loans and Category B Shortfall Loans) were then due and were satisfied according to their terms (limited, with respect to each nonrecourse liability, to the Book Basis of the assets securing such liability) and all remaining proceeds from such sale were distributed pursuant to Section 6.03 or 6.04 (whichever is applicable at the time of determination) over (b) the amount of Company Minimum Gain and Member Minimum Gain that would be charged back to such Member as determined pursuant to Treasury Regulation Section 1.704-2 immediately prior to such sale.

 

“Transfer” has the meaning set forth in Section 9.01.

 

“Treasury Regulation” or “Regulation” means, with respect to any referenced provision, such provision of the regulations of the United States Department of the Treasury or any successor provision.

 

“TRS Investment Notice” has the meaning set forth in Section 7.05(d).

 

“TRS Opportunity” has the meaning set forth in Section 7.05(d).

 

“UBTI” means “unrelated business taxable income” as defined in Code Sections 512 through 514 and the related Treasury Regulations.

 

“Value-Add Retail Joint Ventures” means joint venture retail real estate investment opportunities where the internal rate of return over a five (5) year holding period is reasonably projected to be in excess of thirteen percent (13%).

 

 

“Vote Loss Event” means (a) with respect to Operating Member, (i) Operating Member shall have been removed as Managing Member for cause (unless resulting from a Change in Control or Key Person Event resulting from the death of the Key Person), (ii) Operating Member shall have failed to return any distributions pursuant to the provisos in Sections 4.02(a), Section 4.03(a) or Section 4.06 and MN Retail has returned such distributions, (iii) Operating Member or its Affiliate shall have been removed as Property Manager under the Property Management Agreement “for cause”, (iv) the occurrence of a “for lack of performance” event or (v) the reduction of Operating Member’s Category A Percentage Interest or Category B Percentage Interest to less than five percent (5%); (b) with respect to TRS, (i) the occurrence of any event described in sub-clauses (i) through (iv) of clause (a) above with respect to Operating Member at a time when Operating Member is the investment advisor of TRS, (ii) TRS shall have failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06 and MN Retail has returned such distributions, or (iii) the reduction of TRS’ Category A Percentage Interest to less than five percent (5%), except in connection with a Transfer by TRS to REIT; (c) with respect to REIT, (i) the occurrence of any event described in sub-clauses (i) through (iv) of clause (a) above with respect to Operating Member at a time when Operating Member is the investment advisor of REIT, (ii) REIT shall have failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06 and MN Retail has returned such distributions, or (iii) the reduction of REIT’s Category B Percentage Interest to less than five percent (5%); and (d) with respect to MN Retail, the reduction of MN Retail’s Category A Percentage Interest or Category B Percentage Interest to less than five percent (5%).

 

1.02

Other Defined Terms

 

As used in this Agreement, unless otherwise specified, (a) all references to Sections, Articles or Exhibits are to Sections, Articles or Exhibits of this Agreement, and (b) each accounting term has the meaning assigned to it in accordance with GAAP.

 

ARTICLE II
ORGANIZATION

 

2.01

FORMATION

 

The Company has been formed as a limited liability company under the Delaware Act by the filing of the Certificate of Formation. The Members hereby agree to continue the Company as a limited liability company under the Delaware Act, upon the terms and subject to the conditions set forth in this Agreement. MN Retail is hereby authorized to file and record any amendments to the Certificate of Formation and such other documents as may be reasonably required or appropriate under the Delaware Act or the laws of any other jurisdiction in which the Company may conduct business or own property.

 

 

2.02

Name and Principal Place of Business

 

(a)          The name of the Company is set forth on the cover page to this Agreement. All business of the Company shall be conducted under such name, and title to all Company Property shall be held in such name.

 

(b)          The principal place of business and office of the Company shall be located at c/o ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇, Attention: General Counsel, or at such other place or places as Managing Member may from time to time designate.

 

2.03

Term

 

The term of the Company commenced on the date of the filing of the Certificate of Formation pursuant to the Delaware Act, and shall continue until the liquidation and dissolution of the Company pursuant to Article XI.

 

2.04

Registered Agent and Registered Office

 

The name of the Company’s registered agent for service of process shall be Corporation Service Company, and the address of the Company’s registered agent and the address of the Company’s registered office in the State of Delaware shall be Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Such agent and such office may be changed from time to time by Managing Member with written notice to all Members.

 

2.05

Purpose

 

(a)          The purpose of the Company shall be, either by itself or through one or more Property Companies:

 

(i)            To perform its obligations and exercise its rights under the Purchase Agreement and any other agreements or contracts contemplated by the Purchase Agreement, and to carry out the terms of and engage in the transactions contemplated by the Purchase Agreement;

 

(ii)           If applicable, to own, hold, sell, transfer, exchange, manage and operate its direct or indirect interest in Property Companies;

 

(iii)          To acquire, own, entitle, develop, manage, operate, lease, improve, finance, refinance, market, sell and otherwise deal with and dispose of the Company Property; and

 

(iv)          To conduct all activities reasonably necessary or desirable to accomplish the foregoing purposes.

 

(b)          The Company is not authorized to, and shall not, engage in any business other than as described in Section 2.05(a).

 

 

2.06

Company Property

 

In connection with the acquisition of the Company Property on the Closing Date, the Members may elect to cause the Company, and, if necessary, one or more wholly owned subsidiaries of the Company, to form one or more Delaware limited liability companies or limited partnerships to take title to the Company Property (each, a “Property Company” and collectively, “Property Companies”). It is expressly understood that if the Company elects to utilize one or more Property Companies, the Company shall conduct its business through the Property Company(ies); provided that it is the intent of the Members that the organizational documents relating to the formation of the Property Companies shall be interpreted together with the provisions of this Agreement to have substantially the same effect to the Members as would be the case if all the interests therein were held or all such business were conducted by the Company pursuant to the terms of this Agreement. Managing Member shall perform, with no additional compensation, substantially identical services for each Property Company as Managing Member performs for the Company, subject to the terms, conditions, limitations and restrictions set forth in this Agreement. Managing Member agrees to perform such duties, and in such circumstances and with regard to such duties, Managing Member shall be subject to the same standards of conduct and shall have the same rights and obligations with regard to such duties performed or to be performed on behalf of any such Property Company as are set forth in this Agreement with regard to substantially identical services to be performed for or on behalf of the Company. The Members agree to make such changes as any Lender(s) may require to this Agreement and to the organizational documents of the Property Companies, including, without limitation, the addition of a non-member manager and/or independent director to the structure of any of the Property Companies and incorporation of special purpose entity provisions into this Agreement and/or the organization documents of the Project Companies.

 

ARTICLE III
MEMBERS

 

3.01

Members

 

(a)          Effective as of the Effective Date, (i) the Category A Members of the Company shall be MN Retail, TRS and Operating Member and (ii) the Category B Members of the Company shall be MN Retail, REIT, and Operating Member. Except as expressly permitted by this Agreement, no other Person shall be admitted as a member of the Company and no additional Interest shall be issued, without the consent of Majority Members.

 

(b)          None of TRS, REIT, nor MN Retail shall have any fiduciary duties toward any other Member, the Company or any Property Company. The Managing Member, while serving in such role, shall have a fiduciary duty towards the other Members, the Company and any Property Company as described in Section 7.03 of this Agreement.

 

 

3.02

Limitation On Liability

 

Except as otherwise expressly provided by the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member. Except as otherwise expressly provided in this Agreement (with respect to liability among Members) or by the Delaware Act, the liability of each Member shall be limited to such Member’s Interest.

 

3.03

Waiver of Other Rights

 

The Members have (i) no right under Section 18-604 of the Act to withdraw or resign and receive the fair value of their Interests, (ii) no right to demand or receive any distribution from the Company in any form other than cash and in accordance with the provisions of this Agreement concerning distributions, and (iii) no right under the first sentence of Section 18-606 of the Act.

 

3.04

No Certificated Interests

 

The Interests shall not be certificated unless otherwise approved by both Operating Member and MN Retail. A Member’s Interest shall be personal property for all purposes.

 

3.05

INTENTIONALLY DELETED

 

ARTICLE IV
CAPITAL

 

4.01

Initial Capital Contributions

 

(a)          Due Diligence Costs. Operating Member, TRS, REIT, MN Retail and their respective Affiliates have heretofore incurred, and may hereafter incur, third party out-of-pocket costs and expenses in connection with the negotiation of the Purchase Agreement, including without limitation, their due diligence analyses and other evaluations of the Company Property and any engineering and feasibility costs and expenses (collectively, the “Contract and Due Diligence Costs”; such costs shall include, without limitation, costs (including, without limitation, attorneys’ fees) incurred by MN Retail in reviewing and analyzing work conducted by Operating Member or its agents). MN Retail, MN Retail Party, TRS, REIT and Operating Member have heretofore incurred third party costs and expenses in connection with the negotiation and execution of this Agreement, and the Property Management Agreement (collectively, the “Member Negotiation Expenses”). For purposes of this Section 4.01(a), Operating Member’s, TRS’ and REIT’s Member Negotiation Expenses shall be limited to the actual third party costs and expenses incurred by Operating Member, TRS, and REIT solely in connection with the negotiation and execution of this Agreement, and the Property Management Agreement (and shall exclude, without limitation, any other costs and expenses that Operating Member, TRS or REIT may have incurred or may hereafter incur in connection with any prior negotiations and/or transactions with any Person other than MN Retail or MN Retail Party relating to the Company Property). Provided that the Company acquires the Company Property pursuant to the Purchase Agreement, (i) the Company shall pay or reimburse MN Retail for (A) all Contract and Due Diligence Costs, and (B) all Member Negotiation Expenses incurred by MN Retail and MN Retail Party, and (ii) the Company shall pay or reimburse Operating Member, TRS and REIT for all such Member Negotiation Expenses incurred by Operating Member, TRS and REIT, in each case, to the extent such Member seeking reimbursement has provided the Company and the other Members with documentary evidence and such other evidence, reasonably satisfactory to the Company, relating to such Member Negotiation Expenses. Each Category A Member’s share of all such costs, expenses and consideration shall be in proportion to their respective Category A Percentage Interests and each Category B Member’s share of all such costs, expenses and consideration shall be in proportion to their respective Category B Percentage Interests.

 

 

(b)          Failure to Close Purchase; Initial Capital Contributions. Whether the Company shall proceed with the transaction pursuant to the Purchase Agreement, including, but not limited to, whether it shall close the purchase of the Company Property shall be determined by MN Retail in its sole discretion, and no Member or any Affiliate thereof shall have any claim against the Company or any other Member or Affiliate of a Member or MN Retail by reason of such determination. In the event MN Retail decides to cause the Company to close the purchase of the Company Property pursuant to the Purchase Agreement, then two (2) Business Days after any request by the Managing Member (as directed by MN Retail) (or upon the closing of the acquisition of the Company Property, if earlier):

 

(i)            The Category A Members shall contribute in cash to the capital of the Company their pro rata shares (based upon their actual Category A Percentage Interests) of the sum of (i) the amount reasonably determined by the Managing Member to be necessary to close the acquisition of the Category A Property, including, without limitation, the Company’s equity, closing costs, Contract and Due Diligence Costs related thereto, and (ii) a reasonable amount of initial working capital of, and reserves for, the Company, related to the Category A Property, as determined by the Managing Member and approved by MN Retail (all such amounts shall be credited as provided in Section 4.01(a)). The Category A Members’ respective estimated required Category A Initial Capital Contributions, which are to be funded prior to the acquisition of the Category A Property, as well as the sources and uses for the closing, are described on Schedule A-1 attached hereto. If, either before or after the acquisition of the Category A Property, the Managing Member determines (as approved by MN Retail) that the Category A Initial Capital Contributions described on Schedule A-1 do not accurately reflect the matters specified in the second sentence of this paragraph, then the Managing Member may readjust the Category A Initial Capital Contributions required of each Member.

 

 

(ii)           The Category B Members shall contribute in cash to the capital of the Company their pro rata shares (based upon their actual Category B Percentage Interests) of the sum of (i) the amount reasonably determined by the Managing Member to be necessary to close the acquisition of the Category B Property, including, without limitation, the Company’s equity, closing costs, Contract and Due Diligence Costs related thereto, and (ii) a reasonable amount of initial working capital of, and reserves for, the Company, as determined by the Managing Member and approved by MN Retail (all such amounts shall be credited as provided in Section 4.01(a)). The Category B Members’ respective estimated required Category B Initial Capital Contributions, which are to be funded prior to the acquisition of the Category B Property, as well as the sources and uses for the closing, are described on Schedule A-2 attached hereto. If, either before or after the acquisition of the Category B Property, the Managing Member determines (as approved by MN Retail) that the Category B Initial Capital Contributions described on Schedule A-2 do not accurately reflect the matters specified in the second sentence of this paragraph, then the Managing Member may readjust the Category B Initial Capital Contributions required of each Member.

 

4.02

Category A Additional Capital Contributions

 

(a)          If at any time or from time to time after all of the Category A Initial Capital Contributions have been contributed, MN Retail determines that additional funds (a “Category A Shortfall”) are required with respect to the Category A Property (i) for costs provided by the Initial Budget and Operating Plan related thereto, or (ii) for costs necessary on an emergency basis to protect the Company and any of its assets, including without limitation, the Category A Property, or (iii) for costs and expenses not provided by the Initial Budget and Operating Plan related thereto, but approved in writing by MN Retail, then in connection with any such Shortfall set forth in Section 4.02(a)(i), (ii), or (iii), MN Retail shall have the right to require that the Category A Members make further capital contributions (“Category A Additional Capital Contributions”) in the amount of such Category A Shortfall. If directed by MN Retail, each Category A Member shall, within fifteen (15) Business Days thereafter (or such shorter period, if any, in order to avoid a default under a Loan Document but not less than three (3) Business Days) (the “Category A Contribution Deadline”), contribute its pro rata share of such Category A Shortfall based on its Category A Percentage Interest, provided however, that in the event that distributions have been made pursuant to Section 6.03(c) at the time the Category A Additional Capital Contributions are to be made, the Shortfall shall be funded by the Category A Members by returning distributions previously made pursuant Section 6.03(c) in accordance with each Category A Member’s then most recent distribution percentage under Section 6.03(c) (but only to the extent of such distributions), and any distributions returned shall be treated as not having been made for purposes of making future distributions.

 

(b)          The Category A Initial Capital Contributions required by Section 4.01 shall be made by wire transfer of funds to an account in the name of the Company designated by the Managing Member. All other Capital Contributions and the return of any distributions pursuant to the proviso in Section 4.02(a) or the proviso in Section 4.06 shall be made by wire transfer of funds to accounts in the name of the Company designated by the Managing Member from time to time.

 

 

(c)          If any Category A Member (the “Category A Non-Contributing Member”) fails to timely make the Capital Contributions or the return of any distributions pursuant to the proviso in Section 4.02(a) or the proviso in Section 4.06 (or any portions thereof) required by Section 4.01 or 4.02(a) (other than in connection with the withdrawal of a Member or following a decision not to proceed with the acquisition of the Category A Property), then one or more of the other Category A Members that is not an Affiliate of the Category A Non-Contributing Member (the “Category A Contributing Member”) may (but shall not be required to) make such capital contribution (i.e., the Category A Non-Contributing Member’s share, in addition to the Category A Contributing Member’s share; provided that if there is more than one Category A Contributing Member who wishes to so contribute the Category A Non-Contributing Member’s share, such Category A Contributing Members, in the aggregate, must contribute the entire amount of such share in proportion to their then-existing Category A Percentage Interests), and the Category A Contributing Member may choose one, and only one, of the following options: (X) to make a Category A Shortfall Election under this Section 4.02, or, if no Category A Shortfall Election is made, (Y) elect to dilute the Category A Percentage Interest of the Category A Non-Contributing Member. In the event the Category A Contributing Member elects to dilute the Category A Percentage Interest of the Category A Non-Contributing Member, the Category A Percentage Interest of each of the Category A Members shall be adjusted to equal the percentage equivalent of the quotient determined by dividing (1) the positive difference, if any, between (a) the sum of (i) 100% of the aggregate Category A Capital Contributions (excluding Category A Substituted Capital Contributions (as hereinafter defined)) then or theretofore made by such Member to the Company, plus (ii) 200% of the Category A Substituted Capital Contributions then or theretofore made by such Member to the Company (the excess of 200% of such Member’s Category A Substituted Capital Contributions over such Member’s Category A Substituted Capital Contributions is referred to herein as the “Category A Excess Amounts”), minus (b) the Category A Excess Amounts attributable to the Category A Substituted Capital Contributions then or theretofore made by the other Category A Member to the Company, by (2) 100% of the aggregate Category A Capital Contributions (including without limitation Category A Substituted Capital Contributions) then or theretofore made by all of the Category A Members to the Company. As used herein, the term “Category A Substituted Capital Contribution” shall mean a Category A Additional Capital Contribution made by the Category A Contributing Member equal to the amount that the Category A Non-Contributing Member failed to timely contribute pursuant to Section 4.02(a). If a Category A Contributing Member’s Category A Percentage Interest is increased pursuant to this Section 4.02(c), then (A) its Category A Gross Adjusted Capital Contributions, as previously adjusted, shall, in addition to being increased by the amount of Category A Capital Contributions (including without limitation ordinary Category A Capital Contributions and Category A Substituted Capital Contributions) made by such Category A Member, also be increased by an amount equal to an additional 100% of the Category A Substituted Capital Contributions made by such Member, and the Category A Gross Adjusted Capital Contributions of the other Category A Member shall be adjusted so that the ratios of the Category A Members’ Category A Gross Adjusted Capital Contributions immediately after such adjustment are equal to their Category A Percentage Interests immediately after such adjustment, and (B) to the extent determined by the Managing Member, the Capital Account balances of the Category A Members shall be adjusted so that the Category A Partially Adjusted Capital Accounts immediately after such adjustment (after taking into account all items of Profit and Loss and other items through the date of the adjustment attributable to Category A Property as deemed appropriate by the Managing Member) are equal as closely as possible to the Target Accounts at such time, after giving effect to the adjustments to Target Accounts resulting from changes to the Category A Percentage Interests and Category A Gross Adjusted Capital Contributions required by this Section 4.02(c).

 

 

(d)          In the event the Category A Contributing Member does not elect to dilute the Category A Percentage Interest of the Category A Non-Contributing Member pursuant to Section 4.02(c), and instead makes the Category A Shortfall Election pursuant to this Section 4.02(d), then any Category A Contributing Member which contributes its share of a Category A Additional Capital Contribution with respect to which there is a Category A Non-Contributing Member shall be referred to herein as a “Category A Shortfall Contributing Member” and the amount advanced to the Company pursuant to Section 4.01 and, if applicable, Section 4.01(b) (consisting of the share advanced by the Category A Contributing Member on its own behalf and, if applicable, the share contributed by the Category A Contributing Member that the Category A Non-Contributing Member failed to contribute) shall, upon making the Category A Shortfall Election, be referred to herein as the Category A Shortfall Contributing Member’s “Category A Shortfall Advances.” The Category A Shortfall Election shall be made by notice from the Category A Shortfall Contributing Members to the Category A Non-Contributing Member within thirty (30) days of the Category A Contribution Deadline or the date on which the Category A Shortfall Contributing Members funded any amount that the Category A Non-Contributing Member failed to contribute (whichever is later), provided that no Category A Shortfall Election shall be effective unless all Category A Members other than the Category A Non-Contributing Member are Category A Shortfall Contributing Members with respect to the Category A Shortfall Advances that are the subject of such Category A Shortfall Election and all Category A Shortfall Contributing Members make the Category A Shortfall Election with respect to such Category A Shortfall Advances. The Category A Shortfall Election shall specify whether the relevant Category A Shortfall Advances shall be treated as “Category A Shortfall Capital Contributions” or as “Category A Shortfall Loans”; provided that if two or more Category A Shortfall Contributing Members fail to agree on such designation, the Category A Member making the largest Category A Shortfall Advance that is the subject of such Category A Shortfall Election shall have the right to designate the treatment of all such Category A Shortfall Advances as Category A Shortfall Capital Contributions or as Category A Shortfall Loans. Category A Shortfall Loans shall accrue interest at the rate of twenty percent (20%) per annum, compounded monthly, until repaid in full, and all amounts remaining due thereunder (after application of Section 6.03(a)) shall be due and payable in full two (2) years from the date such loans are made (which shall be the date of the respective Category A Shortfall Advances) or, if sooner, upon an event giving rise to the liquidation of the Company. Category A Shortfall Capital Contributions shall be treated as provided in Section 6.03(a). Category A Shortfall Capital Contributions shall be Category A Additional Capital Contributions hereunder, but shall not be Category A Substituted Capital Contributions, and a Category A Member’s Category A Gross Adjusted Capital Contributions shall in no event be increased by Category A Shortfall Capital Contributions. A Category A Shortfall Loan shall not be treated as a Capital A Capital Contribution or a Category A Substituted Capital Contribution, and a Category A Member’s Category A Gross Adjusted Capital Contributions shall in no event be increased by a Category A Shortfall Loan.

 

 

(e)          Each Category A Member hereby grants to the Company, as secured party, a security interest in such Category A Member’s Interest to secure its obligation to contribute its Category A Initial Capital Contributions to the Company under this Article IV, and the Company shall have all rights available to a secured party under the Delaware Uniform Commercial Code and the laws of the state of organization of such Member. Each Category A Member does hereby irrevocably constitute and appoint each of the other Category A Members, the Company and the agents, officers or employees thereof, its true and lawful attorneys-in-fact, coupled with an interest, with full power to prepare and execute any documents, instruments and agreements, and such financing, continuation statements, and other instruments and documents as may be appropriate to perfect, continue and enforce such security interest in favor of the Company.

 

(f)           Each Category A Member acknowledges and agrees that the other Category A Members would not be entering into this Agreement were it not for (i) the Category A Members agreeing to make the Category A Capital Contributions or Category A Shortfall Loans provided for in Section 4.01 and this Section 4.02 and (ii) the remedy provisions set forth above in this Section 4.02. Each Category A Member acknowledges and agrees that in the event any Category A Member fails to make its Category A Capital Contributions pursuant to this Agreement, the other Category A Members will suffer substantial damages and the remedy provisions set forth above are fair, just and equitable in all respects. In addition to the remedies specified herein, the Company shall be entitled to exercise its rights and remedies at law and equity against each Category A Non-Contributing Member which fails to make any Category A Initial Capital Contribution (but only any Category A Initial Capital Contribution, and excluding circumstances where the Category A Non-Contributing Member is withdrawing as a member) required hereunder. Notwithstanding the foregoing, in the event a Category A Member fails to make any Category A Additional Capital Contributions pursuant to this Section 4.02, any Category A Contributing Member’s remedies shall be limited to making the Category A Shortfall Election or electing to dilute the Category A Percentage Interest of the Category A Non-Contributing Member as described in Section 4.02(c), and all other remedies at law or equity shall be precluded.

 

 

4.03

Category B Additional Capital Contributions

 

(a)          If at any time or from time to time after all of the Category B Initial Capital Contributions have been contributed, MN Retail determines that additional funds (a “Category B Shortfall”) are required with respect to the Category B Property (i) for costs provided by the Initial Budget and Operating Plan related thereto, or (ii) for costs necessary on an emergency basis to protect the Company and any of its assets, including without limitation, the Category B Property, or (iii) for costs and expenses not provided by the Initial Budget and Operating Plan related thereto but approved in writing by MN Retail, then in connection with any such Shortfall set forth in 4.03(a)(i), (ii), or (iii), MN Retail shall have the right to require that the Category B Members make further capital contributions (“Category B Additional Capital Contributions”) in the amount of such Category B Shortfall. If directed by MN Retail, each Category B Member shall, within fifteen (15) Business Days thereafter (or such shorter period, if any, in order to avoid a default under a Loan Document but not less than three (3) Business Days) (the “Category B Contribution Deadline”), contribute its pro rata share of such Category B Shortfall based on its Category B Percentage Interest, provided however, that in the event that distributions have been made pursuant to Section 6.04(c), 6.04(d), 6.04(e) or 6.04(f) at the time the Category B Additional Capital Contributions are to be made, the Shortfall shall be funded by the Category B Members by returning distributions previously made pursuant Section 6.04(c), 6.04(d), 6.04(e) or 6.04(f), respectively, in accordance with each Category B Member’s then most recent distribution percentage under Section 6.04(c), 6.04(d), 6.04(e) or 6.04(f), respectively (but only to the extent of such distributions), and any distributions returned shall be treated as not having been made for purposes of making future distributions (other than taking into account the timing of such distributions and their return for purposes of computing the applicable IRR thresholds).

 

(b)          The Category B Initial Capital Contributions required by Section 4.01 shall be made by wire transfer of funds to an account in the name of the Company designated by the Managing Member. All other Capital Contributions and the return of any distributions pursuant to the proviso in Section 4.03(a) or the proviso in Section 4.06 shall be made by wire transfer of funds to accounts in the name of the Company designated by the Managing Member from time to time.

 

 

(c)          If any Category B Member (the “Category B Non-Contributing Member”) fails to timely make the Capital Contributions or the return of any distributions pursuant to the proviso in Section 4.03(a) or the proviso in Section 4.06 (or any portions thereof) required by Section 4.01 or 4.03(a) (other than in connection with the withdrawal of a Member or following a decision not to proceed with the acquisition of the Category B Property), then one or more of the other Category B Members that is not an Affiliate of the Category B Non-Contributing Member (the “Category B Contributing Member”) may (but shall not be required to) make such capital contribution (i.e., the Category B Non-Contributing Member’s share, in addition to the Category B Contributing Member’s share; provided that if there is more than one Category B Contributing Member who wishes to so contribute the Category B Non-Contributing Member’s share, such Category B Contributing Members, in the aggregate, must contribute the entire amount of such share in proportion to their then-existing Category B Percentage Interests), and the Category B Contributing Member may choose one, and only one, of the following options: (X) to make a Category B Shortfall Election under this Section 4.03, or, if no Category B Shortfall Election is made, (Y) elect to dilute the Category B Percentage Interest of the Category B Non-Contributing Member. In the event the Category B Contributing Member elects to dilute the Category B Percentage Interest of the Category B Non-Contributing Member, the Category B Percentage Interest of each of the Category B Members shall be adjusted to equal the percentage equivalent of the quotient determined by dividing (1) the positive difference, if any, between (a) the sum of (i) 100% of the aggregate Category B Capital Contributions (excluding Category B Substituted Capital Contributions (as hereinafter defined)) then or theretofore made by such Category B Member to the Company, plus (ii) 200% of the Category B Substituted Capital Contributions then or theretofore made by such Category B Member to the Company (the excess of 200% of such Category B Member’s Category B Substituted Capital Contributions over such Category B Member’s Category B Substituted Capital Contributions is referred to herein as the “Category B Excess Amounts”), minus (b) the Category B Excess Amounts attributable to the Category B Substituted Capital Contributions then or theretofore made by the other Category B Member to the Company, by (2) 100% of the aggregate Category B Capital Contributions (including without limitation Category B Substituted Capital Contributions) then or theretofore made by all of the Category B Members to the Company. As used herein, the term “Category B Substituted Capital Contribution” shall mean a Category B Additional Capital Contribution made by the Category B Contributing Member equal to the amount that the Category B Non-Contributing Member failed to timely contribute pursuant to Section 4.03(a). An example of the operation of such calculation is set forth on Exhibit C attached hereto. If a Category B Contributing Member’s Category B Percentage Interest is increased pursuant to this Section 4.03(c), then (A) its Category B Gross Adjusted Capital Contributions, as previously adjusted, shall, in addition to being increased by the amount of Category B Capital Contributions (including without limitation ordinary Category B Capital Contributions and Category B Substituted Capital Contributions) made by such Category B Member, also be increased by an amount equal to an additional 100% of the Category B Substituted Capital Contributions made by such Category B Member (which increase for IRR purposes shall be treated as a Category B Capital Contribution on the date the related Category B Substituted Capital Contribution is made), and the Category B Gross Adjusted Capital Contributions of the other Category B Member shall be adjusted so that the ratios of the Category B Members’ Category B Gross Adjusted Capital Contributions immediately after such adjustment are equal to their Category B Percentage Interests immediately after such adjustment, and (B) to the extent determined by the Managing Member, the Capital Account balances of the Category B Members shall be adjusted so that the Category B Partially Adjusted Capital Accounts immediately after such adjustment (after taking into account all items of Profit and Loss and other items through the date of the adjustment attributable to the Category B Property as deemed appropriate by the Managing Member) are equal as closely as possible to the Target Accounts at such time, after giving effect to the adjustments to Target Accounts resulting from changes to the Category B Percentage Interests and Category B Gross Adjusted Capital Contributions required by this Section 4.03(c).

 

 

(d)          In the event the Category B Contributing Member does not elect to dilute the Category B Percentage Interest of the Category B Non-Contributing Member pursuant to Section 4.03(c), and instead makes the Category B Shortfall Election pursuant to this Section 4.03(d), then any Category B Contributing Member which contributes its share of a Category B Additional Capital Contribution with respect to which there is a Category B Non-Contributing Member shall be referred to herein as a “Category B Shortfall Contributing Member” and the amount advanced to the Company pursuant to Section 4.01 and, if applicable, Section 4.01(b) (consisting of the share advanced by the Category B Contributing Member on its own behalf and, if applicable, the share contributed by the Category B Contributing Member that the Category B Non-Contributing Member failed to contribute) shall, upon making the Category B Shortfall Election, be referred to herein as the Category B Shortfall Contributing Member’s “Category B Shortfall Advances.” The Category B Shortfall Election shall be made by notice from the Category B Shortfall Contributing Members to the Category B Non-Contributing Member within thirty (30) days of the Category B Contribution Deadline or the date on which the Category B Shortfall Contributing Members funded any amount that the Category B Non-Contributing Member failed to contribute (whichever is later), provided that no Category B Shortfall Election shall be effective unless all Category B Members other than the Category B Non-Contributing Member are Category B Shortfall Contributing Members with respect to the Category B Shortfall Advances that are the subject of such Category B Shortfall Election and all Category B Shortfall Contributing Members make the Category B Shortfall Election with respect to such Category B Shortfall Advances. The Category B Shortfall Election shall specify whether the relevant Category B Shortfall Advances shall be treated as “Category B Shortfall Capital Contributions” or as “Category B Shortfall Loans”; provided that if two or more Category B Shortfall Contributing Members fail to agree on such designation, the Member making the largest Category B Shortfall Advance that is the subject of such Category B Shortfall Election shall have the right to designate the treatment of all such Category B Shortfall Advances as Category B Shortfall Capital Contributions or as Category B Shortfall Loans. Category B Shortfall Loans shall accrue interest at the rate of twenty percent (20%) per annum, compounded monthly, until repaid in full, and all amounts remaining due thereunder (after application of Section 6.03(a)) shall be due and payable in full two (2) years from the date such loans are made (which shall be the date of the respective Category B Shortfall Advances) or, if sooner, upon an event giving rise to the liquidation of the Company. Category B Shortfall Capital Contributions shall be treated as provided in Section 6.03(a). Category B Shortfall Capital Contributions shall be Category B Additional Capital Contributions hereunder, but shall not be Category B Substituted Capital Contributions, and a Category B Member’s Category B Gross Adjusted Capital Contributions shall in no event be increased by Category B Shortfall Capital Contributions. A Category B Shortfall Loan shall not be treated as a Capital B Capital Contribution or a Category B Substituted Capital Contribution, and a Category B Member’s Category B Gross Adjusted Capital Contributions shall in no event be increased by a Category B Shortfall Loan.

 

(e)          Each Category B Member hereby grants to the Company, as secured party, a security interest in such Category B Member’s Interest to secure its obligation to contribute its Category B Initial Capital Contributions to the Company under this Article IV, and the Company shall have all rights available to a secured party under the Delaware Uniform Commercial Code and the laws of the state of organization of such Member. Each Category B Member does hereby irrevocably constitute and appoint each of the other Category B Members, the Company and the agents, officers or employees thereof, its true and lawful attorneys-in-fact, coupled with an interest, with full power to prepare and execute any documents, instruments and agreements, and such financing, continuation statements, and other instruments and documents as may be appropriate to perfect, continue and enforce such security interest in favor of the Company.

 

 

(f)           Each Category B Member acknowledges and agrees that the other Category B Members would not be entering into this Agreement were it not for (i) the Category B Members agreeing to make the Category B Capital Contributions or Category B Shortfall Loans provided for in Section 4.01 and this Section 4.03 and (ii) the remedy provisions set forth above in this Section 4.03. Each Category B Member acknowledges and agrees that in the event any Category B Member fails to make its Category B Capital Contributions pursuant to this Agreement, the other Category B Members will suffer substantial damages and the remedy provisions set forth above are fair, just and equitable in all respects. In addition to the remedies specified herein, the Company shall be entitled to exercise its rights and remedies at law and equity against each Category B Non-Contributing Member which fails to make any Category B Initial Capital Contribution (but only any Category B Initial Capital Contribution, and excluding circumstances where the Category B Non-Contributing Member is withdrawing as a member) required hereunder. Notwithstanding the foregoing, in the event a Category B Member fails to make any Category B Additional Capital Contributions pursuant to this Section 4.03, any Category B Contributing Member’s remedies shall be limited to making the Category A Shortfall Election or electing to dilute the Category B Percentage Interest of the Category B Non-Contributing Member as described in Section 4.03(c), and all other remedies at law or equity shall be precluded.

 

4.04

Capital Accounts

 

A separate Capital Account will be maintained for each Member in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv). Consistent therewith, the Capital Account of each Member will be determined and adjusted as follows:

 

(a)          Each Member’s Capital Account will be credited with:

 

(i)            Any contributions of cash made by such Member to the capital of the Company plus the fair market value of any property contributed by such Member to the capital of the Company (net of any liabilities to which such property is subject or which are assumed by the Company);

 

(ii)           The Member’s distributive share of Net Profit and any items in the nature of income or gain specially allocated to such Member pursuant to Section 6.02; and

 

(iii)          Any other increases required by Treasury Regulation Section 1.704-1(b)(2)(iv).

 

(b)          Each Member’s Capital Account will be debited with:

 

(i)            Any distributions of cash made from the Company to such Member plus the fair market value of any property distributed in kind to such Member (net of any liabilities to which such property is subject or which are assumed by such Member);

 

 

(ii)           The Member’s distributive share of Net Loss and any items in the nature of expenses or losses specially allocated to such Member pursuant to Section 6.02; and

 

(iii)          Any other decreases required by Treasury Regulation Section 1.704-1(b)(2)(iv).

 

(c)          The estimated initial Capital Account balance of each Member is set forth in Schedule A, which balances have been determined in accordance with the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(f). Upon any adjustment to the Initial Capital Contributions, Schedule A shall be revised as reasonably determined by MN Retail.

 

(d)          Capital Accounts shall also be subject to adjustment as and to the extent provided in clause (B) of Section 4.02(c) as to Category A Members and clause (B) of Section 4.03(c) as to the Category B Members (including the other provisions in this Agreement that apply with reference to such clause).

 

The provisions of this Section 4.04 and any other provisions of this Agreement relating to the maintenance of Capital Accounts have been included in this Agreement to comply with Section 704(b) of the Code and the Treasury Regulations promulgated thereunder and will be interpreted and applied in a manner consistent with those provisions.

 

4.05

No Further Capital Contributions

 

Except as expressly provided in this Agreement or with the prior written consent of the Members, and subject to the provisions of this Agreement, no Member shall be required or entitled to contribute any other or further capital to the Company, nor shall any Member be required or entitled to loan any funds to the Company. No Member will have any obligation to restore any negative balance in its Capital Account at any time including upon liquidation or dissolution of the Company.

 

 

4.06

Loans

 

Following the Effective Date, the Managing Member shall use diligent efforts to apply for and secure for the Company or, if applicable, a Property Company, one or more Loans at commercially reasonable rates and on commercially reasonable non-recourse terms (with, if required by a Lender, customary carve outs, which shall be recourse only to Operating Member, TRS, REIT and/or their Affiliates who are not natural persons) for traditional senior financing, which Loan(s) shall be secured by the Company Property. The Members agree to make such reasonable changes to this Agreement as may be requested by any current or future Lender; provided, however, that such changes shall not alter the economic terms, or any fundamental rights of the Members, set forth herein. Operating Member and its Affiliates who are not natural persons shall provide all recourse for customary carve outs requested in non-recourse Loans to the extent required by the Lender (the “Recourse Obligations”); provided that, (a) (i) as to the Category A Property, MN Retail and TRS shall each reimburse Operating Member and its affiliated guarantors for MN Retail’s and TRS’ pro rata shares (based on Category A Percentage Interest, provided that, if distributions have been made pursuant to Section 6.03(c) at the time any recourse liability arises under a guaranty, the Category A Members’ liability for such recourse obligations, to the extent such guaranty obligations are paid, payable or demand has been made upon such guarantor, shall be pro rata in accordance with each Category A Member’s then most recent distribution percentage under Section 6.03(c) (but only to the extent of such distributions), and (ii) as to the Category B Property, MN Retail and REIT shall each reimburse Operating Member and its affiliated guarantors for MN Retail’s and REIT’s pro rata shares (based on Category B Percentage Interest, provided that, if distributions have been made pursuant to Section 6.04(c), 6.04(d), 6.04(e) or 6.04(f) at the time any recourse liability arises under a guaranty, the Category B Members’ liability for such recourse obligations, to the extent such guaranty obligations are paid, payable or demand has been made upon such guarantor, shall be pro rata in accordance with each Category B Member’s then most recent distribution percentage under Section 6.04(c), 6.04(d), 6.04(e) or 6.04(f) respectively (but only to the extent of such distributions), and (b) each Member shall be solely responsible for recourse liability under any guaranty to the extent arising out of an act performed or omitted to be performed by such Member or an Affiliate of such Member. Notwithstanding the foregoing, prior to Operating Member, or any Operating Member affiliated guarantor, making any payment under a guaranty with respect to which Operating Member intends to request reimbursement (in whole or in part) from MN Retail in accordance with the foregoing, and as a condition to MN Retail’s obligation to reimburse Operating Member or its affiliated guarantor in accordance with the foregoing, Operating Member shall notify MN Retail of the claim giving rise to liability under the applicable guaranty and shall refrain from making any payment under such guaranty until MN Retail has approved of such payment; provided, however, that MN Retail’s approval shall not be required if MN Retail is required to reimburse Operating Member for such guaranty payment under the Reimbursement Agreement.

 

ARTICLE V
INTERESTS IN THE COMPANY

 

5.01

Percentage Interest

 

The Category A Percentage Interests of the Category A Members and the Category B Percentage Interests of the Category B Members may be adjusted only as set forth in this Agreement.

 

5.02

Return of Capital

 

No Member shall be liable for the return of the Capital Contributions (or any portion thereof) of any other Member, it being expressly understood that any such return shall be made solely from the assets of the Company. No Member shall be entitled to withdraw or receive a return of any part of its Capital Contributions or Capital Account, to receive interest on its Capital Contributions or Capital Account or to receive any distributions from the Company, except as expressly provided for in this Agreement or under applicable law. No Member shall have any obligation to restore any negative balance in its Capital Account.

 

 

5.03

Ownership

 

All Company Property shall be owned by the Company or, as provided in Section 2.06, by one or more Property Companies, subject to the terms and provisions of this Agreement. Title to Company Property shall be held by the Company in the Company’s name or, as provided in Section 2.06, by one or more Property Companies in the name of such Property Companies.

 

5.04

Waiver of Partition; Nature of Interests in the Company

 

Except as otherwise expressly provided for in this Agreement, and without limiting MN Retail’s unfettered right to sell all or any portion of the Company Property as set forth herein, each of the Members hereby irrevocably waives any right or power that such Member might have:

 

(a)          To cause the Company or any of its assets to be partitioned;

 

(b)          To cause the appointment of a receiver for all or any portion of the assets of the Company;

 

(c)          To compel any sale of all or any portion of the assets of the Company pursuant to any applicable law; or

 

(d)          To file a complaint, or to institute any proceeding at law or in equity, to cause the termination, dissolution or liquidation of the Company.

 

Each of the Members has been induced to enter into this Agreement in reliance upon the waivers set forth in this Section 5.04, and without such waivers no Member would have entered into this Agreement. No Member shall have any interest in any specific Company Property. The interests of all Members in this Company are personal property.

 

ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS

 

6.01

ALLOCATION OF PROFITS AND LOSSEs

 

(a)          After giving effect to the allocations set forth in Section 6.02 below, for each fiscal year of the Company, any remaining Profits and Losses of the Company attributable to the Category A Property shall be allocated as necessary to cause the Capital Account of each Category A Member (increased by the amount of gain that would be allocated to such Category A Member under Section 6.02 below if Category A Property subject to any nonrecourse liability were transferred in satisfaction of such liability and for no other consideration) to equal (as nearly as possible) the Category A Net Cash Flow distributions that would be made to such Category A Member under Sections 6.03 and 6.05, as applicable, if the Category A Property of the Company at the end of such year were sold for their then adjusted book basis for purposes of Treas. Reg. Section 1.7040a(b)(2), all Company liabilities attributable to the Category A Property were satisfied (limited with respect to each nonrecourse liability to the adjusted book basis of the Category A Property subject to the liability) and the proceeds were distributed under Section 6.03 (without regard to the Capital Accounts of the Category A Members).

 

 

(b)          After giving effect to the allocations set forth in Section 6.02 below, for each fiscal year of the Company, any remaining Profits and Losses of the Company attributable to the Category B Property shall be allocated as necessary to cause the Capital Account of each Category B Member (increased by the amount of gain that would be allocated to such Category B Member under Section 6.02 below if Category B Property subject to any nonrecourse liability were transferred in satisfaction of such liability and for no other consideration) to equal (as nearly as possible) the Category B Net Cash Flow distributions that would be made to such Category B Member under Sections 6.04 and 6.06, as applicable, if the Category B Property of the Company at the end of such year were sold for their then adjusted book basis for purposes of Treas. Reg. Section 1.7040a(b)(2), all Company liabilities attributable to the Category B Property were satisfied (limited with respect to each nonrecourse liability to the adjusted book basis of the Category B Property subject to the liability) and the proceeds were distributed under Section 6.04 (without regard to the Capital Accounts of the Category B Members).

 

(c)          In making the allocations of Profits and Losses attributable to Category A Property pursuant to Section 6.01(a), that portion of each Member’s Capital Account attributable to Category B Property shall be ignored. In making the allocations of Profits and Losses attributable to Category B Property pursuant to Section 6.02(a), that portion of each Member’s Capital Account attributable to Category A Property shall be ignored.

 

6.02

Allocations and Compliance with Section 704(b)

 

The following special allocations shall, except as otherwise provided, be made in the following order:

 

(a)          If there is a net decrease in Company Minimum Gain or in any Member Minimum Gain attributable to the Category A Property during any taxable year or other period, prior to any other allocation pursuant hereto, such Category A Member shall be specially allocated items of income and gain for such year (and, if necessary, subsequent years) in an amount and manner required by Treasury Regulation Sections 1.704-2(f) or 1.704-2(i)(4). If there is a net decrease in Company Minimum Gain or in any Member Minimum Gain attributable to the Category B Property during any taxable year or other period, prior to any other allocation pursuant hereto, such Category B Member shall be specially allocated items of income and gain for such year (and, if necessary, subsequent years) in an amount and manner required by Treasury Regulation Sections 1.704-2(f) or 1.704-2(i)(4). The items to be so allocated shall be determined in accordance with Treasury Regulation Section 1.704-2.

 

 

(b)          (i) Nonrecourse Deductions attributable to the Category A Interests for any taxable year or other period shall be allocated (as nearly as possible) under Treasury Regulation Section 1.704-2 to the Category A Members, pro rata, in proportion to their respective Category A Percentage Interests, and (ii) Nonrecourse Deductions attributable to the Category B Interests for any taxable year or other period shall be allocated (as nearly as possible) under Treasury Regulation Section 1.704-2 to the Category B Members, pro rata, in proportion to their respective Category B Percentage Interests

 

(c)          Any Member Nonrecourse Deductions for any taxable year or other period shall be allocated to the Category A Member that made or guaranteed or is otherwise liable with respect to the loan to which such Member Nonrecourse Deductions are attributable in accordance with principles under Treasury Regulation Section 1.704-2(i). Any Member Nonrecourse Deductions for any taxable year or other period shall be allocated to the Category B Member that made or guaranteed or is otherwise liable with respect to the loan to which such Member Nonrecourse Deductions are attributable in accordance with principles under Treasury Regulation Section 1.704-2(i).

 

(d)          Any Category A Member who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) which causes or increases an Adjusted Capital Account Deficit with respect to such Category A Member shall be allocated items of Profit attributable to Category A Property sufficient to eliminate such increase or negative balance caused thereby, as quickly as possible, to the extent required by such Treasury Regulation. Any Category B Member who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) which causes or increases an Adjusted Capital Account Deficit with respect to such Category B Member shall be allocated items of Profit attributable to Category B Property sufficient to eliminate such increase or negative balance caused thereby, as quickly as possible, to the extent required by such Treasury Regulation.

 

(e)          No allocation of loss or deduction shall be made to any Member if, as a result of such allocation, such Member would have an Adjusted Capital Account Deficit. (i) Any such disallowed allocation allocable to the Category A Interest shall be made to the Category A Members entitled to receive such allocation under Treasury Regulation Section 1.704-1(b)(2)(iv) in proportion to their respective Category A Percentage Interests, and (ii) any such disallowed allocation allocable to the Category B Interest shall be made to the Category B Members entitled to receive such allocation under Treasury Regulation Section 1.704-1(b)(2)(iv) in proportion to their respective Category B Percentage Interests. If losses or deductions are reallocated under this Section 6.02(e), subsequent allocations of income and losses (and items thereof) shall be made so that, to the extent possible, the net amount allocated under this Section 6.02(e) equals the amount that would have been allocated to each Member if no reallocation had occurred under this Section 6.02(e).

 

(f)          For purposes of Section 752 of the Code and the Treasury Regulations thereunder, (i) excess nonrecourse liabilities (within the meaning of Treasury Regulations Section 1.752-3(a)(3)) attributable to the Category A Interests shall be allocated to the Category A Members pro rata in proportion to their respective Category A Percentage Interests, and (ii) excess nonrecourse liabilities (within the meaning of Treasury Regulations Section 1.752-3(a)(3)) attributable to the Category B Interests shall be allocated to the Category B Members pro rata in proportion to their respective Category B Percentage Interests

 

 

(g)          The allocations contained in Sections 6.02(a), 6.02(c), 6.02(d) and 6.02(e) (the ”Regulatory Allocations”) are intended to comply with certain requirements of Treasury Regulation Sections 1.704-1 and 1.704-2. The Regulatory Allocations shall be taken into account in allocating Profits, Losses, Net Profit and Net Loss and other items of income, gain, loss and deduction among the Members so that to the extent possible, the aggregate of (i) the allocations made to each Member under this Agreement other than the Regulatory Allocations and (ii) the Regulatory Allocations made to each Member shall equal the net amount that would have been allocated to each Member had the Regulatory Allocations not occurred as necessary to effect the intent of Section 6.07. The Managing Member shall take account of the fact that certain of the Regulatory Allocations will occur at a period in the future for purposes of applying this Section 6.02(g).

 

(h)          Interest on Category A Shortfall Loans and Category B Shortfall Loans shall be treated as interest under the Code. Items of Profit shall be allocated to Category A Shortfall Contributing Members and Category B Shortfall Contributing Members to the extent of the accrued return on Category A Shortfall Capital Contributions provided in Section 6.03(a) or Category B Shortfall Capital Contributions provided in Section 6.04(b).

 

6.03

Category a Distributions and Payments

 

Except as provided in Sections 6.05 and Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make distributions (or, in the case of Category A Shortfall Loans, payments) of Category A Net Cash Flow to the Category A Members in the following manner and order of priority:

 

(a)          First, to Category A Shortfall Contributing Members (i) for the repayment of and in proportion to any amounts outstanding under Category A Shortfall Loans (principal and interest), and then (ii) pro rata (based upon the relative aggregate amounts then distributable under this Section 6.03(a)(ii)) until each of the Category A Shortfall Contributing Members has received aggregate distributions of Category A Net Cash Flow pursuant to this Section 6.03(a)(ii) in an amount necessary to provide each such Category A Shortfall Contributing Member with a twenty percent (20%) IRR with respect to all of its Category A Shortfall Capital Contributions. The parties agree that distributions under this Section 6.03(a) with respect to Category A Shortfall Loans or Category A Shortfall Capital Contributions will be applied first to the interest on Category A Shortfall Loans or to the return on Category A Shortfall Capital Contributions, respectively, to the extent accrued as of the date of distribution, and then to the return of principal on such Category A Shortfall Loans or to the return of such Category A Shortfall Capital Contributions, respectively. The parties further agree that the interest on Category A Shortfall Loans and the return on Category A Shortfall Capital Contributions represents a commercially reasonable rate of return on such Category A Shortfall Loans and Category A Shortfall Capital Contributions, respectively;

 

 

(b)          Second, to the Category A Members, pro rata, in proportion to the amounts required to be distributed pursuant to this Section 6.03(b), until such time as each of the Category A Members has received aggregated distributions pursuant to this Section 6.03(b) in an amount equal to its Category A Gross Adjusted Capital Contributions; and

 

(c)          Third, to the Category A Members, pro rata, in proportion to their respective Category A Percentage Interests.

 

6.04

Category B Distributions and Payments

 

Except as provided in Sections 6.06 and 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make distributions (or, in the case of Category B Shortfall Loans, payments) of Category B Net Cash Flow to the Category B Members in the following manner and order of priority:

 

(a)          First, to Category B Shortfall Contributing Members (i) for the repayment of and in proportion to any amounts outstanding under Category B Shortfall Loans (principal and interest), and then (ii) pro rata (based upon the relative aggregate amounts then distributable under this Section 6.04(a)(ii)) until each of the Category B Shortfall Contributing Members has received aggregate distributions of Category B Net Cash Flow pursuant to this Section 6.04(a)(ii) in an amount necessary to provide each such Category B Shortfall Contributing Member with a twenty percent (20%) IRR with respect to all of its Category B Shortfall Capital Contributions. The parties agree that distributions under this Section 6.04(a) with respect to Category B Shortfall Loans or Category B Shortfall Capital Contributions will be applied first to the interest on Category B Shortfall Loans or to the return on Category B Shortfall Capital Contributions, respectively, to the extent accrued as of the date of distribution, and then to the return of principal on such Category B Shortfall Loans or to the return of such Category B Shortfall Capital Contributions, respectively. The parties further agree that the interest on Category B Shortfall Loans and the return on Category B Shortfall Capital Contributions represents a commercially reasonable rate of return on such Category B Shortfall Loans and Category B Shortfall Capital Contributions, respectively;

 

(b)          Second, to the Category B Members, pro rata, in proportion to the amounts required to be distributed pursuant to this Section 6.04(b), until such time as each of the Category B Members has received aggregated distributions pursuant to this Section 6.04(b) in an amount equal to its Category B Gross Adjusted Capital Contributions; and

 

(c)          Third, to the Category B Members, pro rata, in proportion to their respective Category B Percentage Interests until such time as MN Retail has received aggregate distributions pursuant to Section 6.03(b), Section 6.03(c), Section 6.04(b) and this Section 6.04(c) in an amount necessary to provide a twelve percent (12%) IRR to MN Retail with respect to its Gross Adjusted Capital Contributions;

 

 

 

(d)          Fourth, (i) ten percent (10%) to Operating Member, and (ii) the balance to Operating Member, REIT and MN Retail pro rata in proportion to their respective Category B Percentage Interests, until such time as MN Retail has received aggregate distributions pursuant to Section 6.03(b), Section 6.03(c), Section 6.04(b), Section 6.04(c) and this Section 6.04(d) in an amount necessary to provide to MN Retail the greater of (x) a seventeen percent (17%) IRR with respect to its Gross Adjusted Capital Contributions and (y) a 1.5x Equity Multiple;

 

(e)          Fifth, (i) seventeen and one-half percent (17.5%) to Operating Member, and (ii) the balance to the Category B Members, pro rata, in proportion to their respective Category B Percentage Interests, until such time as MN Retail has received aggregate distributions pursuant to Section 6.03(b), Section 6.03(c), Section 6.04(b), Section 6.04(c), Section 6.04(d) and this Section 6.04(e) in an amount necessary to provide to MN Retail the greater of (x) a twenty-two percent (22%) IRR with respect to its Gross Adjusted Capital Contributions and (y) a 1.75x Equity Multiple; and

 

(f)          Sixth, (i) twenty-five percent (25%) to Operating Member, and (ii) the balance to the Category B Members, pro rata, in proportion to their respective Category B Percentage Interests.

 

6.05

Category a Special Payments and Distributions

 

(a)          (i) From and after the time (A) Operating Member shall have been removed as Managing Member for cause, (B) Operating Member failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06 and MN Retail has returned such distributions or (C) Operating Member or its Affiliate shall have been removed as Property Manager under the Property Management Agreement “for cause”, and (ii) provided that at such time TRS has not failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06, Category A Net Cash Flow shall not be distributed as provided in Section 6.03 but rather pursuant to this Section 6.05(a), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category A Net Cash Flow to the Category A Members in the following manner and order of priority:

 

(i)          First, as provided in Section 6.03(a);

 

(ii)         Second, to MN Retail and TRS pro rata, in proportion to their respective losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s), until MN Retail and TRS have received distributions under this Section 6.05(a)(ii) in amounts necessary to compensate MN Retail and TRS for any losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s); and

 

(iii)        Thereafter, in accordance with Sections 6.03(b) and (c).

 

  

(b)          (i) From and after the time TRS has failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06 and provided (ii) (A) Operating Member has not been removed as Managing Member for cause, (B) Operating Member has not failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06 and (C) Operating Member or its Affiliate has not been removed as Property Manager under the Property Management Agreement “for cause,” Category A Net Cash Flow shall not be distributed as provided in Section 6.03 but rather pursuant to this Section 6.05(b), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category A Net Cash Flow to the Category A Members in the following manner and order of priority:

 

(i)          First, as provided in Section 6.03(a);

 

(ii)         Second, to MN Retail until MN Retail has received distributions under this Section 6.05(b)(ii) in an amount necessary to compensate MN Retail for any losses, claims, damages or liabilities arising out of or in connection with such failure by TRS; and

 

(iii)        Thereafter, in accordance with Sections 6.03(b) and (c).

 

(c)          (i) From and after the time (A) Operating Member shall have been removed as Managing Member for cause, (B) Operating Member failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06 and MN Retail has returned such distributions or (C) Operating Member or its Affiliate shall have been removed as Property Manager under the Property Management Agreement “for cause”, and (ii) provided that at such time TRS has failed to return any distributions pursuant to the provisos in Section 4.02(a) or Section 4.06, Category A Net Cash Flow shall not be distributed as provided in Section 6.03 but rather pursuant to this Section 6.05(c), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category A Net Cash Flow to the Category A Members in the following manner and order of priority:

 

(i)          First, as provided in Section 6.03(a);

 

(ii)         Second, to MN Retail until MN Retail has received distributions under this Section 6.05(c)(ii) in an amount necessary to compensate MN Retail for any losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s) and/or such failure by TRS; and

 

(iii)        Third, as provided in Sections 6.03(b) and (c).

 

Upon this Section 6.05 becoming effective, Capital Accounts of the Category A Members shall be adjusted as, and to the extent, specified in clause (B) of Section 4.02(c).

 

6.06

Category B Special Payments and Distributions

 

(a)          (i) From and after the time (A) Operating Member shall have been removed as Managing Member for cause, (B) Operating Member failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06 and MN Retail has returned such distributions or (C) Operating Member or its Affiliate shall have been removed as Property Manager under the Property Management Agreement “for cause”, and (ii) provided that at such time REIT has not failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06, Category B Net Cash Flow shall not be distributed as provided in Section 6.04 but rather pursuant to this Section 6.06(a), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category B Net Cash Flow to the Category B Members in the following manner and order of priority:

 

  

(i)          First, as provided in Section 6.04(a);

 

(ii)         Second, to MN Retail and REIT pro rata, in proportion to their respective losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s), until MN Retail and REIT have received distributions under this Section 6.06(a)(ii) in amounts necessary to compensate MN Retail and REIT for any losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s); and

 

(iii)        Thereafter, in accordance with Sections 6.04(b) through (f); provided that any amounts that would have been distributed to Operating Member in excess of its pro rata share in proportion to its Category B Percentage Interest shall be distributed to the Category B Members in proportion to their Category B Percentage Interests.

 

(b)          (i) From and after the time REIT has failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06 and provided (ii) (A) Operating Member has not been removed as Managing Member for cause, (B) Operating Member has not failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06 and (C) Operating Member or its Affiliate has not been removed as Property Manager under the Property Management Agreement “for cause,” Category B Net Cash Flow shall not be distributed as provided in Section 6.04 but rather pursuant to this Section 6.06(b), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category B Net Cash Flow to the Category B Members in the following manner and order of priority:

 

(i)          First, as provided in Section 6.04(a);

 

(ii)         Second, to MN Retail until MN Retail has received distributions under this Section 6.06(b)(ii) in an amount necessary to compensate MN Retail for any losses, claims, damages or liabilities arising out of or in connection with such failure by TRS; and

 

(iii)        Thereafter, in accordance with Sections 6.04(b) through (f); provided, that any amounts that would have been distributed to REIT in excess of its pro rata share in proportion to its Category B Percentage Interest shall be distributed to the Category B Members in proportion to their Category B Percentage Interests.

 

  

(c)          (i) From and after the time (A) Operating Member shall have been removed as Managing Member for cause, (B) Operating Member failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06 and MN Retail has returned such distributions or (C) Operating Member or its Affiliate shall have been removed as Property Manager under the Property Management Agreement “for cause”, and (ii) provided that at such time REIT has failed to return any distributions pursuant to the provisos in Section 4.03(a) or Section 4.06, Category B Net Cash Flow shall not be distributed as provided in Section 6.04 but rather pursuant to this Section 6.06(c), and, except as provided in Section 6.07, the Company shall, as soon as reasonably practical (but no less often than quarterly, if appropriate), make payments or distributions, as applicable, of Category B Net Cash Flow to the Category B Members in the following manner and order of priority:

 

(i)          First, as provided in Section 6.04(a);

 

(ii)         Second, to MN Retail until MN Retail has received distributions under this Section 6.06(c)(ii) in an amount necessary to compensate MN Retail for any losses, claims, damages or liabilities arising out of or in connection with the applicable “for cause” event(s) and/or such failure by TRS;

 

(iii)        Third, as provided in Section 6.04(b); and

 

(iv)        Thereafter, to the Category B Members in proportion to their Category B Percentage Interests.

 

Upon this Section 6.06 becoming effective, Capital Accounts of the Category B Members shall be adjusted as, and to the extent, specified in clause (B) of Section 4.03(c).

 

6.07

Distributions in Liquidation

 

Upon the dissolution and winding-up of the Company, the proceeds (which proceeds shall be apportioned between Category A Net Cash Flow and Category B Net Cash Flow) of sale and other assets of the Company distributable to the Members under Section 11.02(c)(iii) shall be distributed, not later than the latest time specified for such distributions pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(b)(2) to the Category A Members in the manner specified in Section 6.03 or Section 6.05 (whichever is applicable at the time of such distribution) and to the Category B Members in the manner specified in Section 6.04 or Section 6.06 (whichever is applicable at the time of such distribution). It is the intent that such distributions be in proportion to the positive balances in the Members’ Capital Accounts immediately prior to such distributions, and Net Profits, Net Loss and, if necessary, other items of income, gain, loss or deduction for the year of such distribution (and, if prior to the filing of the tax return for the Company and permitted by the Code, the prior taxable year) shall be allocated among the Members so as to cause such Capital Account balances to equal the amounts so distributable. With the approval of MN Retail, a pro rata portion of the distributions that would otherwise be made to the Members under the preceding sentence may be distributed to a trust reasonably established, for a reasonable period of time, for the benefit of the Members for the purposes of liquidating Company Property, collecting amounts owed to the Company, and paying any contingent or unforeseen liabilities or obligations of the Company arising out of or in connection with the Company. The assets of any trust established under this Section 6.07 will be distributed to the Members from time to time by the trustee of the trust upon approval of MN Retail in the same proportions as the amount distributed to the trust by the Company would otherwise have been distributed to the Members under this Agreement.

 

  

6.08

Tax Matters

 

The Members intend for the Company to be treated as a partnership for federal income tax purposes. The Managing Member shall make all applicable elections, determinations and other decisions under the Code and applicable Treasury Regulations, including, without limitation, the deductibility of a particular item of expense and the positions to be taken on the Company’s tax return following MN Retail’s approval of such elections, determinations and other decisions, and any settlement or compromise of audit matters raised by the Internal Revenue Service affecting the Members generally shall be subject to MN Retail’s prior written consent. The Members shall each take reporting positions on their respective federal, state and local income tax returns consistent with the positions for the Company approved by MN Retail. Managing Member shall cause all federal, state and local income and other tax returns to be timely filed by the Company and shall, after receiving MN Retail’s approval of such returns, be authorized to execute such returns (provided that Managing Member shall, for so long as it diligently performs its obligations hereunder, not be responsible for the delays of any other Member or reputable accountants or auditors retained by Managing Member or at the request of MN Retail on behalf of the Company).

 

6.09

Tax Matters Partner

 

MN Retail shall be the tax matters partner within the meaning of Section 6231(a)(7) of the Code and, subject to Section 6.08, shall exercise all rights, obligations and duties of a tax matters partner under the Code; provided, however, that the other Members shall be kept informed of, and given an opportunity to participate in a non-binding manner in, all such matters which the tax matters partner deems to be material; provided, however, that if a tax settlement would have a disproportionate material adverse impact on one of the other Members, such Member shall be given a reasonable period of time to approve the proposed settlement, which approval shall not be unreasonably withheld, conditioned or delayed.

 

6.10

Allocations for Income Tax Purposes

 

(a)          Except as provided in Section 6.10(b) or otherwise as required under Section 704(b) of the Code and the related Treasury Regulations, each item of income, gain, loss or deduction of the Company for federal income tax purposes shall be allocated to the Members in the same manner that the corresponding item of Net Profit, Net Loss or other item of income, gain, loss or deduction that affect the Capital Accounts of the Members was allocated pursuant to Sections 6.01 and 6.02.

 

  

(b)          In accordance with Section 704(c) of the Code and the applicable Treasury Regulations thereunder, income, gain, loss, deduction and tax depreciation with respect to any property contributed to the capital of the Company, or with respect to any property which has a Book Basis different than its adjusted tax basis, shall, solely for federal income tax purposes, be allocated among the Members so as to take into account any variation between the adjusted tax basis of such property to the Company and the Book Basis of such property. Any elections, accounting conventions or other decisions relating to such allocations shall be made by MN Retail in a manner that complies with Code Sections 704(b) and 704(c) and the Treasury Regulations thereunder. For such allocations, MN Retail may select any method permitted in the Treasury Regulations under Code Section 704(c) with respect to such allocations, including the “traditional method”, the “traditional method with curative allocations” and the “remedial allocation method”.

 

All amounts required to be withheld pursuant to Section 1446 of the Code or any other provision of federal, state, or local tax law shall be treated as amounts actually distributed to the Members for all purposes under this Agreement. If the Managing Member determines that the Company has insufficient liquid assets to satisfy such withholding obligation, the Member as to which withholding applies shall contribute cash to the Company in an amount sufficient to satisfy such withholding obligation (which amounts shall not be treated as Capital Contributions and the related payment of tax shall not be treated as a distribution).

 

ARTICLE VII
MANAGEMENT

 

7.01

Management

 

(a)          Except to the extent provided elsewhere in this Agreement, the Managing Member shall manage and conduct the operations and affairs of the Company and make all decisions regarding the Company and its business and assets. The Managing Member shall have all the rights and powers of a manager as provided in the Delaware Act and as otherwise provided by law. In dealing with the Managing Member acting on behalf of the Company, no person other than the Property Manager shall be required to inquire into the authority of the Managing Member to bind the Company. Persons dealing with the Company (other than the Property Manager) are entitled to rely conclusively on the power and authority of the Managing Member as set forth in this Agreement.

 

(b)          All decisions made with respect to the management and control of the Company and approved pursuant to the terms of this Agreement shall be binding on the Company and all Members. The Managing Member may elect officers of the Company to implement the decisions (including without limitation executing documents) of the Managing Member or the Members, as applicable, from time to time. Without limiting the generality of the foregoing, except as otherwise expressly provided in Section 7.01(c) or as provided for in any Budget or Operating Plan, without the prior written consent of Majority Members in each instance, the Managing Member shall not allow the Company take the following actions (a “Major Decision”):

 

  

(i)          The execution and delivery of any agreement or instrument to purchase the Company Property and the taking of any action required or permitted to be taken thereunder (including, without limitation, all action necessary to close the purchase of the Company Property and an election as to whether or not to purchase same) or any waiver under, amendment of or assignment (in whole or in part) of any such agreement and the taking of any action required or permitted to be taken thereunder or entering into any agreements with any governmental agency, any neighboring or adjacent property owner, any community organizations or any other third parties, or sending any correspondence to or having any other material communications with, any governmental agency which directly binds the Company or advocates a position on behalf of the Company;

 

(ii)         Any financing, refinancing or securitization of any Company Property (including, without limitation, a Loan) and the use of any proceeds thereof, including, without limitation, interim and permanent financing, and any other financing or refinancing of the operations of the Company and the execution and delivery of any documents, agreements or instruments evidencing, securing or relating to any such financing;

 

(iii)        Any material decision with respect to any environmental matters affecting the Company Property;

 

(iv)        (A) Any sale, assignment, transfer or other disposition of Company Property or any part thereof, including any delegated authority under the Property Management Agreement or any activity which generates revenues; or (B) any improvement, rehabilitation, alteration, repair, or completion of construction of any Company Property (other than in the case of an emergency, where such action is required prior to obtaining consent, and the aggregate cost of such action is less than $25,000) that vary materially from the ranges and guidelines in the Budget or Operating Plan (for purposes of this Section 7.01(b)(iv), such a material variance shall be (I) an amount that is not within the ranges established in the Operating Plan or is in excess of the amount set forth in the Budget for such expenditure or line item by more than $10,000 (in addition to individual expenditures and obligations, such test shall be applied to aggregate expenditures and obligations made on a monthly basis as well); provided, however, that any tenant improvement contemplated by any approved lease or lease not requiring approval hereunder shall not be deemed a violation of this Section 7.01(b)(iv) or (II) terms that materially conflict with the other guidelines in the Operating Plan regarding such transactions); or (C) taking any action relating thereto which burdens or encumbers Company Property, and (D) any activity which generates revenues, or which is otherwise on terms, that, vary materially from the ranges and guidelines in the Budget or Operating Plan;

 

(v)         Any lease of any space within the Company Property, or any amendment or modification thereto or any termination thereof, other than any lease, amendment or modification thereto of less than 5,000 square feet of space within the Company Property which is consistent with the Operating Plan. For purposes of this Section 7.01(b)(v) only, Majority Members’ failure to approve any such lease, amendment, modification or termination within three (3) Business Days of receipt shall be deemed disapproval thereof;

 

  

(vi)        The making of any recurring operating expenditure or incurring of any recurring operating obligation by or on behalf of the Company that varies materially from the Budget or entering into (or amending or modifying) of any agreement which was not specifically included or provided in the Budget or under the Operating Plan, or otherwise approved by the Majority Members (for purposes of this Section 7.01(a)(vi), such a material variance shall be (A) expenditures or obligations involving an amount that is in excess of the amount set forth on a monthly basis or on an annual basis in the Budget for such expenditure on a line item basis by more than $10,000 for such period, (B) expenditures or obligations involving the incurrence of an expenditure or obligation for any transaction or any series of related transactions when taken with all prior expenditures or obligations during the particular quarter or fiscal year related thereto exceeds the maximum expenditure amount provided in the Budget or the Operating Plan for such particular transaction or series of transactions for such period by $10,000, or (C) in the case of any material service, maintenance or similar agreement proposed to be entered into, such agreement is not terminable (without penalty) by the Company on thirty (30) calendar days or less written notice to the other party; provided, however, that expenditures made or obligations incurred or agreements entered into pursuant to, or which are specifically included in or provided under, the Budget or Operating Plan or otherwise previously approved by Majority Members shall not be Major Decisions to the extent they do not vary (other than immaterial variances) from the Budget and Operating Plan); provided, further, that expenditures made in connection with snow removal costs at the Properties under approved agreements shall not be a Major Decision;

 

(vii)       The establishment of reasonable reserves, determination of the amount of available Category A Net Cash Flow and Category B Net Cash Flow and making of distributions to Members (subject to the requirements of Sections 6.03, 6.04, 6.05 and 6.06);

 

(viii)      The institution of any legal proceedings in the name of the Company, settlement of any legal proceedings against the Company if the settlement amount exceeds $50,000 in any single instance or $100,000 in the aggregate, and confession of any judgment against the Company or any property of the Company other than the institution of any eviction, suits for breach of tenant leases, or similar proceedings provided for in the Operating Plan;

 

(ix)         (A) Pursuing any pre-development activities for any horizontal or vertical construction to the extent that such pursuit would cause the Company to incur expenditures in excess of those provided by the Budget or under the Operating Plan, or (B) commencing any horizontal or vertical construction on any Company Property;

 

(x)          The possession or pledge of any Company Property for other than Company purposes (which shall require the consent of all Members);

 

(xi)         Notwithstanding any other provisions of this Agreement, the entering into any third party contract with an aggregate cost to the Company in excess of $25,000 (“Contract Approval Threshold”).

 

(xii)        The entering into any contracts below the Contract Approval Threshold to the extent that in connection with any such contracts (a) funds are not explicitly provided for in the Budget and/or Operating Plan, as applicable, or (b) the existence of which is not contemplated, in the Budget and/or Operating Plan, as applicable;

 

  

(xiii)       Entering into, or amending, or modifying or terminating any agreement with any manager, asset manager, leasing agent, listing agent, contractor, or sales or placement agent or broker not expressly permitted hereunder for the management, asset management, construction, leasing, disposition, financing or refinancing of any Company Property;

 

(xiv)      Any other material matter pertaining to the Company’s business that is designated to be a “Major Decision” hereunder;

 

(xv)       Any election or approval under the Purchase Agreement which the Company may exercise under same;

 

(xvi)      make any loans that are not provided for in the Budget or Operating Plan. For purposes of clarity, “loans” as used in this subparagraph (xvi) shall not include tenant workouts that permit a tenant to repay amounts owed to pursuant to a note;

 

(xvii)     amend this Agreement (provided that all Members hereby agree to make such amendments as may be reasonably requested from time to time by any lender, if any, to the Company, to the extent the same have been approved by MN Retail);

 

(xviii)    acquire any additional real property, or direct or indirect interest in any additional real property, other than the Company Property unless provided by the Budget or Operating Plan;

 

(xix)       cause the Company to make any distribution of Company property in kind to any Member;

 

(xx)        change the nature of the business conducted by the Company or its purposes as described in Section 2.05;

 

(xxi)       (A) file any voluntary petition in bankruptcy on behalf of the Company or any subsidiary of the Company (each, an “SPE”), (B) consent to or file any involuntary petition in bankruptcy against the Company or any SPE, (C) the making by the Company or any SPE of an assignment for the benefit of creditors, or (D) consent to or initiate, or cause or permit any SPE to consent to or initiate the appointment of a receiver of any Company Property or the property of any SPE;

 

(xxii)      cause the Company or any SPE to take any action (A) with the intent to hinder, delay or interfere with the exercise by an administrative agent or any Lender of any rights and remedies under the applicable Loan Documents, or (B) to contest or in any way interfere, directly or indirectly, with any foreclosure of any document securing a Loan or with any other enforcement of an administrative agent’s or any Lender’s rights, powers or remedies under any Loan Documents (whether by making any motion, seeking any extension, asserting any defense, claim, counterclaim or right of offset, seeking any injunction or other restraint, commencing any action, seeking to consolidate any such foreclosure or other enforcement with any other action, or otherwise);

 

  

(xxiii)     sell, transfer or otherwise dispose of the Company Property;

 

(xxiv)    enter into, amend or consummate any transaction or arrangement with any Member or any Affiliate of any Member, all of which shall (with the exception of the transactions described in Section 9.06 which shall not require such approval) require the approval of the non-interested Member(s) notwithstanding anything contained herein to the contrary;

 

(xxv)     Intentionally omitted; and

 

(xxvi)    approve any Budget and Operating Plan, and any material amendments or modifications thereto (which shall only be permitted in accordance with this Agreement).

 

(c)          Subject to the terms of this Agreement, and the limitations imposed by law, the Managing Member shall have all of the same powers as, but not the duties of, a general partner of a general partnership under the laws of the State of Delaware, including, without limitation, the full power and authority to:

 

(i)          Acquire, hold, operate, sell, transfer, assign, convey, exchange, lease, sublease, mortgage or otherwise dispose of or deal with all or any part of Company Property;

 

(ii)         In furtherance of the Company’s purposes and business, borrow money (including, without limitation, a Loan), whether on a secured or unsecured basis, refinance, recast, modify, amend, extend, compromise or otherwise deal with any such loan, and in connection therewith, issue evidences of indebtedness and secure the same by mortgages, deeds of trust, security agreements or other similar documents affecting the assets of the Company;

 

(iii)        Authorize other persons to execute and deliver such documents on behalf of the Company as the Managing Member may deem necessary or desirable for the Company’s business, including, without limitation, guarantees and indemnities;

 

(iv)        Perform, or cause to be performed, all of the Company’s obligations under any agreement to which the Company is a party;

 

(v)         Enter into contracts on behalf of the Company and make expenditures as are required to operate and manage the Company and the Company Properties; and

 

(vi)        Do any act which is necessary or desirable to carry out any of the purposes of the Company.

 

  

7.02

MN Retail Consultant

 

Notwithstanding anything to the contrary contained in this Agreement, MN Retail or its Affiliate may engage an external third party consultant to advise it in connection with this Agreement or the Company Property and any fees and expenses incurred by MN Retail or its Affiliate in connection therewith shall be treated as an expense of the Company and be promptly reimbursed to MN Retail upon request, provided, however, that any fee paid to such consultant shall be subject to a cap of $100,000 per year. Notwithstanding any provision to the contrary in this Agreement, the decision to retain any such external consultant shall be the sole decision of MN Retail and the same shall not constitute a Major Decision and Operating Member shall have no right to approve or disapprove the Consultant or the Consultant’s engagement agreement.

 

7.03

Duties of managing member

 

(a)          The Managing Member shall (i) conduct the business of the Company on a day-to-day basis in accordance with the standard of care required of prudent and experienced third parties performing similar functions, in accordance with customary industry standards in accordance with the Budget and the Operating Plan and such other guidelines as shall be adopted by the Company pursuant to this Agreement, which duties may be discharged by delegating the same to Property Manager pursuant to the Property Management Agreement, (ii) retain Property Manager, or another person or entity approved by MN Retail, to perform the Company Management Services for the Company, (iii) perform the duties assigned to it hereunder, and (iv) carry out and implement all decisions and resolutions of the Members. The initial Managing Member shall be Operating Member, which shall remain Managing Member unless Operating Member is terminated or resigns as Managing Member pursuant to the terms of this Agreement. Operating Member, as the initial Managing Member, shall have no authority to retire or resign from its position as the initial Managing Member; provided that Operating Member may resign as Managing Member only if Property Manager is terminated, or if Property Manager resigns from such position in accordance with the terms of the Property Management Agreement. In the event that Operating Member or any other Person should retire, resign or be removed as Managing Member, the Members shall be under no obligation to appoint a replacement thereof. Subject to the limitations set forth in this Agreement, the Managing Member, on behalf of the Company, shall have the power and authority to enter into contracts and leases on behalf of the Company in accordance with the current Budget and Operating Plan approved in accordance with this Agreement, to make expenditures as are required to implement such Budget and Operating Plan, but only to the extent that any such expenditures and amounts required to be paid by the Company under such contracts, leases and other instruments and documents have either been approved in accordance with this Agreement do not require approval in accordance with this Agreement. The Managing Member may rely on written instructions from a representative appointed in writing by MN Retail from time to time that MN Retail has approved certain actions and agreements. Subject to the Managing Member’s right to charge certain matters to the Company as provided in Sections 8.01 and 8.03 and without limiting any compensation or reimbursements Managing Member may be entitled to under the Property Management Agreement, the Managing Member shall not be entitled to receive any fees or other compensation in respect of its activities as Managing Member, and will not receive reimbursement for compensation payable to any of its employees or other direct or indirect overhead which may be attributable to the performance of its duties as Managing Member.

 

  

(b)          Notwithstanding anything to the contrary contained in Section 7.01(b)(iii), if at the beginning of any calendar year the Budget and Operating Plan or any item or portion thereof shall not have been approved by Majority Members, then:

 

(i)          Any items or portions of the Budget and Operating Plan and amounts of expenses provided therein which have been so approved shall become operative immediately and the Managing Member shall be entitled to expend funds in accordance with those operative portions;

 

(ii)         With respect to the Budget, the Managing Member shall be entitled to, and shall, expend, in respect of noncapital, recurring expenses in any month of the then-current calendar year, an amount equal to the budgeted amount for the corresponding month of the immediately preceding calendar year, as set forth on the immediately preceding calendar year Budget after giving effect to any dispositions or other material changes to Company Property during the prior or current year; provided, however, that if any contract approved by the Managing Member or entered into pursuant to the provisions hereof or the Property Management Agreement provides for an automatic increase in costs thereunder after the beginning of the then current calendar year, then the Managing Member shall be entitled to expend the amount of such increase; and

 

(iii)        The Managing Member shall be entitled to, and shall, expend funds in respect of debt service on the Company’s financing (including the expense of curing any defaults thereunder), utilities, real estate taxes and assessments, or insurance premiums with respect to insurance for the Company Property, regardless of whether the Budget has been approved or whether such expenditures exceed the amounts provided for in the applicable Budget.

 

(c)          In addition to and without limiting any other duties set forth in this Agreement, the Managing Member shall, subject to the availability of adequate funds therefor in the Budget and from Revenues, Capital Contributions or other sources, and provided that Managing Member may delegate such obligations to Property Manager or any other third parties with whom the Company may contract pursuant to the terms hereof:

 

(i)          Oversee, coordinate and process the operations, including without limitation, the management on a day-to-day basis of any and all of the assets which comprise Company Property, and prepare all communications with the Seller and other relevant third parties;

 

  

(ii)         Subject to the availability of funds therefor, take all proper and necessary actions reasonably required to cause the Company and all third parties at all times to perform and comply with the provisions (including, without limitation, any provisions requiring the expenditure of funds by the Company) of any loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which the Company is a party or which affects any Company Property or the operation thereof;

 

(iii)        Subject to the availability of funds therefor, pay in a timely manner all non-disputed operating expenses of the Company in accordance with the terms of the Budget and the Operating Plan or as otherwise provided herein;

 

(iv)        To the extent available, and subject to the availability of the funds therefor, obtain and maintain insurance coverage on Company Properties as required by the Managing Member and pay all non-disputed taxes, assessments, charges and fees payable in connection with the ownership, use and occupancy of the Company Properties (provided that if the Managing Member requires that the Company maintain insurance as part of MN Retail’s blanket policy, the Company’s allocable share of deductibles and premiums under the liability insurance policy shall be no greater than those under such policies previously maintained by Property Manager);

 

(v)         Deliver to the other Members promptly upon the receipt or sending thereof, copies of all material notices, reports and communications between the Company and any tenant, the Seller, governmental agencies, neighboring property owners, community groups and other relevant third parties, and material notices, reports, and communications from any tenant, under any lease or any borrower under any mortgage loan or any holder of a mortgage affecting all or any portion of any Company Property, or any of such other parties, which relates to any existing or pending default thereunder or to any financial or operational information required by such Person;

 

(vi)        Deposit all receipts from operations of Company Property to a separate account, or accounts, established and maintained by the Managing Member in the name of the Company or the applicable Property Company, and not commingle those receipts with any other funds or accounts of Managing Member;

 

(vii)       Manage and administer the process of selling and refinancing Company Property;

 

(viii)      If the Managing Member subcontracts with third parties or any of its Affiliates for the performance of any of the services to be performed by the Managing Member, then the Managing Member shall supervise and oversee the performance of the services performed by such third parties or Affiliates (in the event of any such subcontract, references in this Agreement to actions taken or to be taken by the Managing Member shall include actions taken or to be taken by such subcontractors);

 

  

(ix)         Execute and deliver agreements, certificates and similar documents which are necessary to obtain loans, as well as manage any approved financing or refinancing, on terms approved by the Managing Member and to acquire the Company Property pursuant to the Purchase Agreement;

 

(x)          Make periodic inspections of the Company Property and review all maintenance, repairs and construction on the Company Property;

 

(xi)         Advise the Company on such action as may be required to comply with any and all laws, ordinances, statutes and deed restrictions applicable to the Company Property;

 

(xii)        Not knowingly permit the use of the Company Property for any purpose which might impair any insurance on the Company Property or which might render any insured loss thereunder uncollectible or which would be in violation of any applicable law;

 

(xiii)       Promptly recommend from time to time the advisability of contesting either the validity or the amount of personal and real property taxes, if Managing Member deems such a contest appropriate

 

(xiv)      Fully cooperate with the Company and the Company’s representatives, including leasing agents, tax consultants, brokers involved in the sale of all or any portion of the Company Property, any potential purchaser of all or any portion of the Company Property, appraisers, and counsel with the view that such representatives shall be able to perform their duties efficiently and without interference. Such parties shall be allowed to visit the Company Property and inspect the same at such times as MN Retail may request;

 

(xv)       Advise the Company on such action as may be necessary to comply with any and all laws, ordinances, statutes and deed restrictions applicable to the Company Property;

 

(xvi)      Notify MN Retail of any of the following in any way relating to the Company Property promptly following Managing Member’s receipt thereof: written notice of any claim of violation of any legal requirement other than those which can be corrected for less than $10,000 (or $150,000 if covered by insurance), and without penalty or fine within thirty (30) days of notification thereof, provided that notice is required for any claim that names any MN Retail Party; written notice of any claim of liability; material written complaints from any contractor, sub-contractor or other party involved in providing or assisting with the operation, maintenance, and repair of the Company Property; written notice of any default under any Loan Documents secured by the Company Property; any summons or other legal process; any material damage to the Company Property; any threatened (in writing by an applicable Governmental Authority or its agent) condemnation or acquisition in lieu of condemnation of the Company Property or any portion thereof; and any actual or alleged (in writing) personal injury or property damage, and promptly notify MN Retail of any verbal notice Managing Member receives related to any of the foregoing, but only if Managing Member, acting reasonably and in good faith, deems the same to be material to the ownership or operation of the Company Property. For purposes of this subsection (xvi), “material” shall mean any claim for $10,000 or greater in any one instance, or $50,000 in the aggregate;

 

  

(xvii)     Promptly notify MN Retail of any material default or alleged (in writing) material default by any party under any lease of all or any portion of the Company Property of which Managing Member is aware, as well as any other material information particular to the Company Property;

 

(xviii)    Advise the Company with respect to any presentations before public agencies at both public and private meetings which relate to or affect the Company Property, and in all dealings with the press, community leaders, owners of adjacent property, and all other parties directly or indirectly involved with the Company Property or with interests which may affect the success of the Company Property;

 

(xix)       Comply at all times with this Agreement, including submitting to the Members for their approval any decisions or matters which may be subject to their approval under this Agreement; and

 

(xx)        Report to MN Retail with respect to Managing Member’s compliance with the foregoing duties.

 

(d)          MN Retail shall have the absolute right, power and authority at any time to terminate Operating Member’s appointment as Managing Member hereunder and to appoint a successor Managing Member, and to remove Property Manager as the manager under the Property Management Agreement and to terminate the Property Management Agreement (and any other agreements or contracts between the Company and Affiliates of Operating Member or Property Manager) and/or appoint a new manager pursuant thereto “for cause”, or “for lack of performance”, or for an Event of Default. MN Retail’s determination of whether a “for cause” event, a “for lack of performance” event or an Event of Default by Operating Member shall have occurred shall be conclusive and binding on the Members unless and until Operating Member shall have obtained a final, non-appealable judgment of a court of competent jurisdiction finding that no “for cause” event, “for lack of performance” event or Event of Default by Operating Member has occurred. In the event that Operating Member shall have been removed as Managing Member, or in the event Property Manager is removed as the manager under the Property Management Agreement, “for cause”, then under such circumstances and from that time forward (i) Operating Member shall immediately cease to be Managing Member (and Property Manager shall immediately cease to be the manager under the Property Management Agreement), (ii) Operating Member shall cease to have any right to any distributions under Section 6.03 and Section 6.04 and from that time forward distributions to the Members shall be made under Section 6.05 and Section 6.06 or, (iii) Operating Member shall forfeit its right to receive any fees under Section 7.04 and Property Manager shall forfeit its right to receive any fees under the Property Management Agreement and (iv) Operating Member shall not have any right to vote on Major Decisions other than as provided in Section 7.01(b). In the event that Operating Member shall have been removed as Managing Member, or in the event Property Manager is removed under the Property Management Agreement, as a result of an Event of Default (which does not constitute “for cause”) by Operating Member or Property Manager, or “for lack of performance”, then Operating Member shall immediately cease to be Managing Member (and Property Manager shall immediately cease to be the manager under the Property Management Agreement), and Operating Member shall retain its right to receive distributions hereunder pursuant to Section 6.03 and Section 6.04 (to the extent of its Interest), but (A) Operating Member shall forfeit its right to receive any fees under Section 7.04, (B) Property Manager shall be terminated within ninety (90) days after such termination and shall thereafter lose its right to receive payments under the Property Management Agreement which would otherwise have accrued from and after the expiration of said ninety (90) day period (provided that MN Retail, at its election, may accelerate the termination of Property Manager to the date of the termination of Operating Member as Managing Member for any reason other than for cause, provided that Property Manager shall remain entitled to receive management fees and reimbursements payable, if applicable, under the Property Management Agreement through the termination date of said Property Manager), and (C) Operating Member shall not have any right to vote on Major Decisions other than Fundamental Decisions.

 

  

(e)          Operating Member’s appointment as Managing Member shall automatically terminate if Operating Member’s (or its permitted transferee’s) Category A Percentage Interest or Category B Percentage Interest is less than five percent (5%).

 

7.04

Services and Fees

 

(a)          The Company and Property Manager shall enter into the Property Management Agreement substantially concurrently with the execution of this Agreement. The Property Management Agreement shall provide that after the Company’s acquisition of the Company Property, and while the Company owns the Company Property and Operating Member owns a Category A Percentage Interest of at least five percent (5%) and a Category B Percentage Interest of at least five percent (5%), and provided that (i) no Event of Default by Operating Member or any of its Affiliates then exists hereunder or under the Property Management Agreement, and (ii) Operating Member has not been removed as the Managing Member pursuant to this Agreement, the Company shall pay Property Manager the Property Management Fee and the Construction Management Fee (each as defined in the Property Management Agreement) and leasing commissions pursuant to the terms and conditions of the Property Management Agreement for so long as Property Manager is performing the services required of it under the Property Management Agreement and under any related agreements.

 

(b)          On the first day of each month of each year during the term of this Agreement, the Company shall pay to Operating Member (unless Operating Member has forfeited its right to receive fees under this Section 7.04) an asset management fee equal to (i) to the weighted average aggregate Investment Value of the Company Property owned by the Company during the immediately preceding month multiplied by (ii) 0.02083% (an example of the foregoing is attached as Schedule C). For purposes hereof, “Investment Value” means, initially, with respect to each property included in the Company Property, the appraised value of such property as of the Closing Date; provided, the Investment Value of each property shall be (i) reduced pro rata in connection with sales of portions of such properties and (ii) excluded upon the sale of such property. On the first day of each month of each year during the term of this Agreement, the Company shall pay to MN Retail (or a third party designated by MN Retail) an asset management fee equal to the greater of (A) .15% of the total Capital Contributions made to the Company, or (B) $2,500.

 

  

(c)          If and only if as of the date of calculation MN Retail has received distributions hereunder in an amount necessary to provide MN Retail at least a twelve percent (12%) IRR with respect to its Gross Adjusted Capital Contributions, then promptly following the sale of the last Company Property, the Company shall pay Operating Member the Disposition Fee.

 

(d)          Except as set forth in this Section 7.04, any agreements with an Affiliate of any Member must be approved by the non-Affiliated Members, and no other fees or compensation will be paid by the Company to any Member or any of its Affiliates. Neither Operating Member nor any of its Affiliates will be entitled to any development, leasing or other fees associated with the management, development and leasing of any of the Company Properties except as set forth in the Property Management Agreement and will not be entitled to any reimbursement for its employees or other direct or indirect overhead, except as set forth in the Property Management Agreement or this Agreement, or as otherwise provided by the Budget.

 

7.05

Duties and Conflicts

 

(a)          The Members and their respective officers, employees, the Managing Member and Affiliates shall devote such time to the Company business as they deem to be necessary or desirable in connection with their respective duties and responsibilities hereunder. Except as provided hereunder or as otherwise agreed to in writing by the Managing Member and all disinterested Members, no Member nor any member, partner, shareholder, officer, director, employee, agent or representative of any Member shall receive any salary or other remuneration for its services rendered pursuant to this Agreement.

 

(b)          Each of the Members recognizes that each of the other Members and its members, managers partners, shareholders, officers, directors, employees, agents, representatives, the Managing Member and Affiliates, have or may have other business interests, activities and investments, some of which may be in conflict or competition with the business of the Company and that each of the other Members and its members, managers, partners, shareholders, officers and directors, employees, agents, representatives, the Managing Member and Affiliates, are entitled to carry on such other business interests, activities and investments. Except as set forth below, each of the Members may engage in or possess an interest in any other business or venture of any kind, independently or with others, including, without limitation, owning, financing, acquiring, leasing, promoting, developing, improving, operating, managing and servicing real property and mortgage loans on its own behalf or on behalf of other entities with which any of the Members is affiliated or otherwise, and each of the Members may engage in any such activities, whether or not competitive with the Company, without any obligation to offer any interest in such activities to the Company or to the other Members. Neither the Company nor the other Members shall have any right, by virtue of this Agreement, in or to such activities, or the income or profits derived therefrom, and the pursuit of such activities, even if competitive with the business of the Company, shall not be deemed wrongful or improper.

 

  

(c)          Notwithstanding the foregoing, except as provided herein below, during the term of this Agreement, (i) Operating Member shall not pursue an opportunity or enter into a transaction (whether as lender, owner, shareholder, partner, director, officer, employee, agent, consultant or other advisor), for the financing, acquisition, ownership, entitlement, management, operation, leasing, construction, or development, of any other property within a ten (10) mile radius of any Company Property (the “Competitive Area”) that has a use comparable to the present projected or actual use of the Company Property or otherwise competes with the Company Property in any way, whether directly or indirectly, including without limitation through any of its Affiliates or in any other manner (each, a “Competitive Opportunity”). If Operating Member or any Affiliate of Operating Member desires to pursue a Competitive Opportunity, then MN Retail and its Affiliates (including, without limitation, any affiliates of funds or accounts managed by MN Retail Capital Management, L.P.) (each, a “MN Retail Party”), shall have a right of first offer with respect to any such Competitive Opportunity so long as such proposed acquisition or development opportunity is a permitted investment under any operating documents and/or fund documents that the applicable MN Retail Party is subject to (each, a “ROFO Opportunity”). Operating Member hereby represents and warrants that, as of the date hereof, neither it nor any Affiliate is involved in any Competitive Opportunity or any ROFO Opportunity which has not been disclosed in writing to MN Retail.

 

In the event Operating Member or any Affiliate of Operating Member desires to pursue a ROFO Opportunity, Operating Member shall give MN Retail notice of such ROFO Opportunity, which notice shall include the proposed terms and conditions thereof and proposed investment return thereon (in pro forma form) in sufficient detail to permit MN Retail to make an informed decision as to its desire to proceed with said ROFO Opportunity on the same terms as set out in the notice (together with such supporting information as MN Retail may reasonably request, “Investment Notice”). MN Retail shall have thirty (30) days from the date of such notice to determine whether it desires to proceed with said ROFO Opportunity on the same terms as set out in the Investment Notice. If MN Retail elects to proceed, it shall do so in a separate joint venture upon terms and conditions similar to the terms and conditions of this Agreement but subject to said revised economic terms as set forth in the Investment Notice or otherwise acceptable to MN Retail and Operating Member. If MN Retail gives notice within said thirty (30) day period that it does not desire to proceed with said opportunity on the terms set forth in the Investment Notice or fails to respond to such Investment Notice within the 30-day period, then Operating Member may proceed with said opportunity either alone, with its Affiliates or otherwise upon terms and conditions not materially more favorable to any alternate provider of capital for such opportunity than the terms and conditions set forth in the Investment Notice; provided, however, that in any event the opportunity is modified to be upon terms materially more favorable to such alternate capital provider than the terms and conditions set forth in the Investment Notice, then the provisions of this paragraph shall again be applicable and an additional Investment Notice shall be required to be delivered by Operating Member to MN Retail pursuant to the terms hereof. For purposes of the preceding sentence, terms and conditions shall be deemed materially more favorable to such alternate capital provider if the proposed return on investment of MN Retail would increase by fifteen percent (15%) or more over that which would be received under the terms set forth in the Investment Notice. By way of example, if the pro forma included with the Investment Notice indicated a projected return on investment of twenty percent (20%) to MN Retail and MN Retail declined to proceed with the proposed investment, Operating Member would be obligated to again offer the proposed investment to MN Retail if the proposed terms and conditions were modified so that the projected return on investment was equal to or greater than twenty-three percent (23%). If Operating Member has complied with the conditions set forth above, Operating Member shall have no further obligation to offer the proposed investment to MN Retail once proposed terms have been accepted by such alternative capital provider as evidenced by a term sheet signed by Operating Member of its Affiliates, on the one hand, and such alternate capital provider, on the other hand.

 

  

Notwithstanding the foregoing, MN Retail, for itself and each MN Retail Party, acknowledges Operating Member’s obligation to provide investment opportunities to TRS and REIT and agrees that the foregoing obligation of Operating Member to provide ROFO Opportunities to MN Retail shall be subject and subordinate to Operating Member’s existing obligations to REIT.

 

If MN Retail, or any MN Retail Party, elects to pursue a ROFO Opportunity or otherwise enters into a Value-Add Retail Joint Venture with Operating Member or any Affiliate of Operating Member, then any agreement entered into between Operating Member and MN Retail, or the applicable MN Retail Party, shall be cross defaulted with this Agreement, such that a for cause event resulting in the removal of Operating Member or any Affiliate of Operating Member as Property Manager, Managing Member or the like under this Agreement shall result in the same under the other agreement and vice versa. If MN Retail or any MN Retail Party elects to pursue a ROFO Opportunity, then any agreement entered into between Operating Member and MN Retail, or the applicable MN Retail Party, shall provide that Operating Member must contribute not less than ten percent (10%) toward the total capitalization of the ROFO Opportunity. Notwithstanding the foregoing, should TRS or REIT participate in a ROFO Opportunity at a level not less than fifteen percent (15%), then Operating Member shall be required to contribute not less than five percent (5%) to such ROFO Opportunity.

 

The terms of this Section 7.05(c) shall expire, and Operating Member shall have no further obligation to provide MN Retail or any MN Retail Party any ROFO Opportunity following the earliest to occur of (i) the third anniversary of the Effective Date, or (ii) the date on which MN Retail (which for purposes hereof includes each MN Retail Party) has rejected three (3) ROFO Opportunities which satisfy MN Retail’s investment criteria.

 

  

(d)          TRS hereby represents and warrants that, except as disclosed to MN Retail in writing, as of the date hereof, neither TRS nor any of its Affiliates has an interest in any property within a ten (10) mile radius of any Company Property that has a use comparable to the present projected or actual use of the Category B Property or otherwise competes with the Category B Property in any way, whether directly or indirectly.

 

(e)          REIT hereby represents and warrants that, except as disclosed to MN Retail in writing, as of the date hereof, neither REIT nor any of its Affiliates has an interest in any property within a ten (10) mile radius of any Company Property that has a use comparable to the present projected or actual use of the Category A Property or otherwise competes with the Category A Property in any way, whether directly or indirectly.

 

7.06

Company Expenses

 

Except as otherwise provided in this Agreement or the Property Management Agreement, except for the costs of preparing the reports specifically called for by the terms hereof and the Budget and the Operating Plan, which shall be the cost of Managing Member (provided that cost of materials and reasonable third party costs shall be at the Company’s expense), except for costs which are to be borne by Property Manager pursuant to the terms of the Property Management Agreement, and except for any costs to be borne by any third party under any agreement with the Company, the Company shall be responsible for paying, and shall pay, all direct costs and expenses related to the business of the Company and of acquiring, holding, owning, developing, servicing, collecting upon and operating Company Property. Subject to the preceding sentence, all fees and expenses payable under Section 7.04, costs and expenses relating to any employees, staff or other personnel approved by the Managing Member to provide day-to-day operations and financial reporting to oversee the operations of Company Property, costs of financing, fees and disbursements of attorneys, financial advisors, accountants, appraisers, brokers and engineers, travel expenses, and all other fees, costs and expenses directly attributable to the business and operations of the Company shall be borne by the Company. In the event any such costs and expenses are or have been paid by any Member, such Member shall be entitled to be reimbursed for such payment so long as such payment is reasonably necessary for Company business or operations and has been approved by the Managing Member or is expressly authorized in this Agreement or the appropriate Budget or Operating Plan (including any permitted variance hereunder). Notwithstanding the foregoing, and without affecting any contrary terms (if any) in the Property Management Agreement, in no event shall the Company have any obligation to pay or reimburse any Member for any general overhead expense of such Member.

 

  

ARTICLE VIII
BOOKS AND RECORDS

 

8.01

Books and Records

 

Managing Member shall maintain, or cause to be maintained, at the expense of the Company, in a manner customary and consistent with good accounting principles, practices and procedures, a comprehensive system of office records, books and accounts (which records, books and accounts shall be and remain the property of the Company) in which shall be entered fully and accurately each and every financial transaction with respect to the ownership and operation of Company Property. Bills, receipts and vouchers shall be maintained on file by Managing Member. Managing Member shall cause audits to be performed and audited statements and income tax returns to be prepared as required by Section 8.03 (provided that Managing Member shall, for so long as it diligently performs its obligations hereunder, not be responsible for the delays of any other non-Affiliated Member or reputable accountants or auditors retained by Managing Member or at the request of MN Retail on behalf of the Company). Such books and records of account shall be prepared and maintained by Managing Member at the principal place of business of Managing Member. Each Member or its duly authorized representative shall have the right to inspect, examine and copy such books and records of account at the Company’s office during reasonable business hours. MN Retail shall have the right from time to time to audit the books and records of the Company, at MN Retail’s expense.

 

8.02

Accounting and Fiscal Year

 

The books of the Company shall be kept on the accrual basis in accordance with GAAP and on a tax basis and the Company shall report its operations for tax purposes on the accrual method. The fiscal year and tax year of the Company shall end on December 31 of each year, unless a different tax year shall be required by the Code.

 

8.03

Reports

 

(a)          The Managing Member will prepare, or cause to be prepared, at the expense of the Company, and furnish to each Member (provided that the Managing Member shall, for so long as it diligently performs its obligations hereunder, not be responsible for the delays of any other non-Affiliated Member or reputable accountants or auditors retained by the Managing Member or at the request of MN Retail on behalf of the Company) (i) within thirty (30) calendar days after the end of each fiscal quarter of the Company, unless such fiscal quarter is the last fiscal quarter of any fiscal year of the Company, (A) an unaudited balance sheet of the Company dated as of the end of such fiscal quarter, (B) an unaudited related income statement of the Company for such fiscal quarter, (C) an unaudited statement of each Member’s Capital Account for such fiscal quarter, and (D) an unaudited statement of cash flows of the Company for such fiscal quarter, (ii) within fifteen (15) calendar days after the end of each calendar quarter (or calendar month, if available), a pertinent market report on sales and leasing activity in the vicinity of each Company Property, and a status report of the Company’s activities during such calendar quarter, or month, as applicable, including descriptions of additions to, dispositions of and leasing and occupancy of Company Properties and any material legal issues such as material claims filed or threatened against the Company, the arising of material claims by the Company against other parties and developments in any then pending material legal actions affecting the Company during such fiscal quarter, and (iii) within thirty (30) calendar days after the end of each month, and a reconciliation of actual Expenses and Revenues during such period compared with the Budget amounts for such items, and an explanation of the discrepancies, all of which shall be certified by the Managing Member as being, to the best of its knowledge, true and correct.

 

  

(b)          The Managing Member will prepare, or cause to be prepared, on an accrual basis in accordance with GAAP and on a tax basis, at the expense of the Company, and furnish to each Member no later than January 31 after the end of each fiscal year of the Company (i) an unaudited balance sheet of the Company dated as of the end of such fiscal year, (ii) an unaudited related income statement of the Company for such fiscal year, (iii) an unaudited statement of each Member’s Capital Account for such fiscal year, (iv) an unaudited statement of cash flows of the Company as of the end of the fiscal year, and (v) such other supporting schedules, reports and backup information as are reasonably requested by MN Retail, all of which shall be certified by the Managing Member as being true and correct. In addition, if requested by MN Retail, the Managing Member will prepare, at the expense of the Company, and furnish to each Member within sixty (60) calendar days after the end of each fiscal year of the Company, the final audited amount of net income of the Company for such fiscal year and, within ninety (90) calendar days after the end of such fiscal year, (i) an audited balance sheet of the Company dated as of the end of such fiscal year, (ii) an audited related income statement of the Company for such fiscal year, (iii) an audited statement of cash flows for such fiscal year, and (iv) an audited statement of each Member’s Capital Account for such fiscal year, all of which shall be certified by the Managing Member as being, to the best of its knowledge, true and correct and all of which shall be certified in the customary manner by the Company Accountant (which firm shall provide such balance sheet, income statement and statement of Capital Account in draft form to the Members for review prior to finalization and certification thereof).

 

(c)          The Managing Member will furnish to each Member at the expense of the Company, copies of all reports required to be furnished to any lender of the Company.

 

(d)          The Managing Member will prepare, or cause to be prepared, at the expense of the Company, and furnish to each Member not later than each April 30 a Schedule of estimated taxable income of the Company for the year ending on the following December 31, which Schedule shall be updated from time to time as needed to reflect material events. All schedules of book income shall be prepared on a GAAP basis. Promptly after the end of each fiscal year, the Managing Member will cause the Company Accountant to prepare and deliver to each Member a report setting forth in sufficient detail all such additional information and data with respect to business transactions effected by or involving the Company during the fiscal year as will enable the Company and each Member to timely prepare its federal, state and local income tax returns in accordance with applicable laws, rules and regulations. The Managing Member will use its best efforts to cause the Company Accountant to prepare all federal, state and local tax returns required of the Company, submit those returns to the Managing Member for its approval not later than April 1^st of the year following such fiscal year and will file the tax returns after they have been approved by the Managing Member. If the Managing Member shall not have approved any such tax return prior to the date required for the filing thereof (including any extensions granted), Managing Member will timely obtain an extension of such date to the extent such an extension is available.

 

  

(e)          The Managing Member shall prepare, or cause to be prepared, at Company expense, such additional financial reports and other information as the Managing Member may determine are appropriate.

 

(f)          All decisions as to accounting principles shall be made by the pursuant to and in accordance with GAAP.

 

(g)          REIT shall be entitled to receive, and the Company, Operating Member and each other Member agrees to furnish to REIT, any information that is reasonably available to the Company, such other Member or its agents, within five (5) business days of a written request to the Company by REIT for such information, if such information is reasonably necessary for REIT to determine its compliance with Sections 856-860 of the Code and the Treasury Regulations promulgated thereunder.

 

8.04

The Company Accountant

 

The Company shall retain as the regular accountant and auditor for the Company (the “Company Accountant”) any nationally-recognized accounting firm designated by MN Retail. The Members acknowledge and consent to the engagement of ▇▇▇▇ ▇▇▇▇▇ LLP as the initial Company Accountant for audit purposes and Deloitte Tax LLP as the initial tax advisor to the Company. The fees and expenses of the Company Accountant shall be a Company expense.

 

8.05

Reserves

 

The Managing Member may, in its discretion and subject to such conditions as it shall determine, establish reasonable reserves for the purposes and requirements as it may deem appropriate, subject to the prior written approval of MN Retail.

 

  

8.06

The Budget and Operating Plan

 

(a)          The Managing Member shall, no later than December 15, 2015, prepare and submit to MN Retail for MN Retail’s approval a budget and strategic operating plan (as approved, the “Initial Budget and Operating Plan”) for the Company monthly through December 31, 2015 with annual projections from January 1, 2016 through December 31, 2018, which sets forth all anticipated revenue, operating expenses, and capital expenditures of the Company, together with an exit valuation/strategy and projected capital contributions/returns and IRR’s to each Member, all of which is based on the strategic and comprehensive business plan designed to maximize the Company’s returns on the Company Property, and all of which shall be consistent with preliminary projections previously provided to the Members by Managing Member. Prior to the approval by MN Retail of the Initial Budget and Operating Plan, the Managing Member shall operate the Company in accordance with a budget otherwise approved by MN Retail (based on approved Argus models). Thereafter, the Budget and Operating Plan shall be prepared in proposed form and submitted annually by Managing Member to the Members for approval at least forty-five (45) calendar days prior to the end of each fiscal year with respect to the following fiscal year, together with three (3) year forward projections (provided if the Managing Member should fail to timely prepare and submit in proposed form any such Budget and Operating Plan, MN Retail shall be authorized to prepare such Budget and Operating Plan). In formulating the comprehensive Budget and Operating Plan, to the extent reasonably feasible at the time of preparation thereof, the Managing Member shall develop (for approval by the Members) proposed strategies regarding (i) plans for development, leasing, financing and sale of any real property and proposed reductions of Expenses and other Company costs and expenses and increases in revenues, (ii) preparation and release of all promotional and advertising material and development related plans relating to, and a marketing plan for, the Company Property or concerning the Company, (iii) terms for any proposed sale or disposition of any Company Property, or acquisition of additional Company Property, and (iv) selection of legal counsel, accountants, appraisers and other consultants for the Company to efficiently implement the Budget and Operating Plan (those professionals identified on Exhibit B attached hereto are hereby approved, subject to MN Retail’s right to withdraw such approval for poor performance by such professionals). The Managing Member will also consider and make recommendations to the extent it deems the same appropriate regarding the amendment, modification, alteration, change, cancellation, or prepayment of any indebtedness evidenced by any mortgage loan presently or hereafter affecting any Company Property, and procurement of title insurance and other insurance for the Company, or decrease or vary the insurance carried by or on behalf of the Company and any other matters affecting the Company’s business. The Managing Member shall provide the Company with detailed analyses comparing actual performance to the goals set forth on Exhibit D and the Budget and Operating Plan, together with proposals for improving performance, no less frequently than quarterly.

 

8.07

Accounts

 

All funds of the Company shall be deposited in such checking accounts, savings accounts, time deposits, or certificates of deposit in the Company’s name or shall be invested in the Company’s name, in such manner as shall be reasonably designated by MN Retail from time to time. Company funds shall not be commingled with those of any other person or entity. Company funds shall be used only for the business of the Company. The Members acknowledge and consent to the use of ▇▇▇▇▇ Fargo, N.A., as the initial depository institution for such accounts.

 

 

ARTICLE IX
TRANSFER OF INTERESTS

 

9.01

No Transfer

 

Except as expressly permitted or contemplated by this Agreement, no Member may sell, assign, give, hypothecate, pledge, encumber or otherwise transfer (“Transfer”) all or any portion of its Interest, whether directly or indirectly, without the written consent of the other Members. Except as expressly permitted or contemplated by this Agreement, Operating Member agrees not to permit any Transfer of any equity interest in such Member, or in its managing member. Any Transfer in contravention of this Article IX shall be null and void. No Member, without the prior written consent of the other Members, shall resign from the Company except as a result of such Member’s involuntary dissolution or final adjudication as a bankrupt or in connection with a Transfer permitted by this Article IX. The same restrictions set forth herein shall apply to a Transfer in or of an interest in Operating Member’ managing member, and such a Transfer shall have the same effect as a Transfer of an interest in Operating Member.

 

9.02

Permitted Transfers

 

(a)          MN Retail may from time to time and in its sole discretion without the consent of any other Member or the Company, Transfer its Interest in whole or in part to any Person. Any direct or indirect member of MN Retail may from time to time and in its sole discretion without the consent of any Member of the Company, transfer its direct or indirect interest in MN Retail in whole or in part to any Person.

 

(b)          A Transfer by TRS to REIT shall be permitted without the consent of any other Member or the Company.

 

(c)          Any permitted Transfer shall not relieve the transferor of any of its obligations prior to such Transfer. The parties hereto agree to amend the transfer provisions of Article IX if the Members reasonably determine that such amendment is necessary for the Company to be treated as a partnership for Federal and applicable state income tax purposes. Nothing contained in this Article IX shall prohibit a Transfer indirectly of any interest in the Company if a direct Transfer would otherwise be permitted under this Section 9.02. Subject to Section 9.03, any transferee pursuant to this Section 9.02 shall become a Member of the Company. The provisions of this Section 9.02 will not apply to or be deemed to authorize or permit any collateral transfer of, or grant of a security interest in, a Member’s interest in the Company, or in Company Property (which transfer or grant shall be subject to the other provisions of this Agreement).

 

9.03

Transferees

 

Notwithstanding anything to the contrary contained in this Agreement, no transferee of all or any portion of any Interest shall be admitted as a Member unless (a) such Interest is transferred in compliance with the applicable provisions of this Agreement, (b) such transferee shall have furnished evidence of satisfaction of the requirements of Section 9.02 reasonably satisfactory to the remaining Members, and (c) such transferee shall have executed and delivered to the Company such instruments as the remaining Members reasonably deem necessary or desirable to effectuate the admission of such transferee as a Member and to confirm the agreement of such transferee to be bound by all of the terms and provisions of this Agreement with respect to such Interest. At the request of the remaining Members, each such transferee shall also cause to be delivered to the Company, at the transferee’s sole cost and expense, a favorable opinion of legal counsel reasonably acceptable to the Company, to the effect that (i) such transferee has the legal right, power and capacity to own the Interest proposed to be transferred, (ii) if applicable, such Transfer does not violate any provision of any loan commitment or any mortgage, deed of trust or other security instrument encumbering all or any portion of Company Property, and (iii) such Transfer does not violate any federal or state securities laws and will not cause the Company to become subject to the Investment Company Act of 1940, as amended. As promptly as practicable after the admission of any Person as a Member, the books and records of the Company shall be changed to reflect such admission. All reasonable costs and expenses incurred by the Company in connection with any Transfer of any Interest and, if applicable, the admission of any transferee as a Member shall be paid by such transferee.

 

  

9.04

Section 754 Election

 

In the event of a Transfer of all or part of the Interest of a Member, at the request of the transferee or if in the best interests of the Company (as determined by MN Retail), the Company shall elect pursuant to Section 754 of the Code to adjust the basis of Company Property as provided by Sections 734 and 743 of the Code, and any cost of such election or cost of administering or accounting for such election shall be at the sole cost and expense of the requesting transferee.

 

9.05

INTENTIONALLY OMITTED

 

9.06

MN Retail’s Right to Force Sale

 

(a)          Notwithstanding anything to the contrary in this Agreement, at any time and from time to time after two (2) years following the Effective Date, MN Retail, acting alone, shall have the right and power to cause the Company or any Property Company to sell all or substantially all of the assets of the Company or such Property Company, or any interest therein, or make any other transfer of the Company Property, including the Company Property (the “Sale Property”), to any third party other than an Affiliate of MN Retail for a price and on terms determined by MN Retail, subject to this Section 9.06. MN Retail shall also have the right, in its sole discretion, at any time and from time to time after two (2) years following the Effective Date, to sell, directly or indirectly, to one or more third parties other than an Affiliate of MN Retail, for a price and on terms determined by MN Retail, subject to this Section 9.06, all or substantially all of MN Retail’s Interest, and in connection therewith, require Operating Member, TRS and REIT to sell all of their Interests pursuant to and in accordance with the terms and conditions of such sale (the “Membership Sale”). For purposes of this Section 9.06, MN Retail’s right to “sell” shall include a right to grant an option or to dispose of the fee interest or any other interest in the Sale Property, and references below to a “binding agreement” shall be deemed references to any agreement binding on the owner of the Sale Property by which MN Retail causes such owner to grant any such option or to dispose of the Sale Property or, if applicable, any agreement binding on MN Retail, TRS, REIT and Operating Member by which MN Retail, TRS, REIT and Operating Member shall sell their respective Interests.

 

  

(b)          If MN Retail exercises its right under this Section 9.06, it shall (on behalf of the Company or a Property Company) engage an experienced real estate broker in the geographic area in which the Sale Property is located and with the assistance of said broker, prepare marketing materials, market assets, cause the owner of the Sale Property to enter into a binding agreement(s) in connection with a sale or proposed sale and, in general, cause the owner of the Sale Property to take any acts and make any commitments which are customary or desirable in connection with the sale of property similar to that being sold by the Company or a Property Company. If MN Retail elects the Membership Sale, (i) Operating Member, TRS and REIT shall execute all documents, agreements and instruments which MN Retail may reasonably request to consummate the conveyance of Operating Member’s, TRS’ and REIT’s Interests, provided that, MN Retail shall execute substantially the same documents, agreements and instruments with respect to MN Retail’s Interest, and (ii) Operating Member, TRS and REIT shall each represent and warrant to the purchaser of MN Retail’s, TRS’, REIT’s and Operating Member’s Interests, in the binding agreement with respect to the Membership Sale, and as of the date of the closing of such Membership Sale, that (A) each Operating Member, TRS and REIT are the sole owners of their respective Interests in the Company and holds the same free and clear of any liens or other encumbrances, and (B) Operating Member, TRS and REIT each have all requisite power and authority to transfer its Interest to such purchaser pursuant to this Section 9.06. MN Retail agrees that it will select the winning offer based upon whom MN Retail reasonably determines has submitted the best qualified offer when the terms of the offer and the representation of the offeror are considered as a whole in comparison to other offers made and other offerors. MN Retail shall notify TRS, REIT and Operating Member in writing of the purchaser selected and shall use commercially reasonable efforts to keep TRS, REIT and Operating Member informed regarding the progress of the sale of the Sale Property or, if applicable, the Membership Sale. Operating Member, TRS and REIT hereby represent and warrant to, and agrees with and for the benefit of, MN Retail and the Company that MN Retail has all requisite authority to complete and facilitate any sale of Operating Member’s, TRS’ and REIT’s Interests in accordance with this Section 9.06, including transferring Operating Member’s, TRS’, REIT’s Interests and, if and to the extent Operating Member, TRS and REIT fails to transfer Operating Member’s, TRS’, or REIT’s Interest (as applicable) in accordance with this Section 9.06, Operating Member, TRS and REIT hereby irrevocably appoint MN Retail as their true and lawful attorney-in-fact (which appointment shall be deemed coupled with an interest) to individually execute all documents, agreements and instruments which MN Retail may reasonably request, and take any and all other action necessary or appropriate, to consummate the conveyance of Operating Member’s, TRS’ and REIT’s Interests in accordance with this Section 9.06. This Section 9.06 is self-operative and no additional authorization or consent of Operating Member, TRS, REIT or any of their members, managers, officers, directors or owners shall be required for the sale of Operating Member’s, TRS’ and REIT’s Interests under this Section 9.06.

 

  

(c)          In the event that MN Retail exercises its rights to sell the Category A Property under this Section 9.06, (i) prior to any such sale which constitutes a sale in bulk of all of the Company’s assets, MN Retail shall notify TRS in writing of the intended sale of Category A Property pursuant to a written notice (the “Category A Sale Notice”) which sets forth MN Retail’s intended sales price for Category A Property at the time the Category A Sale Notice is given (the “Category A Proposed Price”) and other material proposed terms (the “Category A Proposed Terms”), of such sale (which shall be determined by MN Retail in its sole discretion), and (ii) for the period commencing with the giving of the Category A Sale Notice and terminating thirty (30) days thereafter (the “Category A ROFO Period”), TRS shall have the opportunity to elect to purchase Category A Property or the Interests of MN Retail and Operating Member, at a price equal to or in excess of the Proposed Price (or, in the case of a purchase of only the Category A Interest of MN Retail and Operating Member, a price equal to or in excess of the amount that MN Retail and Operating Member would receive pursuant to the terms of this Agreement if Category A Property were sold for the Category A Proposed Price and the Company was liquidated), and on terms no less advantageous to the Company and MN Retail than the Category A Proposed Terms, by giving written notice of such election (the “Category A Acceptance Notice”) prior to expiration of the Category A ROFO Period. If TRS fails to deliver the Category A Acceptance Notice within the Category A ROFO Period, then MN Retail shall be free to compel the Company to sell Category A Property on terms determined by MN Retail in its sole discretion, but only if such sale is consummated within 365 days after the expiration of the Category A ROFO Period (the “Category A Sale Period”) at a price equal to or greater than ninety-five percent (95%) of the Category A Proposed Price. If such a sale is not completed within 365 days at a price equal to or greater than ninety-five percent (95%) of the Category A Proposed Price, then MN Retail shall offer the Category A Property to TRS in accordance with this Section 9.06(c) prior to attempting to effect a sale of the Category A Property to a third party. Together with a Category A Acceptance Notice delivered by TRS, and as a condition to the effectiveness thereof, TRS shall deposit in an escrow established by parties a non-refundable cash deposit equal to 10% of the Category A Proposed Price (and to be applied to the purchase price at closing) and consummate such sale within one hundred twenty (120) days after the date of the delivery of the Category A Acceptance Notice. If TRS delivers the Category A Acceptance Notice but defaults in the performance of its obligations to close the sale in accordance with this Agreement and any other agreement of the parties relating to such sale, TRS shall forfeit its deposit (which shall be paid to MN Retail) and shall have no further rights under this Section 9.06(c), and MN Retail may elect to (i) cause the Company to sell Category A Property at any time after such default, and on any terms, or (ii) enforce its rights by specific performance (and damages incidental to a specific performance action which are allowed as part of such action). Notwithstanding the foregoing provisions of this Section 9.06(c), none of TRS’ rights under this Section 9.06(c) shall apply to any Transfer of any Category A Interest by or any direct or indirect member of or partner in MN Retail to any of their respective Affiliates; provided, however, that if MN Retail sells its Category A Interest to a third party which is not an Affiliate of MN Retail, such sale shall be subject to the provisions of this Section 9.06(c). If Operating Member has been removed as Managing Member under this Agreement or Property Manager under the Property Management Agreement, in any such case, “for cause,” then TRS shall have no right of first offer on a sale of the Category A Property or any other rights under this Section 9.06(c). If a Vote Loss Event shall have occurred with respect to TRS, then TRS shall have no rights under this Section 9.06(c). Notwithstanding anything to the contrary herein, if the Category A Members unanimously agree to sell Category A Property at any time, then the terms of this Section 9.06(c) shall not apply to such sale.

 

  

(d)          In the event that MN Retail exercises its rights to sell the Category B Property under this Section 9.06, (i) prior to any such sale which constitutes a sale in bulk of all of the Company’s assets, MN Retail shall notify REIT in writing of the intended sale of Category B Property pursuant to a written notice (the “Category B Sale Notice”) which sets forth MN Retail’s intended sales price for Category B Property at the time the Category B Sale Notice is given (the “Category B Proposed Price”) and other material proposed terms (the “Category B Proposed Terms”), of such sale (which shall be determined by MN Retail in its sole discretion), and (ii) for the period commencing with the giving of the Category B Sale Notice and terminating thirty (30) days thereafter (the “Category B ROFO Period”), REIT shall have the opportunity to elect to purchase Category B Property or the Category B Interests of MN Retail and Operating Member, at a price equal to or in excess of the Category B Proposed Price (or, in the case of a purchase of only the Category B Interest of MN Retail and Operating Member, a price equal to or in excess of the amount that MN Retail and Operating Member would receive pursuant to the terms of this Agreement if Category B Property were sold for the Category B Proposed Price and the Company was liquidated), and on terms no less advantageous to the Company and MN Retail than the Category B Proposed Terms, by giving written notice of such election (the “Category B Acceptance Notice”) prior to expiration of the Category B ROFO Period. If REIT fails to deliver the Category B Acceptance Notice within the Category B ROFO Period, then MN Retail shall be free to compel the Company to sell Category B Property on terms determined by MN Retail in its sole discretion, but only if such sale is consummated within 365 days after the expiration of the Category B ROFO Period (the “Category B Sale Period”) at a price equal to or greater than ninety-five percent (95%) of the Category B Proposed Price. If such a sale is not completed within 365 days at a price equal to or greater than ninety-five percent (95%) of the Category B Proposed Price, then MN Retail shall offer the Category B Property to REIT in accordance with this Section 9.06(d) prior to attempting to effect a sale of the Category B Property to a third party. Together with a Category B Acceptance Notice delivered by REIT, and as a condition to the effectiveness thereof, REIT shall deposit in an escrow established by parties a non-refundable cash deposit equal to 10% of the Category B Proposed Price (and to be applied to the purchase price at closing) and consummate such sale within one hundred twenty (120) days after the date of the delivery of the Category B Acceptance Notice. If REIT delivers the Category B Acceptance Notice but defaults in the performance of its obligations to close the sale in accordance with this Agreement and any other agreement of the parties relating to such sale, REIT shall forfeit its deposit (which shall be paid to MN Retail) and shall have no further rights under this Section 9.06(d), and MN Retail may elect to (i) cause the Company to sell Category B Property at any time after such default, and on any terms, or (ii) enforce its rights by specific performance (and damages incidental to a specific performance action which are allowed as part of such action). Notwithstanding the foregoing provisions of this Section 9.06(d), none of REIT’s rights under this Section 9.06(d) shall apply to any Transfer of any Category B Interest by or any direct or indirect member of or partner in MN Retail to any of their respective Affiliates; provided, however, that if MN Retail sells its Category B Interest to a third party which is not an Affiliate of MN Retail, such sale shall be subject to the provisions of this Section 9.06(d). If Operating Member has been removed as Managing Member under this Agreement or Property Manager under the Property Management Agreement, in any such case, “for cause,” then REIT shall have no right of first offer on a sale of the Category B Property or any other rights under this Section 9.06(d). If a Vote Loss Event shall have occurred with respect to REIT, then REIT shall have no rights under this Section 9.06(d). Notwithstanding anything to the contrary herein, if the Category B Members unanimously agree to sell Category B Property at any time, then the terms of this Section 9.06(d) shall not apply to such sale.

 

  

ARTICLE X
EXCULPATION AND INDEMNIFICATION

 

10.01

Exculpation

 

No Member, Managing Member, general or limited partner of any Member, shareholder or member or other holder of an equity interest of any Member or manager, officer or director of any of the foregoing, shall be liable to the Company, any Property Company or to any other Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it and arising out of or in connection with this Agreement or the Company’s business or affairs; provided, however, that such act or omission was taken in good faith, was reasonably believed to be in the best interests of the Company and was within the scope of authority granted to such Person, and in the case of a Member or related Person other than in its capacity as Property Manager, was not attributable to such Member’s or Person’s fraud, bad faith, willful misconduct or gross negligence. No general or limited partner of any Member, shareholder, member or other holder of an equity interest in such Member or manager, officer of director of any of the foregoing shall be personally liable for the performance of any such Member’s obligations of this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member.

 

10.02

Indemnification

 

(a)          The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each Member, the Managing Member and each general or limited partner of any Member or such Member’s Affiliate, shareholder, member or other holder of any equity interest in such Member or its Affiliate, or any manager, officer or director of any of the foregoing (collectively, the “Indemnitees”), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such Indemnitee may become subject in connection with any matter arising out of or incidental to any act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or the Company’s business or affairs; provided, however, that such act or omission was taken in good faith, was reasonably believed by the applicable Indemnitee to be in the best interest of the Company and within the scope of authority granted to such member or applicable Indemnitee, and in the case of a Member or related Indemnitee (other than in its capacity as Property Manager), was not attributable to such Indemnitee’s fraud, bad faith, willful misconduct or gross negligence, or in the case of Property Manager, was not attributable to Property Manager’s or related Indemnitee’s fraud, bad faith, willful misconduct or gross negligence. Any indemnity under this Section 10.02 shall be paid solely out of and to the extent of Company Property and shall not be a personal obligation of any Member and in no event will any Member be required, or permitted without the consent of all of the Members, to contribute additional capital under Section 4.02 or Section 4.03 to enable the Company to satisfy any obligation under this Section 10.02. All judgments against the Company and the Members, or any one or more thereof, wherein such Member (or Members) is entitled to indemnification, must first be satisfied from Company Property before the Members shall be responsible therefor.

 

  

(b)          The Company and the other Members shall be indemnified and held harmless by each Member from and against any and all claims, demands, liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or attributable to (i) any act performed by or on behalf of any such Member (including, in the case of Operating Member, acts performed as Managing Member or by Property Manager, if Property Manager is an Affiliate of Operating Member), its managing member or, if Property Manager is an Affiliate of such Member, Property Manager which is not performed in good faith or is not reasonably believed by such Member, its managing member or, if Property Manager is an Affiliate of such Member, Property Manager to be in the best interest of the Company and within the scope of authority conferred upon such Member or its managing member under this Agreement or, with respect to Property Manager, the Property Management Agreement, (ii) the fraud, bad faith, willful misconduct or gross negligence of such Member, its managing member or, if Property Manager is an Affiliate of such Member, Property Manager, (iii) the breach by the Company of any of its representations and warranties made under any purchase, loan or other agreement entered into in connection with the acquisition of Company Property, which breach was the result of information or matters relating to such Member or, if Property Manager is an Affiliate of such Member, Property Manager or (iv) any denial of an insurance claim by the Company based on an intentional misstatement or intentional withholding of information by any Member or, if Property Manager is an Affiliate of such Member, Property Manager.

 

(c)          The provisions of this Section 10.02 shall survive for a period of four (4) years from the date of dissolution of the Company, provided that, if at the end of such period there are any actions, proceedings or investigations then pending, any Indemnitee may so notify the Company and the other Members at such time (which notice shall include a brief description of each such action, proceeding or investigation and the liabilities asserted therein) and the provisions of this Section 10.02 shall survive with respect to each such action, proceeding or investigation set forth in such notice (or any related action, proceeding or investigation based upon the same or similar claim) until such date that such action, proceeding or investigation is finally resolved.

 

(d)          Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Company or any Member under this Section 10.02 shall (i) be in addition to any liability which the Company or such Member may otherwise have and (ii) inure to the benefit of such Indemnitee, its Affiliates and their respective members, managers, directors, officers, employees, agents and Affiliates and any successors, assigns, heirs and personal representatives of such Persons.

 

  

ARTICLE XI
DISSOLUTION AND TERMINATION

 

11.01

Dissolution

 

The Company shall be dissolved and its business wound up upon the earliest to occur of any of the following events, unless the majority-in-interest of the remaining Members vote to continue the life of the Company upon the occurrence of such an event:

 

(a)          Three (3) years after the sale, condemnation or other disposition of all Company Property and the receipt of all consideration therefor;

 

(b)          December 31, 2064;

 

(c)          At any time on or after the second anniversary of the Effective Date, the written determination of MN Retail to terminate the Company; provided, that the foregoing shall not affect the parties’ rights under Section 7.05(c), and any disposition by the Company in connection with a liquidation under this paragraph (c) shall be subject to the ROFO Opportunity elections provided in Section 7.05(c); or

 

(d)          The resignation, expulsion, bankruptcy or dissolution of any Member (which shall not include the occurrence of such an event with respect to any Member’s underlying members or partners which does not cause such an event to occur with respect to the Member itself) or the occurrence of any other event that terminates the continued membership of any Member in the Company, unless, within ninety (90) days after such event, each of the remaining Members elects in writing (i) to continue the business of the Company and (ii) if at such time there exists only one remaining Member, effective as of the date of such event, to admit at least one additional Member to the Company.

 

Without limitation on, but subject to, the other provisions hereof, the assignment of all or any part of a Member’s Interest permitted hereunder will not result in the dissolution of the Company. Except as otherwise specifically provided in this Agreement, each Member agrees that, without the consent of the other Members, any Member may not withdraw from or cause a voluntary dissolution of the Company. In the event any Member withdraws from or causes a voluntary dissolution of the Company in contravention of this Agreement, such withdrawal or the causing of a voluntary dissolution shall not affect such Member’s liability for obligations of the Company.

 

11.02

Termination

 

In all cases of dissolution of the Company, the business of the Company shall be wound up and the Company terminated as promptly as practicable thereafter, and each of the following shall be accomplished:

 

  

(a)          The Liquidating Member shall cause to be prepared a statement setting forth the assets and liabilities of the Company as of the date of dissolution, a copy of which statement shall be furnished to all of the Members.

 

(b)          Company Property shall be liquidated by the Liquidating Member as promptly as possible, but in an orderly and businesslike and commercially reasonable manner and subject to the provisions of the Operating Plan then in effect or a liquidating plan approved by MN Retail. The Liquidating Member may distribute Company Property in kind only with the consent of all of the Members.

 

(c)          The proceeds of sale and all other assets of the Company shall be applied and distributed as follows and in the following order of priority:

 

(i)          To the payment of (A) the debts and liabilities of the Company (including any outstanding amounts due on any indebtedness encumbering Company Property, or any part thereof and any Category A Shortfall Loans and Category B Shortfall Loans) and (B) the expenses of liquidation.

 

(ii)         To the setting up of any reserves which the Liquidating Member and MN Retail shall determine to be reasonably necessary for contingent, unliquidated or unforeseen liabilities or obligations of the Company or any Member arising out of or in connection with the Company. Such reserves may, in the discretion of the Liquidating Member, be paid over to a national bank or national title company selected by it and authorized to conduct business as an escrow agent to be held by such bank or title company as escrow agent for the purposes of disbursing such reserves to satisfy the liabilities and obligations described above, and at the expiration of such period as the Liquidating Member may reasonably deem advisable, distributing any remaining balance as provided in Section 11.02(c)(iii); provided, however, that, to the extent that it shall have been necessary, by reason of applicable law or regulation, to create any reserves prior to any and all distributions which would otherwise have been made under Section 11.02(c)(i) and, by reason thereof, a distribution under Section 11.02(c)(i) has not been made, then any balance remaining shall first be distributed pursuant to Section 11.02(c)(i).

 

(iii)        The balance, if any, to the Members in accordance with Section 6.07.

 

11.03

Liquidating Member

 

The Liquidating Member is hereby irrevocably appointed as the true and lawful attorney in the name, place and stead of each of the Members, such appointment being coupled with an interest, to make, execute, sign, acknowledge and file with respect to the Company all papers which shall be necessary or desirable to effect the dissolution and termination of the Company in accordance with the provisions of this Article XI. Notwithstanding the foregoing, each Member, upon the request of the Liquidating Member or MN Retail, shall promptly execute, acknowledge and deliver all such documents, certificates and other instruments as the Liquidating Member or MN Retail shall reasonably request to effectuate the proper dissolution and termination of the Company, including the winding up of the business of the Company.

 

  

11.04

Claims of the Members

 

Members and former Members shall look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members and former Members shall have no recourse against the Company or any other Member.

 

ARTICLE XII
DEFAULT BY MEMBER

 

12.01

Events of Default

 

If a Member commits a material violation or breach of any of the provisions of this Agreement, or if Property Manager commits a material violation or breach of any of the provisions of the Property Management Agreement which is not cured (including, without limitation, by the breaching Member reimbursing the Company for the resulting material damage or loss) within a Reasonable Period, such Member (Operating Member in the case of a violation or breach by Property Manager) shall have committed an “Event of Default”. A failure to make any Additional Capital Contribution shall not constitute an Event of Default.

 

12.02

Effect of Event of Default

 

Upon the occurrence of an Event of Default by any Member, Operating Member (if the defaulting Member is MN Retail) or MN Retail (if the defaulting Member is Operating Member, TRS or REIT) shall have the right, at any time within one year from the date of such Event of Default and upon giving the defaulting Member ten (10) calendar days written notice of such election (and provided such Event of Default is continuing through the end of such ten (10) day period) to take any of the following actions:

 

(a)          Dissolve the Company;

 

(b)          If Operating Member is the defaulting Member, terminate Operating Member as Managing Member and as Property Manager under the Property Management Agreement; and

 

(c)          Pursue any other right or remedy available at law or in equity.

 

  

ARTICLE XIII
REPRESENTATIONS, WARRANTIES AND COVENANTS

 

13.01

Representations and Warranties of the Members

 

(a)          Each Member represents and warrants to the other Member(s) as follows:

 

(i)          It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.

 

(ii)         This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms.

 

(iii)        No consents or approvals are required from any Governmental Authority or other person or entity for the Member to enter into this Agreement. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.

 

(iv)        The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.

 

(v)         No Member has retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.

 

(vi)        It understands that (A) an investment in the Company involves substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.

 

  

(b)          In addition to the representations and warranties set forth above, Operating Member represents, warrants and covenants to MN Retail as follows:

 

(i)          Operating Member is a limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on August 7, 2015, and that certain limited liability company operating agreement dated September 4, 2015 (collectively, the “Operating Member Organizational Documents”), and a true and correct copy of the Operating Member Organizational Documents have been provided to counsel for MN Retail.

 

(ii)         The Operating Member Organizational Documents have not been terminated nor modified or amended and continue to be in full force and effect.

 

(iii)        No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for Operating Member to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.

 

(iv)        The offer and sale of interests in Operating Member has been undertaken in full compliance with all applicable federal and state securities laws and no interests in Operating Member have been offered or sold to any person who was not at the time of such offer or sale an “accredited investor” as defined in Section 2(15) of the Securities Act of 1933 and Rule 501 promulgated thereunder and under the securities laws of various states.

 

(v)         The Key Persons own, directly or indirectly, 52% of the Operating Member and have the power to direct the management and policies of Operating Member.

 

(vi)        Operating Member hereby covenants and agrees not to amend or permit the amendment of the management and control provisions of the Operating Member Organizational Documents without the prior written consent of MN Retail.

 

(vii)       The issuance of all ownership interests in Operating Member was accomplished in accordance with all laws, including, without limitation, all securities laws.

 

(viii)      It is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act (the “Patriot Act”), and other authorizing statutes, executive orders and regulations administered by OFAC applicable to Operating Member, and related Securities and Exchange Commission, SRO or other agency rules and regulations applicable to Operating Member, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance.

 

  

(ix)         Neither: (a) Operating Member, any Affiliate of Operating Member nor any Person controlled by Operating Member; nor (b) to the best of knowledge of Operating Member, after making due inquiry, any Person who owns a controlling interest in or otherwise controls Operating Member; nor (c) to the best of knowledge of Operating Member, if Operating Member is a privately held entity, any Person otherwise having a direct or indirect beneficial interest (other than with respect to an interest in a publicly traded entity) in Operating Member; nor (d) any Person for whom Operating Member is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or entity named on an OFAC List, nor is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC.

 

(x)          Unless disclosed in writing to MN Retail on the date hereof, it is not a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, that it is not controlled by a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, and that, to the best of Operating Member’s knowledge, after making due inquiry, none of the direct or indirect owners of Operating Member (other than any owner(s) of any interest(s) in a publicly traded entity) is a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure.

 

(xi)         Subject to any confidentiality obligations existing as of the date of any request by MN Retail, Operating Member agrees that, upon receiving a request from MN Retail, Operating Member shall provide information reasonably required by MN Retail (a) that indicates that the representations, warranties and covenants of Operating Member set forth in this Section 13.01(b) are true, and (b) to permit MN Retail to comply with its obligations under all applicable anti-money laundering and anti-terrorist laws, regulations and executive orders. Operating Member consents to the disclosure to United States regulators and law enforcement authorities by MN Retail and its Affiliates of such information about Operating Member that MN Retail reasonably deems necessary or appropriate to comply with applicable anti-money laundering and anti-terrorist laws, regulations, and executive orders.

 

(xii)        Operating Member agrees that as a condition of any Transfer of any of its direct or indirect interest in the Company, MN Retail has the right to require full compliance with these representations, warranties and covenants, to the satisfaction of MN Retail, with respect to any transferee and any Person who owns or otherwise controls the transferee.

 

(xiii)       Operating Member shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless MN Retail and the Company, and each general or limited partner of MN Retail or any Affiliate, shareholder, member or other holder of any equity interest in MN Retail, or any manager, officer or director of the foregoing (collectively, the “MN Retail and/or Company Indemnitees”), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such MN Retail and/or Company Indemnitees may become subject in connection with any breach of these representations, warranties and covenants that causes a breach or violation or failed condition under any documents by which the Company is bound (such as loan documents).

 

  

(xiv)      Operating Member acknowledges and agrees that if, following its investment in the Company, MN Retail reasonably believes that Operating Member has breached its representations, warranties or covenants set forth herein, or that action is otherwise required by law or regulation, MN Retail has the right or may be obligated to freeze or block the investment, to prohibit additional investments, to segregate the assets constituting the investment in accordance with applicable OFAC laws and regulations, to decline any redemption or Transfer requests, to redeem Operating Member’s investment, and/or to report such action to government authorities. Operating Member further acknowledges that it will have no claim against the Company and/or MN Retail or its Affiliates for any form of damages as a result of any of the foregoing actions.

 

(xv)       Intentionally Omitted.

 

(xvi)      Operating Member is a “United States person” for United States federal income tax purposes.

 

(xvii)     To the best of Operating Member’s knowledge, Operating Member has not knowingly or intentionally withheld or knowingly or intentionally failed to deliver to MN Retail any material written documents in its possession or control relating to the Company Property.

 

(xviii)    As of the Effective Date, Operating Member has not engaged in any business other than, and has no obligations other than, its obligations under this Agreement.

 

(xix)       To the best of Operating Member’s knowledge, Seller has not knowingly or intentionally made any material misrepresentations in the representations and warranties of Seller set forth in the Purchase Agreement.

 

For purposes of the representations, warranties and covenants set forth in this Section 13.01(b), the term “knowledge” includes the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. Operating Member represents and warrants to MN Retail that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the person affiliated with Operating Member with the most knowledge regarding the representations, warranties and covenants set forth in this Section 13.01(a) and this Section 13.01(b).

 

(c)          In addition to the representations and warranties set forth above, TRS represents, warrants and covenants to MN Retail as follows:

 

(i)          TRS is a Delaware limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on September 22, 2015, and that certain limited liability company agreement dated September 24, 2015 (collectively, the “TRS Organizational Documents”), and a true and correct copy of the TRS Organizational Documents have been provided to counsel for MN Retail.

 

(ii)         The TRS Organizational Documents have not been terminated nor modified or amended and continue to be in full force and effect.

 

  

(iii)        No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for TRS to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.

 

(iv)        The offer and sale of interests in TRS has been undertaken in full compliance with all applicable federal and state securities laws; except as may be disclosed by the issues raised in the ongoing class action more particularly described on Schedule D attached hereto.

 

(v)         It is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act (the “Patriot Act”), and other authorizing statutes, executive orders and regulations administered by OFAC applicable to TRS, and related Securities and Exchange Commission, SRO or other agency rules and regulations applicable to TRS, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance.

 

(vi)        Neither: (A) TRS, any Affiliate of TRS nor any Person controlled by TRS; nor (B) to the best of knowledge of TRS, after making due inquiry, any Person who owns a controlling interest in or otherwise controls TRS; nor (C) to the best of knowledge of TRS, if TRS is a privately held entity, any Person otherwise having a direct or indirect beneficial interest (other than with respect to an interest in a publicly traded entity) in TRS; nor (D) any Person for whom TRS is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or entity named on an OFAC List, nor is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC.

 

(vii)       Unless disclosed in writing to MN Retail on the date hereof, it is not a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, that it is not controlled by a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, and that, to the best of TRS’ knowledge, after making due inquiry, none of the direct or indirect owners of TRS (other than any owner(s) of any interest(s) in a publicly traded entity) is a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure.

 

(viii)      Subject to any confidentiality obligations existing as of the date of any request by MN Retail, TRS agrees that, upon receiving a request from MN Retail, TRS shall provide information reasonably required by MN Retail (A) that indicates that the representations, warranties and covenants of TRS set forth in this Section 13.01(c) are true, and (B) to permit MN Retail to comply with its obligations under all applicable anti-money laundering and anti-terrorist laws, regulations and executive orders. TRS consents to the disclosure to United States regulators and law enforcement authorities by MN Retail and its Affiliates of such information about TRS that MN Retail reasonably deems necessary or appropriate to comply with applicable anti-money laundering and anti-terrorist laws, regulations, and executive orders.

 

  

(ix)         TRS agrees that as a condition of any Transfer of any of its direct or indirect interest in the Company, MN Retail has the right to require full compliance with these representations, warranties and covenants, to the satisfaction of MN Retail, with respect to any transferee and any Person who owns or otherwise controls the transferee.

 

(x)          TRS shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless MN Retail and the Company, and each general or limited partner of MN Retail or any Affiliate, shareholder, member or other holder of any equity interest in MN Retail, or any manager, officer or director of the foregoing (collectively, the “MN Retail and/or Company Indemnitees”), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such MN Retail and/or Company Indemnitees may become subject in connection with any breach of these representations, warranties and covenants that causes a breach or violation or failed condition under any documents by which the Company is bound (such as loan documents).

 

(xi)         TRS acknowledges and agrees that if, following its investment in the Company, MN Retail reasonably believes that TRS has breached its representations, warranties or covenants set forth herein, or that action is otherwise required by law or regulation, MN Retail has the right or may be obligated to freeze or block the investment, to prohibit additional investments, to segregate the assets constituting the investment in accordance with applicable OFAC laws and regulations, to decline any redemption or Transfer requests, to redeem TRS’ investment, and/or to report such action to government authorities. TRS further acknowledges that it will have no claim against the Company and/or MN Retail or its Affiliates for any form of damages as a result of any of the foregoing actions.

 

(xii)        TRS is a “United States person” for United States federal income tax purposes.

 

(xiii)       To the best of TRS’ knowledge, TRS has not knowingly or intentionally withheld or knowingly or intentionally failed to deliver to MN Retail all material written documents in its possession or control relating to the Company Property.

 

For purposes of the representations, warranties and covenants set forth in this Section 13.01(c), the term “knowledge” includes the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. TRS represents and warrants to MN Retail that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the person affiliated with TRS with the most knowledge regarding the representations, warranties and covenants set forth in this Section 13.01(a) and this Section 13.01(c).

 

  

(d)          In addition to the representations and warranties set forth above, REIT represents, warrants and covenants to MN Retail as follows:

 

(i)          REIT is a Delaware limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on August 7, 2015, and that certain limited liability company agreement dated September 4, 2015 (collectively, the “REIT Organizational Documents”), and a true and correct copy of the REIT Organizational Documents have been provided to counsel for MN Retail.

 

(ii)         The REIT Organizational Documents have not been terminated nor modified or amended and continue to be in full force and effect.

 

(iii)        No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for REIT to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.

 

(iv)        The offer and sale of interests in REIT has been undertaken in full compliance with all applicable federal and state securities laws; except as may be disclosed by the issues raised in the ongoing class action more particularly described on Schedule D attached hereto.

 

(v)         It is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act (the “Patriot Act”), and other authorizing statutes, executive orders and regulations administered by OFAC applicable to TRS, and related Securities and Exchange Commission, SRO or other agency rules and regulations applicable to TRS, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance.

 

(vi)        Neither: (A) REIT, any Affiliate of REIT nor any Person controlled by REIT; nor (B) to the best of knowledge of REIT, after making due inquiry, any Person who owns a controlling interest in or otherwise controls REIT; nor (C) to the best of knowledge of REIT , if REIT is a privately held entity, any Person otherwise having a direct or indirect beneficial interest (other than with respect to an interest in a publicly traded entity) in REIT; nor (D) any Person for whom REIT is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or entity named on an OFAC List, nor is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC.

 

(vii)       Unless disclosed in writing to MN Retail on the date hereof, it is not a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, that it is not controlled by a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, and that, to the best of REIT’s knowledge, after making due inquiry, none of the direct or indirect owners of REIT (other than any owner(s) of any interest(s) in a publicly traded entity) is a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure.

 

  

(viii)      Subject to any confidentiality obligations existing as of the date of any request by MN Retail, REIT agrees that, upon receiving a request from MN Retail, REIT shall provide information reasonably required by MN Retail (A) that indicates that the representations, warranties and covenants of REIT set forth in this Section 13.01(d) are true, and (B) to permit MN Retail to comply with its obligations under all applicable anti-money laundering and anti-terrorist laws, regulations and executive orders. REIT consents to the disclosure to United States regulators and law enforcement authorities by MN Retail and its Affiliates of such information about REIT that MN Retail reasonably deems necessary or appropriate to comply with applicable anti-money laundering and anti-terrorist laws, regulations, and executive orders.

 

(ix)         REIT agrees that as a condition of any Transfer of any of its direct or indirect interest in the Company, MN Retail has the right to require full compliance with these representations, warranties and covenants, to the satisfaction of MN Retail, with respect to any transferee and any Person who owns or otherwise controls the transferee.

 

(x)          REIT shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless MN Retail and the Company, and each general or limited partner of MN Retail or any Affiliate, shareholder, member or other holder of any equity interest in MN Retail, or any manager, officer or director of the foregoing (collectively, the “MN Retail and/or Company Indemnitees”), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such MN Retail and/or Company Indemnitees may become subject in connection with any breach of these representations, warranties and covenants that causes a breach or violation or failed condition under any documents by which the Company is bound (such as loan documents).

 

(xi)         REIT acknowledges and agrees that if, following its investment in the Company, MN Retail reasonably believes that REIT has breached its representations, warranties or covenants set forth herein, or that action is otherwise required by law or regulation, MN Retail has the right or may be obligated to freeze or block the investment, to prohibit additional investments, to segregate the assets constituting the investment in accordance with applicable OFAC laws and regulations, to decline any redemption or Transfer requests, to redeem REIT’s investment, and/or to report such action to government authorities. REIT further acknowledges that it will have no claim against the Company and/or MN Retail or its Affiliates for any form of damages as a result of any of the foregoing actions.

 

(xii)        REIT is a “United States person” for United States federal income tax purposes.

 

  

(xiii)       To the best of REIT’s knowledge, REIT has not knowingly or intentionally withheld or knowingly or intentionally failed to deliver to MN Retail all material written documents in its possession or control relating to the Company Property.

 

(xiv)      To the best of REIT's actual knowledge, Seller has not knowingly or intentionally made any material misrepresentation in the representations or warranties of Seller set forth in the Purchase Agreement.

 

For purposes of the representations, warranties and covenants set forth in this Section 13.01(d), the term “knowledge” includes the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. REIT represents and warrants to MN Retail that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the person affiliated with REIT with the most knowledge regarding the representations, warranties and covenants set forth in this Section 13.01(a) and this Section 13.01(d).

 

(e)          In addition to the representations and warranties set forth above, MN Retail represents, warrants and covenants to Operating Member as follows:

 

(i)          MN Retail is a limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on June 25, 2015, and that certain limited liability company agreement of MN Retail in effect as of the Effective Date (collectively, the “MN Retail Organizational Documents”).

 

(ii)         The MN Retail Organizational Documents have not been terminated and continue to be in full force and effect.

 

(iii)        No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for MN Retail to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.

 

(iv)        The offer and sale of interests in MN Retail has been undertaken in full compliance with all applicable federal and state securities laws and no interests in MN Retail have been offered or sold to any person who was not at the time of such offer or sale an “accredited investor” as defined in Section 2(15) of the Securities Act of 1933 and Rule 501 promulgated thereunder and under the securities laws of various states.

 

(v)         To the best of MN Retail’s knowledge, MN Retail has not knowingly or intentionally withheld or knowingly or intentionally failed to deliver to Operating Member any material written documents in its possession or control relating to the Company Property.

 

(vi)        To the best of MN Retail’s actual knowledge, Seller has not knowingly or intentionally made any material misrepresentations in the representations and warranties of Seller set forth in the Purchase Agreement.

 

(f)          (i)          Each Member acknowledges and agrees that, without TRS’ consent, the Company shall not take, nor shall such Members cause the Company to take, any actions that would (A) cause TRS or its Affiliates to be disqualified as a REIT under the Code or (B) generate any income other than “rents from real property” and “gains from the sale of real property which is not property described in Section 1221(a)(i) of the Code.” Each Member shall be responsible for any action taken by it in violation of the foregoing and in no event will the Company be responsible for the actions of any Member.

 

  

(ii)         A Member may request confirmation from TRS, at any time and from time to time, that a proposed action to be taken by a Member or the Company will not violate the terms of subsection (i) above. If TRS either (A) confirms that such action will not violate the terms of subsection (i) above or (B) fails to respond to such request within ten (10) days, then the Member(s) and the Company may pursue such action without any future liability under subsection (i) above if such action is later determined to have violated the terms of subsection (i) above.

 

(g)          Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of Operating Member and/or the Company or any other Member.

 

ARTICLE XIV
MISCELLANEOUS

 

14.01

Further Assurances

 

Each Member agrees to execute, acknowledge, deliver, file, record and publish such further instruments and documents, and do all such other acts and things as may be required by law, or as may be required to carry out the intent and purposes of this Agreement.

 

14.02

Notices

 

All notices, demands, consents, approvals, requests or other communications which any of the parties to this Agreement may desire or be required to give hereunder (collectively, “Notices”) shall be in writing and shall be given by (a) personal delivery, (b) facsimile or electronic mail transmission, but only to the extent delivery has been confirmed by all recipients by a return facsimile or electronic mail transmission or (c) a reputable overnight courier service, fees prepaid, addressed as follows:

 

If to MN Retail:

c/o Oaktree Real Estate Group ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Facsimile No.: 213/830-6392

 

  

If to Operating Member, to:	c/o GLB SGO MN, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Facsimile No. 650/343-9690
with a copy to:	c/o GLB SGO MN, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: General Counsel Facsimile No. 650/343-9690
If to TRS, to:	c/o SRT TRS, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Facsimile No. 650/343-9690
with a copy to:	c/o SRT TRS, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: General Counsel Facsimile No. 650/343-9690
If to REIT, to:	c/o SRT SGO MN, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Facsimile No. 650/343-9690
with a copy to:	c/o SRT SGO MN, LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇ Attention: General Counsel Facsimile No. 650/343-9690

 

Any Member may designate another addressee (and/or change its address) for Notices hereunder by a Notice given pursuant to this Section 14.02. A Notice sent in compliance with the provisions of this Section 14.02 shall be deemed given on the date of receipt.

 

  

14.03

Governing Law

 

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed wholly within that State.

 

14.04

Attorney Fees

 

If the Company or any Member obtains a judgment against any other Member by reason of the breach of this Agreement or the failure to comply with the terms hereof, reasonable attorneys’ fees and costs as fixed by the court shall be included in such judgment.

 

14.05

Captions

 

All titles or captions contained in this Agreement are inserted only 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 in this Agreement.

 

14.06

Pronouns

 

All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, and neuter, singular and plural, as the identity of the party or parties may require.

 

14.07

Successors and Assigns

 

This Agreement shall be binding upon the parties hereto and their respective executors, administrators, legal representatives, heirs, successors and assigns, and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective executors, administrators, legal representatives, heirs, successors and assigns.

 

14.08

Extension Not a Waiver

 

No delay or omission in the exercise of any power, remedy or right herein provided or otherwise available to a Member or the Company shall impair or affect the right of such Member or the Company thereafter to exercise the same. Any extension of time or other indulgence granted to a member hereunder shall not otherwise alter or affect any power, remedy or right of any other Member or of the Company, or the obligations of the Member to whom such extension or indulgence is granted.

 

14.09

Creditors Not Benefited

 

Nothing contained in this Agreement is intended or shall be deemed to benefit any creditor of the Company or any Member, and no creditor of the Company shall be entitled to require the Company or the Members to solicit or accept any Additional Capital Contribution for the Company or to enforce any right which the Company or any Member may have against any Member under this Agreement or otherwise or under any guaranty.

 

  

14.10

Recalculation of Interest

 

If any applicable law is ever judicially interpreted so as to deem any distribution, contribution, payment or other amount received by any Member or the Company under this Agreement as interest and so as to render any such amount in excess of the maximum rate or amount of interest permitted by applicable law, then it is the express intent of the Members and the Company that all amounts in excess of the highest lawful rate or amount theretofore collected be credited against any other distributions, contributions, payments or other amounts to be paid by the recipient of the excess amount or refunded to the appropriate Person, and the provisions of this Agreement immediately be deemed reformed, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the payment of the fullest amount otherwise required hereunder. All sums paid or agreed to be paid that are judicially determined to be interest shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the term of such obligation so that the rate or amount of interest on account of such obligation does not exceed the maximum rate or amount of interest permitted under applicable law.

 

14.11

Severability

 

In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and other application thereof shall not in any way be affected or impaired thereby.

 

14.12

Entire Agreement

 

This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein are terminated. Amendments, variations, modifications or changes herein may be made effective and binding upon the Members by, and only by, the setting forth of same in a document duly executed by each Member, and any alleged amendment, variation, modification or change herein which is not so documented shall not be effective as to any Member.

 

14.13

Publicity

 

The parties agree that no Member shall issue any press release or otherwise publicize or disclose the terms of this Agreement or the proposed terms of any acquisition of the Company Property, without the consent of each of the other Members, except as such disclosure may be made in the course of normal reporting practices by any Member to its members, shareholders or partners or as otherwise required by law.

 

14.14

Counterparts

 

This Agreement may be executed in multiple counterparts, each of which shall be an original but all of which together shall constitute but one and the same agreement.

 

  

14.15

Confidentiality

 

(a)          Each Operating Member, TRS and REIT represents that it has not and agrees that it will not and will direct its shareholders, partners, directors, officers, agents, advisors and Affiliates not to, disclose to any Person the terms of this Agreement, the identity of any person with whom the Company may be holding discussions with respect to any investment, acquisition, disposition or other transaction, or any other business, financial or other information relating directly to the conduct of the business and affairs of the Company or the relative or absolute rights or interests of any of the Members that is not already publicly available or that has not been publicly disclosed by or pursuant to authorization by MN Retail (collectively, the “Confidential Information”), or confirm any statement made by third Persons regarding Confidential Information; provided, however, that Operating Member, TRS and REIT (or either of their Affiliates) may disclose such Confidential Information if required by law (it being specifically understood and agreed that anything set forth in a registration statement or any other document filed pursuant to law will be deemed required by law), if necessary for it to perform any of its duties or obligations hereunder or in any management agreement to which it is a party covering any Company Property, and to its attorneys and advisors who agree to maintain a similar confidence.

 

(b)          Subject to the provisions of Section 14.15(a), Operating Member, TRS and REIT each agree not to disclose any Confidential Information to any Person (other than a Person (including without limitation an attorney or advisor) agreeing to maintain all Confidential Information in strict confidence or a judge, magistrate or referee in any action, suit or proceeding relating to or arising out of this Agreement or otherwise), and to keep confidential all documents (including, without limitation, responses to discovery requests) containing any Confidential Information. Each Operating Member, TRS and REIT hereby consents in advance to any motion for any protective order brought by MN Retail represented as being intended by MN Retail to implement the purposes of this Section 14.15, provided that, if Operating Member, TRS and REIT receives a request to disclose any Confidential Information under the terms of a valid and effective order issued by a court or governmental agency and the order was not sought by or on behalf of or consented to by Operating Member, TRS and REIT, as applicable, then Operating Member, TRS or REIT may disclose the Confidential Information to the extent required if Operating Member, TRS and REIT, as applicable, as promptly as practicable (i) notifies MN Retail of the existence, terms and circumstances of the order, (ii) consults in good faith with MN Retail on the advisability of taking legally available steps to resist or to narrow the order, and (iii) if disclosure of the Confidential Information is required, exercises its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the portion of the disclosed Confidential Information that MN Retail designates. The cost (including, without limitation, attorneys’ fees and expenses) of obtaining a protective order covering Confidential Information designated by MN Retail will be borne by the Company.

 

(c)          The covenants contained in this Section 14.15 will survive the Transfer of the Interest of any Member and the termination of the Company.

 

  

14.16

Venue

 

Each of the Members consents to the jurisdiction of any court in Wilmington, Delaware for any action arising out of matters related to this Agreement. Each of the Members waives the right to commence an action in connection with this Agreement in any court outside of Wilmington, Delaware.

 

14.17

Waiver of Jury Trial

 

EACH OF THE MEMBERS HEREBY WAIVES TRIAL BY JURY IN ANY ACTION ARISING OUT OF MATTERS RELATED TO THIS AGREEMENT, WHICH WAIVER IS INFORMED AND VOLUNTARY.

 

14.18

Attorney Representation

 

Each Member hereby acknowledges and agrees that: (i) in the negotiation and preparation of this Agreement and with respect to the matters contemplated hereby MN Retail has been independently represented by the law firm of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ Kalt”), Operating Member, TRS and REIT have been independently represented by the law firm of ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. (“▇▇▇▇▇▇ ▇▇▇▇▇”); (ii) ▇▇▇▇▇▇ Kalt has represented both MN Retail and its Affiliates in other related and unrelated matters; (iii) each Member hereby waives any potential conflict of interest resulting from ▇▇▇▇▇▇ Kalt’s representation of MN Retail and MN Retail’s Affiliates with respect to this Agreement and the Company with respect to other related and unrelated matters; (iv) Operating Member, TRS and REIT agree and acknowledge that in the event of a default on the part of Operating Member, TRS and/or REIT under this Agreement, ▇▇▇▇▇▇ Kalt shall be free to represent the Company, MN Retail and MN Retail’s Affiliates in the enforcement of this Agreement; and (v) MN Retail agrees and acknowledges that in the event of a default on the part of MN Retail under this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇ shall be free to represent Operating Member, TRS and/or REIT in the enforcement of this Agreement.

 

14.19

Cooperation

 

In the event that MN Retail in good faith proposes a restructuring of the Company in order to avoid the imposition of a corporate tax on any income of the Company or to minimize the effects of any UBTI on MN Retail and/or its direct or indirect partners, members or shareholders, Operating Member shall cooperate with and consent to such restructuring, provided same does not materially adversely affect Operating Member, TRS or REIT.

 

[SIGNATURES ON FOLLOWING PAGES]

 

  

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth in the introductory paragraph hereof.

 

	Operating Member:
	GLB SGO MN, LLC,
	a Delaware limited liability company
	By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President and Chief Executive Officer

 

Signatures Continue on Next Page

  

  

	TRS:
	SRT TRS, LLC,
	A Delaware limited liability company
	By:	STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.,
		a Delaware limited partnership,
		its sole member
		By:	STRATEGIC REALTY TRUST, INC.,
			a Maryland corporation,
			its general partner
			By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
			Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
			Title:	President and Chief Executive Officer

 

Signatures Continue on Next Page

 

  

	REIT:
	SRT SGO MN, LLC,
	A Delaware limited liability company
	By:	STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.,
		a Delaware limited partnership,
		its sole member
		By:	STRATEGIC REALTY TRUST, INC.,
			a Maryland corporation,
			its general partner
			By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
			Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
			Title:	President and Chief Executive Officer

 

Signatures Continue on Next Page

  

  

	MN Retail:
	MN RETAIL GRAND AVENUE PARTNERS, LLC
	a Delaware limited liability company
	By:	/s/ ▇▇▇▇▇▇ Gulchard
	Name:	▇▇▇▇▇▇ Gulchard
	Its:  Authorized Signatory
	By:	/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇ ▇▇▇▇▇▇▇
	Its:  Authorized Signatory

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

Approved Professionals

 

1.          Accounting Professional: Deloitte Consulting LLP

 

2.          Auditor: ▇▇▇▇ ▇▇▇▇▇

 

 

EXHIBIT C

 

EXAMPLE OF OPERATION OF CALCULATION SET FORTH IN SECTION 4.03(c)

 

By way of example only, and without limitation, assume that on the Effective Date, the Category B Members made Category B Capital Contributions aggregating $1,000,000, of which $800,000 was made by MN Retail, with a Category B Percentage Interest of 80.0%, $100,000 was made by REIT with a Percentage Interest of 10%, and $100,000 was made by Operating Member, with a Category B Category B Percentage Interest of 10%. Subsequent to the Effective Date, the Managing Member calls for Category B Additional Capital Contributions of $500,000 in the aggregate (the “Additional Capital Call”), of which MN Retail is responsible for $400,000, REIT is responsible for $50,000 and Operating Member is responsible for $50,000. MN Retail and Operating Member each make their shares of the Additional Capital Call, but REIT does not, and MN Retail and Operating Member each (based on their relative Category B Percentage Interests)* also make the $50,000 contribution on behalf of REIT. Such $50,000 is a “Substituted Capital Contribution”, and after the Additional Capital Call is funded, the Category B Members’ Category B Percentage Interests shall have been adjusted as follows, in accordance with Section 4.03(c):

 

1.          MN Retail: The adjusted Category B Percentage Interest of MN Retail, in the aggregate, is calculated by dividing (1) the positive difference, if any, between (a) the sum of (i) one hundred percent (100%) of the aggregate Category B Capital Contributions (excluding Substituted Capital Contributions) then or theretofore made by MN Retail to the Company ($1,200,000), plus (ii) 200% of the Substituted Capital Contributions then or theretofore made by MN Retail to the Company ($44,444.44), minus (b) the Category B Excess Amounts attributable to the Substituted Capital Contributions then or theretofore made by REIT to the Company ($0), by (2) one hundred percent (100%) of the aggregate Category B Capital Contributions (including without limitation Substituted Capital Contributions) then or theretofore made by all of the Category B Members to the Company ($1,500,000). This results in a Category B Percentage Interest for MN Retail of (i) the sum of $1,200,000 plus $88,888.88, divided by (ii) $1,500,000 = 85.93%.

 

2.          Operating Member: The adjusted Category B Percentage Interest of Operating Member, in the aggregate, is calculated by dividing (1) the positive difference, if any, between (a) the sum of (i) one hundred percent (100%) of the aggregate Category B Capital Contributions (excluding Substituted Capital Contributions) then or theretofore made by Operating Member to the Company ($150,000), plus (ii) 200% of the Substituted Capital Contributions then or theretofore made by Operating Member to the Company ($5,555.56), minus (b) the Category B Excess Amounts attributable to the Substituted Capital Contributions then or theretofore made by REIT to the Company ($0), by (2) one hundred percent (100%) of the aggregate Category B Capital Contributions (including without limitation Substituted Capital Contributions) then or theretofore made by all of the Category B Members to the Company ($1,500,000). This results in a Category B Percentage Interest for Operating Member of (i) the sum of $150,000 plus $11,111.12, divided by (ii) $1,500,000 = 10.74%.

 

 

3.          REIT: REIT’s adjusted Category B Percentage Interest is calculated by dividing (1) the positive difference, if any, between (a) the sum of (i) one hundred percent (100%) of the aggregate Category B Capital Contributions (excluding Substituted Capital Contributions) then or theretofore made by REIT to the Company ($100,000), plus (ii) 200% of the Substituted Capital Contributions then or theretofore made by REIT to the Company ($0), minus (b) the Category B Excess Amounts attributable to the Substituted Capital Contributions then or theretofore made by MN Retail and Operating Member to the Company ($44,444.44 and ($5,555.56, respectively), by (2) one hundred percent (100%) of the aggregate Category B Capital Contributions (including without limitation Substituted Capital Contributions) then or theretofore made by all of the Category B Members to the Company ($1,500,000). This results in a Category B Percentage Interest for REIT of (i) the difference between $100,000 minus $50,000, divided by (ii) $1,500,000 = 3.33%.

 

*Relative Category Percentage Interests are calculated by dividing the Category Percentage Interest of a Category B Member by the aggregate Category B Percentage Interest of all contributing Category B Members (i.e., 80/(80+1) = 98.77% and 1/(80+1) = 1.23%, respectively).

 

 

EXHIBIT D

 

Performance Goals

 

Investment must (i) achieve 90% of budgeted NOI based on projections at closing and (ii) maintain leases covering in excess of 75% of the rentable square footage of all properties comprising the Investment. MN Retail may assign Operating Member’s Incentive Fee to a replacement third party upon a specified termination event relating to “bad boy” acts of the Operating Member or violation of the Performance Tests.

 

Budgeted Net Operating Income		Yr 1				Yr 2				Yr 3				Yr 4				Yr 5
Year Ending		▇▇▇-▇▇				▇▇▇-▇▇				▇▇▇-▇▇				▇▇▇-▇▇				Mar-20
Aurora Commons - Office		$	137,313			$	126,540			$	162,840			$	144,673			$	175,062
Aurora Commons - Retail			633,879				655,963				662,723				664,729				710,239
Constitution Trail			2,104,714				2,208,270				2,414,195				2,553,749				2,564,344
Osceola Village			1,575,656				1,586,072				1,716,547				1,665,533				1,717,043
Total Budgeted NOI		$	4,451,562			$	4,576,845			$	4,956,305			$	5,028,684			$	5,166,688
% of Budgeted NOI			90	%			90	%			90	%			90	%			90	%
NOI Threshold		$	4,006,406			$	4,119,161			$	4,460,675			$	4,525,816			$	4,650,019

 

 

SCHEDULE A-1

 

ESTIMATED REQUIRED CATEGORY A INITIAL CAPITAL CONTRIBUTIONS

 

MN Retail		$	7,389,998
Operating Member		$	923,750
TRS		$	923,750

 

 

SCHEDULE A-2

 

ESTIMATED REQUIRED CATEGORY B INITIAL CAPITAL CONTRIBUTIONS

 

MN Retail		$	16,578,002
Operating Member		$	2,072,250
TRS		$	2,072,250

 

 

SCHEDULE B-1

 

CATEGORY A PROPERTY

 

Maplewood – Rochester, Minnesota

 

▇▇▇▇▇▇ & Nobel – Omaha, Nebraska

 

Lakeville – Lakeville, Minnesota

 

Jamestown Business Center – Jamestown, North Dakota

 

Evergreen – Pine City, Minnesota

 

Burnsville — Burnsville, Minnesota

 

Evergreen C-Store – Pine City, Minnesota

 

Buffalo Mall – Jamestown, North Dakota

 

 

SCHEDULE B-2

 

CATEGORY B PROPERTY

 

Chanhassen — Chanhassen, Minnesota

 

Westgate – St. Cloud, Minnesota

 

Westlake – Forest Lake, Minnesota

 

South Pond – Champlin, Minnesota

 

Med Park Mall – Grand Forks, North Dakota

 

Duluth ▇▇▇▇ ▇▇▇▇▇ — ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇

 

Duluth Denfield — Duluth, Minnesota

 

Monticello — Monticello, Minnesota

 

 

SCHEDULE C

 

SAMPLE CALCULATION OF ASSET MANAGEMENT FEE

 

Sample Calculation of Asset Management Fee

 

Property		Investment Value
Burnsville		$	1,300,000
Champlin South Pond		$	2,200,000
Chanhassen West Village		$	29,200,000
4615 Grand		$	900,000
Denfield Retail		$	4,000,000
Forest Lake Westlake		$	5,200,000
Grand Forks-MedPark		$	960,000
Buffalo Mall		$	2,800,000
Jamestown Bus Ctr		$	2,300,000
Lakeville		$	2,500,000
Monticello		$	500,000
▇▇▇▇▇▇ & Noble		$	4,200,000
Pine City-Evergreen C Store		$	▇▇▇,▇▇▇
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇		$	1,100,000
Maplewood Square		$	15,000,000
Westgate		$	8,100,000
Total		$	80,560,000
Asset Fee (monthly)			0.020830	%
Monthly Fee		$	16,780.65

 

 

SCHEDULE D

 

ONGOING CLASS ACTION AGAINST SRT

 

Case No. 13-CV-04921-JST currently pending before the United States District Court for the Northern District of California [captioned as ▇▇▇▇▇ ▇▇▇▇▇, as Trustee for the Booth Trust dated 11-20-96, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of themselves and all others similarly situated, Plaintiffs, v. STRATEGIC REALTY TRUST, INC. (f/k/a TNP STRATEGIC RETAIL TRUST, INC.), ▇▇▇▇▇▇▇▇ NATIONAL PROPERTIES, LLC, TNP STRATEGIC ADVISOR, LLC, TNP SECURITIES, LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Defendants].