EXHIBIT 10.62
OPERATING AGREEMENT OF
AV Medical Associates, LLC,
a California Limited Liability Company
This Operating Agreement is made and entered into as of September 25,
1997, by and between M&Z Aliso Associates, LLC, a California limited liability
company ("M&Z") and G&L Realty Partnership, L.P., a Delaware limited partnership
("GLR") (each, a "Member" and, collectively, the "Members"). Certain capitalized
words used herein have the meanings set forth in Section 2 hereof.
1. ORGANIZATION
1.1 A CALIFORNIA LIMITED LIABILITY COMPANY. The Members have formed a
California limited liability company (the "Company") by executing and delivering
the Articles of Organization to the Secretary of State of California in
accordance with the Act, and the rights and liabilities of the Members shall be
as provided in such Act except as may be modified in this Agreement. In the
event of a conflict between the provisions of the Act and the provisions of this
Agreement, the provisions of this Agreement shall prevail unless the Act
specifically provides that the Operating Agreement may not change the provision
in question.
1.2 BUSINESS PURPOSE. The business of the Company is to acquire, own,
operate, construct, improve, manage, lease, sell, exchange or otherwise use real
property and any personal property associated therewith, and to engage in any
and all activities related or incidental thereto, and specifically to acquire
certain real property described as Parcel 2 of lot line adjustment LLA 97-017
recorded July 7, 1997 as Instrument No. 19970320479 in Official Records of
Orange County, California (the "Real Property"), to construct a medical office
building thereon (the "Office Building"), and to hold such improved real
property for lease and investment. The Real Property, the Office Building and
all other improvements to the Real Property are hereinafter collectively
referred to as the "Property." Notwithstanding the foregoing, and subject to
approval of all of the Members, the Company may engage in any lawful business
activity in which a California limited liability company may engage, except that
the Company shall not engage in the trust company business or in the businesses
of banking or insurance.
1.3 NAME AND ADDRESS OF COMPANY. The business of the Company shall be
conducted under the name "AV Medical Associates, LLC," at the following address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.4 TERM. The term of this Agreement shall be coterminous with the
period of duration of the Company as provided in the Articles, which is from the
date of the filing of the Articles until December 31, 2047, unless extended or
sooner terminated as provided in this Agreement.
1.5 REQUIRED FILINGS. The Members shall cause to be executed, filed,
recorded and/or published, such certificates and documents as may be required by
this Agreement or by law in connection with the formation and operation of the
Company.
1.6 REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered office and initial registered agent shall be as provided in the
Articles. The registered office and register
agent may be changed from time to time by the Members by causing the filing of
the new address and/or the name of the new registered agent in accordance with
the Act.
2. DEFINITIONS
For purposes of this Agreement the terms defined hereinbelow shall
have the following meaning unless the context clearly requires a different
interpretation:
2.1 "ACT" shall mean the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited Liability Company Act,
codified in the California Corporation's Code, Section 17100 et seq., as may be
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amended from time to time.
2.2 "ADJUSTED CAPITAL CONTRIBUTIONS" shall mean the excess of (i) each
Member's money or property contributed to the Company as capital, including
contributions when the Company is formed, and later contributions, less any
liabilities assumed by the Company pursuant to such contribution over (ii) the
sum of cumulative Distributions to such Member under Section 4.4(a)(iv) and
Section 4.4(b)(ii), in the case of GLR, and Section 4.4(a)(iv) and Section
4.4(b)(iv), in the case of M&Z, attributable to such Member's Adjusted Capital
Contributions as referred to therein (such Distributions to be valued in
accordance with the principles of Treasury Regulation Section 1.714-1
(b)(2)(iv)(e)).
2.3 "AGREEMENT" shall mean this Operating Agreement of the Company.
2.4 "AFFILIATE" shall mean with respect to any person or entity: (a)
any person or entity directly or indirectly controlling, controlled by, or under
common control with such person or entity; (b) any person or entity owning or
controlling 10% or more of the outstanding voting securities or beneficial
interests of such person or entity; (c) any officer, director, general partner,
trustee, or anyone acting in a substantially similar capacity as to such person
or entity; (d) any person or entity who is an officer, director, general
partner, trustee, or holder of 10% or more of the voting securities or
beneficial interests of any of the foregoing; and (e) any person or entity
related to such person or entity within the meaning of Code Section 267(b).
2.5 "ARTICLES" shall mean the Articles of Organization of the Company
as filed with the Secretary of State as the same may be amended from time to
time.
2.6 "ASSIGNEE" shall mean a person who has acquired an economic
interest in the Company from a third party but who is not a Substituted Member.
2.7 "CAPITAL ACCOUNT" of a Member shall mean the capital account of
that Member determined from the inception of the Company strictly in accordance
with the rules set forth in Section l.704-l(b)(2)(iv) of the Treasury
Regulations. In accordance with that Section of the Treasury Regulations, a
Member's Capital Account shall be equal to the amount of money contributed by
the Member and the fair market value of any property contributed by the Member
(net of liabilities secured by the property or to which the property is subject)
increased by allocations of Net Income to the Member and decreased by (a) the
amount of money distributed to the Member, (b) the fair market value of any
property distributed to the Member by the Company (net of liabilities secured by
the property or to which the property is subject), (c) the Member's share of
expenditures of the Company described in Section 705(a)(2)(B) of the Code
(including, for this purpose, losses which are nondeductible under Section
267(a)(1) or Section 707(b) of the Code) and (d) the Net Losses allocated
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to the Member. The Capital Account of a Member shall be further adjusted as
required by Section l.704-l(b)(2)(iv) of the Treasury Regulations. To the extent
that anything contained herein shall be inconsistent with Section l.704-
l(b)(2)(iv) of the Treasury Regulations, the Treasury Regulations shall control.
The Capital Account of an Assignee shall be the same as the Capital Account of
the Member from whom the Assignee acquired its Interest, as further adjusted
pursuant to this Section 2.6 as if such Assignee were a Member.
2.8 "CAPITAL CONTRIBUTIONS" shall mean the total cash investment and
contribution to the capital of the Company by the Members, as provided in
Section 3.1.
2.9 "CAPITAL EVENT" shall mean the sale or other disposition of the
Company's assets of a capital type (including all or any portion of the
Property) regardless of whether such property is treated as capital gain
property or ordinary income property for federal income tax purposes), the
refinancing of any such Company assets, the receipt of insurance and other
proceeds derived from the involuntary conversion of such Company assets, or from
similar events with respect to the assets of the Company.
2.10 "CASH FROM CAPITAL EVENTS" shall mean (i) the cash proceeds from
a Capital Event after retirement of debt of the Company and all expenses
relating to the transaction, and retention of reasonable reserves, and (ii) cash
proceeds representing excess condemnation proceeds or insurance proceeds.
Excess condemnation proceeds and insurance proceeds shall include the remaining
condemnation proceeds and insurance proceeds after (i) payments required to be
made to lenders, tenants or any other party pursuant to an agreement of the
Company, (ii) all expenses for repairs and restorations made by the Company at
the reasonable discretion of the Members, subject to Section 5, to repair or
restore the damage caused by the condemnation or by the event for which the
insurance is provided, (iii) all expenses relating to the condemnation or
insurance payment, and (iv) the retention of reasonable reserves.
2.11 "CODE" shall mean the Internal Revenue Code of 1986, as amended
to date, or corresponding provisions of subsequent superseding revenue laws.
2.12 "COMPANY" shall refer to the limited liability company created
pursuant to the Articles as governed by this Agreement.
2.13 "COMPANY MINIMUM GAIN" with respect to any taxable year of the
Company shall mean the "partnership minimum gain" of the Company computed
strictly in accordance with the principles of Section l.704-2(b)(2) of the
Treasury Regulations.
2.14 "CONSTRUCTION PERIOD" shall mean the period of time commencing at
the inception of the Company up to the date the notice of completion for the
Office Building is recorded in the Official Records of Orange County,
California.
2.15 "DISTRIBUTABLE CASH FROM OPERATIONS" shall mean the excess of
cash received by the Company from operations over (a) operational cash
disbursements, and (b) a reasonable allowance for reserves, contingencies and
anticipated obligations.
2.16 "DISTRIBUTIONS" shall mean any cash (or property to the extent
applicable) distributed to the Members or Assignees arising from their
Interests in the Company.
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2.17 "ECONOMIC RISK OF LOSS" shall mean the economic risk of loss
within the meaning of Section l.752-2 of the Treasury Regulations.
2.18 "INTEREST" shall mean the ownership interest as a Member in the
Company or the economic interest as an Assignee.
2.19 "MAJORITY-IN-INTEREST" shall mean any group of Members who
own a majority of the interests in both the Net Income and Capital Accounts of
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the Company. For this purpose, Net Income is determined and allocated based on
any reasonable estimate of Net Income from the date of the event giving rise to
the vote of the Members to the projected termination of the Company, taking into
account present and future allocations of Net Income under this Agreement as in
effect on the date of the event. For this purpose, Capital Accounts are
determined as of the date of the event.
2.20 "MEMBER" shall mean any person or entity admitted to the Company
as a Member or Substituted Member and who has not ceased to be a Member.
2.21 "MEMBER NONRECOURSE DEBT" shall mean liabilities of the Company
treated as "partner nonrecourse debt" under Section 1.704-2(b)(4) of the
Treasury Regulations.
2.22 "MEMBER NONRECOURSE DEDUCTIONS" shall mean in any Company fiscal
year, the Company deductions that are characterized as "partnership nonrecourse
deductions" under Section l.704-2(i)(2) of the Treasury Regulations.
2.23 "NET INCOME FROM OPERATIONS" and "NET LOSSES" shall mean the net
income and net losses, respectively, of the Company as determined for federal
income tax purposes; provided however, that the "book" value of an asset shall
be substituted for its adjusted tax basis if the two differ, and provided that
the following items shall be excluded from the computation of Net Income and Net
Losses:
(a) Any gain or income specifically allocated under Section
4.5(d)(iii), (iv) or (v).
(b) Any Nonrecourse Deductions.
(c) Any Member Nonrecourse Deductions.
(d) Net Income from Capital Events.
2.24 "NET INCOME FROM CAPITAL EVENTS" shall mean the net income of the
Company recognized from a Capital Event as determined for federal income tax
purposes; provided, however, that the "book" value of an asset shall be
substituted for its adjusted tax basis if the two differ.
2.25 "NONRECOURSE DEDUCTIONS" in any fiscal year means the amount of
Company deductions that are characterized as "nonrecourse deductions" under
Section 1.704-2(b)(l) of the Treasury Regulations.
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2.26 "NONRECOURSE LIABILITIES" shall mean the liabilities of the
Company treated as "nonrecourse liabilities" under Section l.752-1(a)(2) of the
Treasury Regulations.
2.27 "PERCENTAGE INTEREST" shall mean the percentage interest
indicated on SCHEDULE A, as adjusted pursuant to Section 3.l of this Agreement.
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2.28 "PREFERRED RETURN" shall mean a cumulative, non-compounded annual
return of ten percent (10.00%) (pro rated for periods less than a whole year) on
the periodic balances of a Member's Adjusted Capital Contributions.
2.29 "SUBSTITUTED MEMBER" shall mean an Assignee who shall become a
Member in the place of an assignor Member pursuant to Section 7.3.
2.30 "TREASURY REGULATIONS" shall mean the regulations of the United
States Treasury Department pertaining to the Code, as amended, and any
successor provision(s).
3. CAPITAL
3.1 CAPITAL CONTRIBUTIONS AND LOANS.
(a) INITIAL CONTRIBUTIONS AND LOANS.
(i) INITIAL CONTRIBUTIONS. Each Member shall make an initial
contribution to the capital of the Company in the amount set forth on SCHEDULE
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A, which amount shall be contributed upon execution of this Agreement. Further,
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M&Z shall concurrently herewith assign to the Company all right, title and
interest to acquire the Property pursuant to that certain Purchase and Sale
Agreement with Escrow Instructions between Mission Viejo Company as Seller and
M&Z Associates, LLC dated as of May l, l997, as amended, together with those
contracts and other agreements related to the Office Building set forth on
SCHEDULE B attached hereto.
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(ii) Initial Loans. GLR shall concurrently herewith loan to
the Company $2,000,000, which loan shall be evidenced by a promissory note (the
"Note"), with monthly interest only payments, at the rate of ten percent (10%)
per annum, with all principal and accrued but unpaid interest due and payable
one year from the date hereof. The Note shall be in the form of and on such
additional terms as EXHIBIT A attached hereto and shall be secured by a deed of
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trust in the form and on the terms of EXHIBIT B attached hereto, which deed of
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trust shall encumber the Real Property and the Office Building (the "Trust
Deed").
(b) ADDITIONAL CAPITAL REQUIREMENTS.
(i) ADDITIONAL CAPITAL CONTRIBUTIONS. In the event any
Member reasonably determines, from time to time, that additional capital is
required for the operations of the business of the Company ("Shortfall Amount")
and funds are not available from commercial lenders on terms reasonably
acceptable to all of the Members, the determining Member shall send a notice of
such Shortfall Amount to the other Members ("Shortfall Notice"). All of the
Members may (but shall not be obligated to) thereupon, within thirty (30) days
of the date of such Shortfall Notice (the "Contribution Date") contribute
("Shortfall Contribution(s)"), pro rata based on their respective initial
Percentage Interest at the time of execution of this Agreement, without
adjustment
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pursuant to Section 3.l(b)(ii) or otherwise ("Initial Percentage Interest"), the
Shortfall Amount to the Company. Each Member may contribute in cash an amount
(the "Member's Share") equal to such Member's Initial Percentage Interest
multiplied by the total Shortfall Amount identified in the Shortfall Notice. M&Z
may elect, by delivery of written notice to GLR and the Company, to have all or
a part of the amount to be distributed to M&Z pursuant to Section 4.4(b)(v)
herein applied to its Member's Share and the Company shall accept such credit of
any amount yet to be distributed to M&Z pursuant to Section 4.4(b)(v) to M&Z's
Member's Share then due and owing. If any Member shall fail to contribute as
referenced above, then (i) such non-contributing Member(s) shall be referred to
herein as a "Non-Contributing Member," and (ii) each of the remaining Members
who have voluntarily contributed their respective Member's Share (a
"Contributing Member") shall have the right to either (A) contribute its
Member's Share plus the amount the Non-Contributing Members failed to contribute
(allocated among all Contributing Members who desire to make such contributions
in accordance with their respective Initial Percentage Interests), in which case
such contributions shall be treated like all other Shortfall Contributions, or
(B) loan ("Shortfall Loan") its Member's Share plus the amount the Non-
Contributing Members failed to contribute (allocated among all Contributing
Members who desire to make such loan in accordance with their respective Initial
Percentage Interests). Shortfall Loan(s) shall (i) bear interest at a rate equal
to the lesser of (A) 3% over ▇▇▇▇▇ Fargo Bank's then quoted prime rate, as
adjusted from time to time, or (B) the maximum rate then permitted by law, (ii)
be repaid by the Company to the lending Members pro rata prior to the
Distributions made to all of the Members pursuant to Section 4, (iii) be
evidenced by a promissory note, and (iv) be on such other terms and conditions
as reasonably determined by the Contributing Members.
(ii) DILUTION FOR NON-CONTRIBUTING MEMBERS. If any
Contributing Member(s) makes a Shortfall Contribution for Non-Contributing
Member(s), then (i) the Percentage Interest(s) of the Contributing Member(s)
shall be increased, pro rata, by a percentage equal to 200% times a fraction,
the numerator of which is the amount of the Non-Contributing Member's(s') Share
and the denominator of which is the sum of the total capital contributed to the
Company to date, including the then current Shortfall Contribution, and (ii) the
Percentage Interest(s) of the Non-Contributing Member(s) shall be decreased, pro
rata, by the same percentage calculated in subpart (i) of this subsection.
(iii) PRIORITY OF ADDITIONAL CONTRIBUTIONS AND LOANS.
Notwithstanding any provision to the contrary in Section 4 or any other Section
of this Agreement, in the event any Shortfall Contributions or Shortfall Loans
have been made pursuant to this Section, (i) prior to any Distributions being
made, all Shortfall Loans shall be repaid in full, and (ii) all subsequent
Distributions shall be made to the Members pro rata in proportion to their
unrecovered Shortfall Contributions made pursuant to this Section until they
have fully recovered such Shortfall Contributions.
3.2. INTEREST. No Member shall receive interest on its
contribution to the capital of the Company.
3.3. WITHDRAWAL AND RETURN OF CAPITAL. Except as may be provided
herein, no Member may withdraw any portion of the capital of the Company and no
Member shall be entitled to the return of its contribution to the capital of the
Company except on dissolution of the Company.
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3.4 CAPITAL ACCOUNTS.
(a) MEMBER CAPITAL ACCOUNTS. An individual Capital Account shall
be maintained for each Member.
(b) CAPITAL ACCOUNT OF ASSIGNEE. On any sale or transfer of any
Interest, the Capital Account of the transferor Member shall become the Capital
Account of the Assignee Member, as it existed at the effective date of the
transfer of the Member's Interest.
(c) DEFICIT CAPITAL ACCOUNT. No Member shall have any liability
to the Company, to any other Member, or to the creditors of the Company on
account of any deficit Capital Account balance.
4. FINANCIAL
4.1 ACCOUNTING METHOD. The Company books shall be kept on a basis to
be jointly determined by the Members.
4.2 FISCAL YEAR. The fiscal year of the Company shall end on December
31, unless the Members determine that some other fiscal year would be more
appropriate and obtain the consent of the Internal Revenue Service to use that
other fiscal year.
4.3 EXPENSES OF THE COMPANY. The Company shall pay or reimburse to
the Members the expenses of the Company including, but not limited to, the
organizational expenses (including legal and filing fees), the operational
expenses and any expenses incurred in connection with purchasing, operating and
disposing of any Company property; provided, however, that the Members shall not
incur expenses on behalf of the Company or be reimbursed for any expenses that
are not related to the business of the Company and shall only be reimbursed for
expenses approved by the Members in accordance with Section 5 hereof.
4.4 DISTRIBUTIONS. Other than Distributions in liquidation as
provided in Section 9.3, Distributions shall be distributed at such times as
determined by the Members and when distributed shall be distributed to the
Members in accordance with the following order of priority:
(a) DISTRIBUTABLE CASH FROM OPERATIONS. Distributable Cash from
Operations shall be distributed as follows:
(i) First, to GLR until it has received cumulative
Distributions pursuant to this Section 4.4(a)(i) and Section 4.4(b)(i) equal to
its Preferred Return that has accrued during the Construction Period; and
thereafter
(ii) To M&Z until it has received cumulative Distributions
pursuant to this Section 4.4(a)(ii) and Section 4.4(b)(iii) equal to its
Preferred Return that has accrued during the Construction Period; and thereafter
(iii) To the Members until they have received cumulative
Distributions pursuant to this Section 4.4(a)(iii) and Section 4.4(b)(i) (in the
case of GLR) and this Section 4.4(a)(iii) and Section 4.4(b)(iii) (in the case
of M&Z) equal to their Preferred Returns accrued
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for periods commencing on the first date after the Construction Period,
allocated among them in proportion to their relative accrued Preferred Returns;
and thereafter
(iv) To the Members to the extent of their Adjusted Capital
Contributions, allocated among them in proportion to their relative Adjusted
Capital Contributions; and thereafter
(v) To the Members in accordance with their Percentage
Interests.
(b) DISTRIBUTIONS OF CASH FROM CAPITAL EVENTS. Distributions of
Cash from Capital Events shall be as follows:
(i) To GLR until it has received cumulative Distributions
pursuant to this Section 4.4(b)(i), Section 4.4(a)(i) and Section 4.4(a)(iii)
equal to its accrued but unpaid Preferred Return; and thereafter
(ii) To GLR to the extent of its Adjusted Capital
Contributions; and thereafter
(iii) To M&Z until it has received cumulative Distributions
pursuant to this Section 4.4(b)(iii), Section 4.4(a)(ii) and Section 4.4(a)(iii)
equal to its accrued but unpaid Preferred Return; and thereafter
(iv) To M&Z to the extent of its Adjusted Capital
Contributions; and thereafter
(v) To M&Z until it has received credits to its Member's
Share pursuant to Section 3.1(b)(i) and cumulative Distributions pursuant to
this Section 4.4(b)(v) equal in the aggregate to $75,000; and thereafter
(vi) To GLR until it has received cumulative Distributions
pursuant to this Section 4.4(b)(vi) equal to a cumulative, but noncompounded,
five percent (5%) return on its Adjusted Capital Contributions computed from
the inception of the Company; and thereafter
(vii) To M&Z until it has received cumulative Distributions
pursuant to this Section 4.4(b)(vii) equal to a cumulative, but noncompounded,
five percent (5%) return on its Adjusted Capital Contributions computed from the
inception of the Company; and thereafter
(viii) To the Members in accordance with their Percentage
Interests.
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4.5 ALLOCATIONS OF NET INCOME AND NET LOSSES. Subject to Section
4.5(d), below, Net Income from Operations, Net Income from Capital Events and
Net Losses shall be allocated to the Members based on the following order of
priority:
(a) NET INCOME FROM OPERATIONS. Net Income from Operations shall
be allocated to the Members in the following order of priority:
(i) First, to the Members with negative Capital Accounts,
between them in proportion to the ratio of their negative Capital Account
balances, until no Member has a negative Capital Account (after crediting each
Member's Capital Account for the amount each Member is deemed obligated to
restore pursuant to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), and after adjusting each Member Capital
Account as required in Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Treasury Regulations); and thereafter
(ii) To GLR to the extent, if any, that its Adjusted
Capital Contributions exceeds its Capital Account balance; and thereafter
(iii) To M&Z to the extent, if any, that its Adjusted
Capital Contributions exceeds its Capital Account balance; and thereafter
(iv) To GLR to the extent that the sum of its Adjusted
Capital Contributions and unpaid Preferred Return that has accrued during the
Construction Period exceeds its Capital Account balance; and thereafter
(v) To M&Z to the extent that the sum of its Adjusted
Capital Contributions plus unpaid Preferred Return that has accrued during the
Construction Period exceeds its Capital Account balance; and thereafter
(vi) To the Members whose Adjusted Capital Contributions
plus unpaid Preferred Returns exceed their Capital Accounts balances, among them
in proportion to such excesses; and thereafter
(vii) To the Members in accordance with their Percentage
Interests.
(b) NET INCOME FROM CAPITAL EVENTS. Net Income from Capital
Events shall be allocated in accordance with the following order of priority:
(i) First, to the Members with negative Capital Accounts,
between them in proportion to the ratio of their negative Capital Account
balances, until no Member has a negative Capital Account (after crediting each
Member's Capital Account for the amount each Member is deemed obligated to
restore pursuant to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), and after adjusting each Member Capital
Account as required in Section l.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Treasury Regulations); and thereafter
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(ii) To GLR to the extent that the sum of its Adjusted
Capital Contributions and unpaid Preferred Return that has accrued exceeds its
Capital Account balance and thereafter
(iii) To M&Z to the extent that the sum of its Adjusted
Capital Contributions and unpaid Preferred Return that has accrued exceeds its
Capital Account balance; and thereafter
(iv) To M&Z to the extent that the cumulative allocations
pursuant to this Section 4.5(b)(iv) equals $75,000; and thereafter
(v) To GLR to the extent that the sum of (i) its Adjusted
Capital Contributions, (ii) its Preferred Return and (iii) an amount equal to a
cumulative five percent (5%) return on its Adjusted Capital Contributions
computed from the inception of the Company exceeds its Capital Account balance;
and thereafter
(vi) To M&Z to the extent that the sum of(i) its Adjusted
Capital Contributions, (ii) its Preferred Return and (iii) an amount equal to a
cumulative five percent (5%) return on its Adjusted Capital Contributions
computed from the inception of the Company exceeds its Capital Account balance;
and thereafter
(vii) To the Members in accordance with their Percentage
Interests.
(c) NET LOSSES AND NONRECOURSE DEDUCTIONS. Net Losses and
Nonrecourse Deductions shall be allocated in accordance with the following order
of priority:
(i) First, to the Members until the Members have received
cumulative allocations of Net Loss and Nonrecourse Deductions pursuant to this
Section 4.5(c)(i) equal to the difference between (A) the cumulative allocations
of Net Income pursuant to Section 4.5(a)(vii) and Section 4.5(1)(vii) over (B)
the cumulative Distributions to the Members pursuant to Section 4.4(a)(v) and
Section 4.4(b)(viii), among them in proportion to their relative proportion of
such amounts; and thereafter
(ii) To M&Z until it has received cumulative allocations of
Net Loss and Nonrecourse Deductions pursuant to this Section 4.5(c)(ii) equal to
the difference between (A) the cumulative allocations of Net Income pursuant to
Section 4.5(b)(vi) over (B) the cumulative Distributions to M&Z pursuant to
Section 4.4(b)(vii); and thereafter
(iii) To GLR until it has received cumulative allocations of
Net Loss and Nonrecourse Deductions pursuant to this Section 4.5(c)(iii) equal
to the difference between (A) the cumulative allocations of Net Income pursuant
to Section 4.5(b)(v) over (B) the cumulative Distributions to GLR pursuant to
Section 4.4(b)(vi); and thereafter
(iv) To M&Z to the extent that it has received cumulative
allocations of Net Loss and Nonrecourse Deductions pursuant to this Section
4.5(c)(iv) equal to the difference between (A) the cumulative allocations of Net
Income to M&Z pursuant to Section 4.5(b)(iv) over (B) the cumulative
Distributions to M&Z pursuant to Section 4.4(b)(v); and thereafter
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(v) To M&Z until it has received cumulative allocations of
Net Loss and Nonrecourse Deductions pursuant to this Section 4.5(c)(v) equal to
the difference between (A) the cumulative allocations of Net income to M&Z
relating to its unpaid Preferred Return pursuant to Sections 4.5(a)(v) and (vi),
and Section 4.5(b)(iii) over (B) the cumulative Distributions to M&Z relating to
its unpaid Preferred Return pursuant to Sections 4.4(a)(ii) and (iii), and
Section 4.4(b)(iii); and thereafter
(vi) To M&Z until its Capital Account balance is reduced to
zero; and thereafter
(vii) To GLR until it has received cumulative allocations of
Net Loss and Nonrecourse Deductions pursuant to this Section 4.5(c)(vii) equal
to the difference between (A) the cumulative allocations of Net Income to GLR
relating to its unpaid Preferred Return pursuant to Sections 4.5(a)(iv) and
(vi), and Section 4.5(b)(ii) over (B) the cumulative Distributions to GLR
relating to its Preferred Return pursuant to Sections 4.4(a)(i) and (iii), and
Section 4.4(b)(i); and thereafter
(viii) To GLR until its Capital Account balance is reduced
to zero; and thereafter
(ix) To the Members in accordance with their Percentage
Interests
(d) TAX ALLOCATIONS.
(i) 704 ALLOCATIONS. To the extent permitted by Section
1.704-1(b)(4)(i) of the Treasury Regulations, all items of income, gain, loss,
and deduction for Federal and state income tax purposes shall be allocated in
accordance with the corresponding "book" items in accordance with the principles
of Section 704(c) of the Code and Section l.704-l(b)(4)(i) of the Treasury
Regulations.
(ii) RECAPTURE. In the event that the Company has taxable
income that is characterized as ordinary income under the recapture provisions
of the Code, each Member's distributive share of taxable gain or loss from the
sale of Company assets (to the extent possible) shall include a proportionate
share of this recapture income equal to that Member's prior share of prior
cumulative depreciation deductions with respect to the assets which gave rise to
the recapture income.
(iii) MINIMUM GAIN CHARGEBACK. Except as otherwise provided
in Section 1.704-2(f) of the Treasury Regulations, in the event that there is a
net decrease in the Company Minimum Gain during any taxable year, each Member
shall be allocated items of income and gain for such year (and, if necessary,
subsequent years) in an amount equal to such Member's share of the net decrease
in such Company Minimum Gain during such year in accordance with Section 1.704-
2(g) of the Treasury Regulations. This Section 4.4(d)(iii) is intended to comply
with the minimum gain chargeback requirement of Section 1.704-2(f) of the
Treasury Regulations and shall be interpreted consistent therewith.
(iv) MEMBER MINIMUM GAIN CHARGEBACK. Except as otherwise
provided in Section 1.704-2(i)(4) of the Treasury Regulations, in the event
there is a net decrease in the minimum gain attributable to a Member Nonrecourse
Debt during any taxable year, each Member with
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a share of such minimum gain shall be allocated income and gain for the year
(and, if necessary subsequent years) in accordance with Section 1.704-2(i) of
the Treasury Regulations. This Section 4.4(d)(iv) is intended to comply with the
chargeback requirement of Section 1.704-2(i)(4) of the Treasury Regulations and
shall be interpreted consistent therewith.
(v) QUALIFIED INCOME OFFSET. Any Member who unexpectedly
receives an adjustment, allocation, or distribution described in subparagraphs
(4), (5) or (6) of Section 1.704-1 (b)(2)(ii)(d) of the Treasury Regulations,
- - - -
which adjustment, allocation or distribution creates or increases a deficit
balance in that Member's Capital Account, shall be allocated items of "book"
income and gain in an amount and manner sufficient to eliminate or to reduce
the deficit balance in that Member's Capital Account so created or increased as
quickly as possible in accordance with Section 1.704-1 (b)(2)(ii)(d) of the
-
Treasury Regulations and its requirements for a "qualified income offset." The
Members intend that the provision set forth in this Section 4.4(d)(v) will
constitute a "qualified income offset" as described in Section 1.704-1
(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistent
-
therewith.
(e) VARYING INTERESTS. Where any Member's interest, or portion
thereof, is acquired or transferred during a taxable year, the Members may
choose to implement the provisions of Section 706(d) of the Code in allocating
among the varying interests.
(f) CONSENT OF MEMBER. The methods, hereinabove set forth, by
which Net Income, Net Losses and Distributions are allocated and distributed are
hereby expressly consented to by the Members as an express condition of becoming
a Member.
5. MANAGEMENT
5.1 MANAGEMENT OF THE COMPANY.
(a) GENERAL. The operations and affairs of the Company shall be
administered by its Members as set forth in this Section 5.
(b) MANAGING MEMBER CONTROL IN M&Z. M&Z shall be the managing
Member. Except as otherwise expressly stated in this Agreement, M&Z shall have
exclusive control and responsibility over the business of the Company, shall
oversee business operations and day-to-day management of the Company, shall
establish policy and operating procedures respecting the Company's business, and
shall have all rights, power, and authority generally conferred by law or
necessary, advisable, or consistent with accomplishing the purpose of the
Company.
(c) SPECIFIC MANAGEMENT RIGHTS AND OBLIGATIONS
(i) FINANCING AUTHORITY IN GLR. Notwithstanding Section
5.1(b) above, GLR shall have exclusive control and responsibility to arrange all
financings relating to the Company, including, but not limited to, both the
construction financing for the Property and any long term loans secured by the
Property. All such financings shall be on competitive terms and shall be subject
to the reasonable prior written approval of M&Z.
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(ii) DEVELOPMENT AND CONSTRUCTION SUPERVISION/
PREDEVELOPMENT BUDGET PREPARATION. M&Z shall perform all development and
construction supervision services required for the development of the Property
("Development Services"). In addition to all other required Development
Services, M&Z shall, concurrently with the execution of this Agreement, prepare
and submit to GLR for its review and approval a construction budget (the
"Predevelopment Budget") setting forth all costs ("hard" and "soft") to be
incurred in constructing the Office Building, as well as a time schedule for
completing each phase of construction and the final completion date. M&Z has
informed GLR that the aggregate total of all items in the Predevelopment Budget
is approximately $6,000,000. M&Z represents to GLR that M&Z established the
Predevelopment Budget acting diligently and in good faith, and in an effort to
make the cost estimates in the Predevelopment Budget as close as possible to
what the actual costs of such items will be. M&Z further represents to GLR that
M&Z does not anticipate the actual cost of the items specified in the
Predevelopment Budget will exceed $6,000,000. GLR shall either approve or
disapprove the Predevelopment Budget within ten (10) business days of receipt.
If GLR disapproves the Predevelopment Budget, it shall cite the specific reasons
for its disapproval and M&Z shall resubmit a revised budget taking into account
such requested revisions within ten (10) business days of receipt of such
comments. This process shall be repeated until all Members agree on the
Predevelopment Budget.
(iii) PROPERTY MANAGEMENT/OPERATING BUDGET PREPARATION. GLR
shall perform all required property management services for the Property
("Management Services"). In addition to all other required Management Services,
GLR shall, at least ninety (90) days prior to the beginning of each fiscal year
for the Company, prepare and submit to all other Members for their review and
approval an operating budget (the "Operating Budget") setting forth the
anticipated receipts and expenditures for the following Company fiscal year in
such detail as M&Z may reasonably require. Each Member shall either approve or
disapprove the Operating Budget within ten (10) business days of receipt. If a
Member disapproves the Operating Budget, it shall cite the specific reasons for
its disapproval and GLR shall resubmit a revised budget taking into account such
requested revisions within ten (10) business days of receipt of such comments.
This process shall be repeated until all Members agree on the Operating Budget.
(d) EXECUTION OF DOCUMENTS/RELIANCE ON ACTS OF MEMBERS. All of
the Members, on behalf of the Company, shall be required to sign any deed, deed
of trust, ▇▇▇▇ of sale, contract of sale or purchase, option, or other
instrument conveying or encumbering, or purporting to convey or encumber, all or
any portion of the fee interest in any real or personal property, at any time
owned by the Company, for such instrument to be binding and enforceable against
the Company; provided, however, that the Note and Trust Deed may be executed by
either GLR or M&Z alone. Only one Member, on behalf of the Company, shall be
required to sign any lease, license, easement, or other instrument purporting to
create a leasehold or other right to use any portion of the fee interest in any
real or personal property, at any time owned by the Company, for such instrument
to be binding and enforceable against the Company. All other agreements,
documents. and instruments executed on behalf of the Company shall be executed
by at least two Members. Except for the number of Members' signatures required
by this Section, no other signatures shall be required for any agreement,
document, or instrument to be binding and enforceable against the Company. No
purchaser, mortgagee, lessee, assignee, optionee, or other
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party dealing with the Company shall be required to ascertain whether the
provisions of this Agreement have been met or complied with, or to inquire as
to the authority or power of any Member or be obliged to inquire into the
validity of any agreement, document, or instrument executed by the Members, and
any such party shall be exonerated from any and all liability if such party
deals with the Company on the basis of agreements, documents, and instruments
executed on behalf of the Company by the Members as described in this Section.
(e) MAJOR DECISIONS. Notwithstanding any other Section of this
Agreement, no act shall be taken, sum expended, decision made, or obligation
incurred by either M&Z or GLR on behalf of the Company with respect to a matter
within the scope of any of the major decisions enumerated below (hereinafter
"Major Decisions"), unless such Major Decision has been reviewed and approved
in advance in writing by all of the Members. Major Decisions shall only
include:
(i) Election to dissolve the Company;
(ii) Sale of all or substantially all of the assets of the
Company in a single transaction or series of related transactions;
(iii) Amending this Agreement;
(iv) Admitting a new Member;
(v) Any contract for the acquisition of any land, including
but not limited to, option agreements, purchase agreements, ground leases, and
offers to enter into any of the foregoing where a nonrefundable deposit and/or
specific performance of the Company is required in connection with such offer;
(vi) Borrowing in excess of $25,000 or entering into any
loan documents;
(vii) Any participating financing of the Property, including
but not limited to, option and permanent participating financing of the
construction of improvements with respect thereto;
(viii) Any transaction with either an M&Z or GLR Affiliate
(unless otherwise specifically provided for in this Agreement), including
approval of the terms and conditions of such transaction;
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(ix) Entering into a partnership limited liability company,
or joint venture agreement with any third parry, including approval of the terms
and conditions of such partnership. limited liability company, or joint venture
agreement;
(x) Investing Distributable Cash from Operations or Cash
From Capital Events in any asset other than the Property, except temporarily to
establish working capital reserves as reasonably determined by M&Z or GLR, as
applicable (such temporary working capital reserves may be invested in (a)
obligations that are backed by the United States government or insured by FDIC
or FSLIC, or (b) short term corporate paper rated not less than A by Standard
and Poors);
(xi) Adjusting, settling or compromising any claim,
obligation, debt, demand, suit or judgment against the Company involving more
than $10,000;
(xii) Implementing, changing or modifying any site plan(s)
for the development of the Property;
(xiii) Entering into any lease in excess of 3,000 square
feet;
(xiv) Entering into a construction contract with a general
contractor for construction of the Office Building;
(xv) Making any material change in or deviation from the
approved Predevelopment Budget or Operating Budget, and;
(xvi) Establishing, implementing, changing or modifying any
budget for the Property or the Company business.
5.2 COMPENSATION TO THE MEMBERS.
(a) FINANCING FEE. Upon any and all financings and refinancing of
Company indebtedness, GLR shall receive a fee equal to one percent (1.0%) of the
total amount of the financed debt (the "Financing Fee"). The Financing Fee shall
be paid upon finding of the indebtedness. GLR shall also be promptly reimbursed
by the Company for all costs and expenses incurred by GLR relating to any such
financings or refinancings.
(b) DEVELOPMENT FEE. As the sole consideration for performing the
Development Services, M&Z shall receive a development fee equal to $105,000 (the
"Development Fee"). The Development Fee shall be paid monthly in the amount of
$7,500 commencing November 1, 1997 and continuing on the first day of each
calendar month thereafter until construction of the Office Building commences
(defined as pouring of foundations) at which time the monthly payment shall
increase to $10,000 and continue until the Development Fee is paid in full,
provided M&Z is not in default hereunder.
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(c) PROPERTY MANAGEMENT FEE. As the sole consideration for
performing the Management Services, GLR shall receive a monthly property
management fee equal to one percent (1%) of the gross revenues collected during
the calendar month for which such fee is payable (the "Management Fee"). The
Management Fee shall be paid on or before the thirtieth (30th) day after the end
of the calendar month for which it is payable. The term "gross revenues" shall
include all revenues received from the Real Property or the Office Building,
including but not limited to base rent, but excluding reimbursement for property
taxes, insurance and maintenance costs.
5.3 RESPONSIBILITIES OF THE MEMBERS. Each Member shall devote such
time to administering the business of the Company as it reasonably deems
necessary to perform its duties as set forth in this Agreement. Nothing in this
Agreement shall preclude the employment by the Company of any agent or third
party to provide services in respect of the business of the Company; provided,
however, that the Members shall continue to have ultimate responsibility under
this Agreement. The Members shall cause to be filed such certificates or filings
as may be required for the continuation and operation of the Company as a
limited liability company in the State of California or any other state in which
the Company elects to do business. The Members shall use their best efforts to
do all things (including the filing of certificates, the appointment of
registered agents of the Company and maintenance of registered offices of the
Company) requisite to the qualification or maintenance of the Company as a
limited liability company under the laws of the State of California or any other
state in which the Company may elect to do business.
5.4 DEVOTION OF TIME. The Members are not obligated to devote their
full time to the affairs of the Company. Any Member may become involved in other
businesses and occupations and other partnerships, some of which may be directly
competitive with the Company business. The Members shall devote such time as is
necessary to manage the Company business and perform the Members' duties
hereunder.
5.5 LIMITATIONS ON A MEMBER'S AUTHORITY. The Members shall not have
the authority to:
(a) ACT IN CONTRAVENTION OF AGREEMENT. Do any act in
contravention of this Agreement;
(b) USE COMPANY ASSETS. Employ, or permit to employ, the funds
or assets of the Company in any manner except for the exclusive benefit of the
Company;
(c) CREATE LIABILITY TO THE MEMBERS. Perform any action (other
than an act required by this Agreement or any act taken in good faith) which
would, at the time such act occurred, subject the Members to liability in any
jurisdiction;
(d) ALTER OR HINDER PURPOSE OF COMPANY. Alter the primary purpose
of the Company as set forth in Section 1.2 or do any act which would make it
impossible to carry on the ordinary business of the Company; or
(e) POSSESS COMPANY PROPERTY. Possess Company property, assign
the rights of the Company in any property for other than a Company purpose, or
commingle Company funds with those of any other person or entity.
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5.6 LIMITATION OF RIGHTS OF MEMBERS. Except as otherwise provided in
this Agreement, no Member shall have the right or power to: (i) withdraw or
reduce its Capital Contribution, except as a result of the dissolution of the
Company or as otherwise provided in this Agreement or by law; (ii) bring an
action for partition against the Company; or (iii) demand or receive property in
any distribution other than cash. Except as otherwise provided in this
Agreement, no Member shall have priority over any other Member either as to the
return of Capital Contributions or as to allocations of the Net income. Net
Losses or Contributions of the Company.
5.7 TAX MATTERS MEMBER. GLR shall be the "Tax Matters Member" of the
Company in accordance with Section 6231 (a)(7) of the Code and in connection
therewith and in addition to all the powers given thereunder, shall have all
other powers needed to fully perform hereunder including, without limitation,
the power to retain all attorneys and accountants of their choice. The
designation made in this Section is hereby expressly consented to by each Member
as an express condition to becoming a Member.
5.8 APPOINTMENT AND DUTIES OF OFFICERS
(a) APPOINTMENT OF OFFICERS. In connection with the management of
the operations and affairs of the Company, the Members shall have the option to
appoint officers of the Company. The officers of this Company may include a
president, a secretary and a chief financial officer. The Members, at their
discretion, may also appoint a Chairman, one or more vice presidents, one or
more assistant secretaries, one or more assistant financial officers and such
other officers as they deem appropriate. Each officer shall exercise such powers
and perform such duties as are prescribed herein or as determined by the
Members. Any number of offices may be held by the same person. An officer need
not be a member of the Company.
(b) TERM OF OFFICE. The Members may appoint officers to serve for
any period of time that they deem appropriate. Each officer shall hold his
office and perform such duties appurtenant thereto until he shall resign or
shall be removed or otherwise be disqualified to serve, or until a successor to
his office is appointed upon the expiration of his term if a term is specified.
(c) REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Members, at any regular or special meeting
thereof, or, by any officer upon whom such power of removal may be conferred by
the Members (subject, in each case, to the rights, if any, of an officer under
any contract of employment). Any officer may resign at any time by giving
written notice to the Members or to the president or secretary of the Company,
without prejudice, however, to the rights, if any, of the Company under any
contract to which such officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(d) VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the operating agreement for regular appointments to such
office.
(e) CHAIRMAN. The Chairman, if there shall be such an officer,
shall, exercise and perform such other powers and duties as may be from time to
time assigned to him by the Members.
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(f) PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Members to the Chairman, if there be such an officer, the
president shall be the chief executive officer of the Company and shall, subject
to the control of the Members, have general supervision, direction and control
of the business and officers of the Company. The president shall be ex officio a
member of all the standing committees, including the executive committee, if
any, and shall have the general powers and duties of management usually vested
in the office of president of a corporation, and shall have such other powers
and duties as may be prescribed by the Members.
(g) VICE PRESIDENT. In the absence or disability of the
president, the vice presidents in order of their rank as fixed by the Members
or, if not ranked, the vice president designated by the Members, shall perform
all the duties of the president, and when so acting shall have such other powers
and perform such other duties as from time to time may be prescribed for them
respectively by the Members.
(h) SECRETARY. The secretary shall record or cause to be
recorded, and shall keep or cause to be kept, at the registered office and such
other place as the Members may order, a book of minutes of actions taken at all
meetings of Members, with the time and place of holding, the notice thereof
given, the names and membership interests present or represented at Member
meetings, and the proceedings thereof. The secretary shall keep, or cause to be
kept, at the registered office (i) a current list of the full name and last
known business or residence address of each Member and of each holder of an
economic interest in the Company set forth in alphabetical order, together with
the contribution and the share in profits and losses of each Member and holder
of an economic interest, (ii) a copy of the articles of organization and all
amendments thereto, (iii) copies of the Company's federal, state and local
income tax or information returns and reports, if any, for the six most recent
taxable years, (iv) a copy of the Company's operating agreement, and any
amendments thereto, (v) copies of the financial statements of the Company, if
any, for the six most recent fiscal years, and (vi) the books and records of the
Company as they relate to the internal affairs of the Company for at least the
current and past four fiscal years. The secretary shall give, or cause to be
given, notice of all the meetings of the Members required by the operating
agreement or by law to be given, and shall have such other powers and perform
such other duties as may be prescribed by the Members.
(i) CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the
Company shall keep and maintain, or cause to be kept and maintained, adequate
and correct accounts of the properties and business transactions of the Company,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and membership interests. The books of account shall at
all reasonable times be open to inspection by any Member. The Chief Financial
Officer shall deposit all monies and other valuables in the name and to the
credit of the Company with such depositories as may be designated by the
Members. The Chief Financial Officer shall disburse the funds of the Company as
may be ordered by the Members, shall render to the president and Members,
whenever they request it, an account of all of his or her transactions as Chief
Financial Officer and of the financial condition of the Company, and shall have
such other powers and perform such other duties as may be prescribed by the
Members.
5.9 MEETINGS OF MEMBERS. If and when the Members shall determine,
meetings of Members may be called and when called shall be governed by the
provisions in Section 17104 of the Act; provided, however, that this reference
to Section 17104 or any other provision of this Agreement
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shall not be interpreted to require that meetings of the Members be held, it
being the intent of the Members that meetings of the Members are not required.
6 LIABILITY, RESIGNATION AND WITHDRAWAL OF MEMBERS.
6.1 LIABILITY OF MEMBERS. Except as specifically provided in this
Agreement, no Member shall be liable for the debts, liabilities, contracts, or
any other obligations of the Company except with respect to their Capital
Contributions as indicated herein. Only the Company and no third party creditor
(either in its own right or as a successor-in-interest of the Company, and
including a trustee, receiver or other representative of the Company or Member),
shall be entitled to enforce the requirements to make Capital Contributions. The
Members intend and agree that the obligation of the Members to make Capital
Contributions constitutes an agreement to make financial accommodations to and
for the benefit of the other Member and the Company.
6.2 RETURN OF DISTRIBUTIONS. In accordance with the Act, a Member
may, under certain circumstances, be required to return to the Company, for the
benefit of the Company's creditors, amounts previously distributed to the
Member.
6.3 RESIGNATION OR WITHDRAWAL OF A MEMBER. Subject to Section 7, a
Member shall not resign or withdraw as a Member without the unanimous consent of
the other Members.
7. TRANSFERS OF INTERESTS.
7.1 ASSIGNMENT OF INTEREST.
(a) CONSENT. No Member shall have the right to assign the whole
or any part of its Interest in the Company without the unanimous written consent
of the other Member(s). A sale, assignment or other transfer of more than fifty
percent (50%) of the record or beneficial ownership of the stock, partnership or
other ownership interest of M&Z or any Member other than GLR shall constitute a
sale, assignment and transfer of M&Z's or such other Member's Interest under
this Agreement. A sale, assignment or other transfer of any stock, partnership
or other ownership interest in GLR shall in no event constitute a sale,
assignment or transfer of GLR's Interest under any section of this Agreement.
Any transfer approved by the unanimous written consent of the other Member(s)
shall be subject to the right of first refusal contained in Section 7.2 and any
permitted transferee of an Interest shall merely be an Assignee possessing only
an economic interest and shall not become a Substituted Member except upon
compliance with Section 7.3. A Member assigning an Interest in the Company to an
Assignee shall not assign to, nor obligate itself to act on behalf of or upon
the direction of that Assignee with regard to, the Member's right:
(i) To require any information from the Company or obtain
accountings of the Company's activities;
(ii) To inspect the Company's books and records; or
(iii) To vote on any matter upon which a Member is entitled
to vote pursuant to either this Agreement or any applicable law.
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(b) DISTRIBUTIONS. A permitted Assignee shall be entitled to
receive Distributions from the Company attributable to the Interest acquired by
reason of such assignment from and after the effective day of the assignment of
such Interest to him; however, anything herein to the contrary notwithstanding,
the Company shall be entitled to treat the assignor of such Interest as the
absolute owner thereof in all respects, and shall incur no liability for
allocations of Net Income or Net Losses. Distributions or transmittal of reports
and notices required to be given to Members hereunder which are made in good
faith to such assignor until such time as the written instrument of assignment
has been received by the Company and recorded on its books, and the effective
date of assignment has passed.
(c) TRANSFERS NULL AND VOID. Any transfer or attempted transfer
in violation of this Agreement shall be null and void and of no effect. Each
Member acknowledges the reasonableness of the restrictions on transfer imposed
by this Agreement in view of the purposes of the Company, its status as a
limited liability company and the relationship of its Members. The transfer
restrictions contained herein are expressly consented to by each Member as an
express condition of becoming a Member.
7.2 RIGHT OF FIRST REFUSAL. If a Member shall decide to sell or
transfer all or any part of his Interest ("Offered Interest") pursuant to a bona
fide offer, such Member shall give written notice, setting forth in full the
terms of such bona fide offer and the identity of the offeror(s), to the Company
and all other Members (the "Notice"). Pursuant to Section 7.1, if fewer than all
of the other Members consent to such transfer, such transfer shall not be
allowed. If all of the Members have so consented to the transfer, the Company
shall then have the right and option (with the transferring Member not entitled
to vote with regards to such right and option), for a period ending thirty (30)
calendar days following the receipt of such written notice, to elect to purchase
all or any part of the Offered Interest at the purchase price and upon the terms
specified in the bona fide offer, and the remaining Members shall then have the
right and option, for a period of twenty (20) calendar days thereafter, to elect
to purchase, in accordance with such Member's Percentage Interest, all or any
part of the Offered Interest not elected to be purchased by the Company at the
purchase price and upon the terms specified in the bona fide offer, or, if the
purchase price determined using the valuation method described in Section
7.4(c)(i) would be lower, then such price shall be used. If all remaining
Members do not elect to purchase the entire remaining part of the Offered
Interest, then the Members electing to purchase shall have the right, in
accordance with such Member's Percentage Interest, to elect to purchase the
remaining part of the Offered Interest available for purchase. Unless otherwise
provided in the original terms of the bona fide offer, purchase by the Company
and/or the remaining Members shall be completed within sixty (60) calendar days
following receipt of the Notice.
Notwithstanding the foregoing, however, if the Company and/or the
other Members do not elect to purchase all of the Offered Interest, pursuant to
---
the right of first refusal, the Member desiring to sell the Offered Interest
may sell or transfer all of the Offered Interest to the transferee upon the
terms set forth in the written notice provided to the Company, whereupon the
transferee shall take and hold the Interest subject to this Agreement and to all
of the obligations and restrictions upon the Member from whom such Interest was
acquired and shall observe and comply with this Agreement and all such
obligations and restrictions; provided, however, that such Assignee shall not
become a Substituted Member unless the consent requirements of Section 7.3 are
met. Any such transfer of the Offered Interest must be effected within seventy-
five (75) calendar days after the date of the termination of the Members' rights
as provided herein. If no such transfer is effected within the
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seventy-five (75) calendar day period, then any subsequent proposed transfer of
all or any part of such interest shall once again be subject to the provisions
of this Section 7.
For purposes hereof, in the event any consideration offered for the
Offered Interest in the bona fide offer consists of rights, interests or
properties other than money, the Members shall, in good faith, determine the
fair market value of such consideration in monetary terms as of the date the
bona fide offer was received by the Member desiring to sell the Offered Interest
pursuant thereto. The fair market value of such consideration in monetary terms,
as so determined, shall be included in the purchase price payable by the Company
and/or the remaining Members hereunder, but the Company and/or the remaining
Members need not transfer to the selling Member the actual rights, interests or
properties offered in the bona fide offer, nor afford the selling Member the
same tax treatment that would have been available to him under the bona fide
offer, in order to exercise the rights of first refusal granted pursuant to this
Section 7.
7.3 SUBSTITUTED MEMBERS.
(a) CONDITIONS OF SUBSTITUTION. An Assignee may have the right
to become a Substituted Member in place of his assignor only if all of the
following conditions are first satisfied:
(i) WRITTEN ASSIGNMENT. A duly executed and acknowledged
written instrument of assignment shall have been filed with the Company, which
instrument shall specify the percentage of the Interest in the Company being
assigned and which sets forth the intention of the assignor that the Assignee
succeed to the assignor's interest as a Substituted Member in its place;
(ii) INSTRUMENTS OF SUBSTITUTION. The Assignee shall have
executed and acknowledged such other instruments as may be necessary or
desirable to effect such substitution, including the written acceptance and
adoption by the Assignee of the provisions of this Agreement; and
(iii) CONSENT OF MEMBERS. The written consent of all of the
non-transferring Members to such substitution shall have been obtained, the
granting or denial of which shall be within the sole and absolute discretion of
each Member.
7.4 PURCHASE UPON CERTAIN EVENTS.
(a) OPTION TO PURCHASE. The Company shall have the right and
option to elect to purchase all or any part of a Member's Interest ("Option
Interest") upon the occurrence of one or more of the events described in Section
7.4(b) below ("Option Events") for a period of sixty (60) days following the
occurrence of an Option Event. If the Company elects to purchase 100% of the
Option Interest, it shall provide written notice to the Affected Member within
such sixty (60) day period. If the Company does not elect to purchase all of the
Option Interest of the Affected Member, then the non-affected Members shall have
the right and option, for a period of thirty (30) calendar days thereafter, to
elect to purchase, in accordance with such Member's Percentage Interest, all or
any part of the Option Interest not elected to be purchased by the Company. If
the non-affected Members do not elect to purchase the entire remaining part of
the Option Interest, then the Members electing to purchase (the "Purchasing
Members") shall have the right, in accordance with such Member's Percentage
Interest, to elect to purchase the remaining part of the Option Interest
available for
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purchase. If the Company and the Purchasing Members in the aggregate elect to
purchase 100% of the Option Interest, the Company shall provide written notice
to the Affected Member within such thirty (30) day period. If the Company and/or
the Purchasing Members, in the aggregate, do not elect to purchase all of the
Option Interest, none of the affected Member's Interest may be purchased
pursuant to this Section 7.4; provided that the Option Interest shall remain
subject to this Agreement and all such obligations and restrictions; provided
further that if the Option Event causes a transfer of the Option Interest and
the Option Interest is not purchased by the Company and/or the Purchasing
Members, the transferee shall become an Assignee only and shall not become a
substituted Member except upon compliance with Section 7.3. Any purchase of an
Option Interest shall be on the terms as set forth in Section 7.4(c) below.
(b) OPTION EVENTS. Each of the following shall constitute an
Option Event with respect to a Member (the "Affected Member"):
(i) The maintenance of any proceeding initiated by or
against a Member under any bankruptcy or debtors' relief laws of the United
States or of any other jurisdiction, which proceeding is not terminated within
ninety (90) days after its commencement;
(ii) A general assignment for the benefit of the creditors
of a Member;
(iii) A levy upon the Interest of a Member pursuant to a
writ of execution or subject to the authority of any governmental entity, which
levy is not removed within thirty (30) days; and
(iv) The death of a Member who is a natural person.
(c) TERMS OF PURCHASE.
(i) PURCHASE PRICE OF MEMBERSHIP INTEREST. The purchase
price to be paid by the Company and/or the purchasing Members, as the case may
be, upon the exercise of any option to purchase an interest under Section 7.4(a)
above shall be the Fair Market Value of the Option Interest as of the end of the
month preceding the date of the Option Event determined by the Affected Member
or, if dead, the legal representative of the Affected Member, as one party, and
the remaining Members holding a Majority-In-Interest as another party, shall
attempt to agree upon the Fair Market Value of the Option Interest. If such
parties are unable to agree upon the Fair Market Value within thirty (30) days
following the notice of the exercise of the option pursuant to Section 7.4(a)
above, the Fair Market Value of the Option Interest shall be determined by an
independent appraiser experienced in appraising closely held businesses selected
by the mutual agreement of such parties. If such parties are unable to agree
upon a mutually acceptable appraiser within forty-five (45) days following the
notice of exercise of the option pursuant to Section 7.4(a) above, the Fair
Market Value shall be determined by the Company's independent certified public
accountant. In performing such valuation, the appraiser or accountant, as the
case may be, shall consider such methods of valuation as are customary and
appropriate in the discretion of said appraiser or accountant.
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(ii) BINDING EFFECT. The value determined pursuant to
Section 7.4(c) shall be binding upon the parties to this Agreement, their legal
representatives, and their successors in interest.
(iii) PAYMENT OF PURCHASE PRICE. The Company and/or, if
applicable, the Purchasing Members, shall pay the purchase price of the portion
of the Option Interest to be purchased by it in cash no later than sixty (60)
days following the giving of the notice of the election of the Company and/or
the Purchasing Members to the Affected Member or its legal representative of its
election to purchase the Option Interest or, if later, the final determination
as to the value of the Option Interest. Upon the receipt of the payment the
Affected Member or legal representative shall execute all documents required or
appropriate to transfer the Option Interest to the purchasers. If the Affected
Member or the legal representative refuses to do so; the Company shall
nevertheless enter the transfer on its records and the remaining Members shall
be authorized to amend this Agreement to reflect such transfer.
7.5 BUY SELL OBLIGATION BETWEEN MEMBERS. In the event that a Member
desires to purchase the Interest of another Member, or in the event a Member
desires to sell all of its Interest to another Member and such Members are
unable to mutually agree on a price and terms for such purchase or sale within
thirty (30) days of receipt of written notice of a Member's desire to purchase
or sell, as the case may be, the disposition of the Interests of both such
Members shall be controlled by the provisions of Sections 7.5(a), 7.5(b), 7.5(c)
and 7.5(d) hereinbelow and the other applicable provisions of this Agreement.
Although the purchase price for such Interests shall be as hereinafter
determined in this Section 7.5, the manner and terms of payment of such purchase
price upon any such purchase or sale pursuant to this Section 7.5 shall be set
forth in Section 7.4(c)(iii) hereof. Notwithstanding the foregoing provisions of
Section 7.5, no Member shall be entitled to offer to purchase the Interest of
another Member pursuant to this Section 7.5 during the eighteen (18) month
period commencing as of the date hereof unless an event has occurred that
requires the consent of both M&Z and GLR and M&Z and GLR cannot agree on how to
proceed within fifteen (15) days of receipt by M&Z and GLR of written notice
sent by the Member requesting approval of the requested action stating that
failure to resolve such dispute within such fifteen (15) day period shall enable
a Member to exercise its rights to buy or sell pursuant to this Section.
(a) OFFER TO PURCHASE. Each Member agrees that within sixty (60)
days after receipt of an offer to purchase the entire Interest it holds by
another Member (the "Buying Member"), such Member shall either sell the entire
Interest sought by the Buying Member on the terms specified in this Section 7.5,
or shall purchase the entire Interest held by the Buying Member on the terms
specified in this Section 7.5. For the purposes of the foregoing, the Buying
Member's offer to purchase shall be deemed an irrevocable offer to sell its
Interest to the other Member on the terms specified in this Section 7.5.
(b) OFFER TO SELL. Each Member agrees that within sixty (60) days
after receipt of an offer from another Member (the "Selling Member") to sell the
entire Interest the Selling Member holds, such Member must either purchase the
entire Interest offered on the terms specified in this Section 7.5, or sell the
entire Interest it holds to the Selling Member on the terms specified in this
Section 7.5. For the purposes of the foregoing, the Selling Member's offer to
sell
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shall be deemed an irrevocable offer to purchase the other Member's Interest on
the terms specified in this Section 7.5.
(c) NOTICE OF BUY-SELL. The Buying or Selling Member shall give
written notice (the "Buying Notice") of such proposed transfer to the Company
and to each of the other Members in the manner and at the addresses set forth
herein. The Buying Notice must set forth the names of both Members involved, the
Interest owned by each Member, and the value of the Property as determined by
the Buying Member or the Selling Member, as applicable (the "Buy/Sell Value").
Immediately thereafter, the Company shall cause a meeting (the "Buying Meeting")
of the Members in order to allow the interested Members to complete the proposed
transfer in accordance with Sections 7.5(a) and (b) above. The Buying Meeting
shall be called for a date not later than fifteen (15) days from the date of
delivery to the Company of the Buying Notice. Written notice of the Buying
Meeting shall be given to all Members not later than ten (10) days prior to the
date set therefor.
(d) BUY/SELL PRICE. The purchase price to be paid by the
purchasing Member pursuant to this Section 7.5 for the selling Member's Interest
(the "Buy/Sell Price") shall be the amount, as determined by the Company's
accountant, that the selling Member would receive if (i) the Property were sold
for the Buy/Sell Value, less four percent (4%) of the Buy/Sell Value, which the
Members hereby agree is the reasonable estimate of the selling costs that would
be incurred if the Property were actually sold, (ii) the Company were
liquidated, and (iii) the Company's assets were distributed to its Members.
7.6 REFERENCE TO A MEMBER. Wherever the context requires, reference
in this Agreement to a Member shall include an Assignee who does not become a
Substituted Member wherever such reference relates solely to an economic
interest in the Company.
7.7 EXCHANGE. In the event of the acquisition of the Interest of a
Member pursuant to Sections 7.4 or 7.5, the acquiring Member agrees to cooperate
with the selling Member in effecting such transfer as a tax deferred exchange
provided the acquiring Member incurs no additional cost or liability nor does
such cooperation delay the closing of such transfer.
8. BOOKS AND RECORDS
8.1 RECORDS. The Company shall keep at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as shall be designated by
the Members, the following documents:
(a) A current list of the full name and last known business or
residence address of each Member and Assignee set forth in alphabetical order,
together with the contribution and share in profits and losses of each Member or
Assignee;
(b) A copy of the Articles and all amendments thereto, and
executed copies of any powers of attorney pursuant to which the Articles or any
amendments thereto were executed;
(c) Copies of the Company's Federal, state and local income tax
or information returns and reports, if any, for the six most recent taxable
years;
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(d) Copies of the original Agreement and all amendments to the
Agreement, together with any powers of attorney pursuant to which this Agreement
or any amendment to the Agreement were executed;
(e) Financial statements of the Company for the six most recent
fiscal years; and
(f) The Company's books and records as they relate to the
internal affairs of the Company for at least the current and past four fiscal
years.
8.2 INSPECTION.
(a) Upon the request of a Member or Assignee, the Company shall
promptly deliver to the requesting Member or Assignee, at the expense of the
Company, a copy of the information required to be maintained by Sections 8.1(a)
or 8.1(c), above.
(b) Each Member and Assignee has the right, upon reasonable
request, to:
(i) Inspect and copy during normal business hours any of the
Company records required to be maintained by Section 8.1.
(ii) Obtain from the Company, promptly after becoming
available, a copy of the Company's Federal, state and local income tax or
information returns for each year.
8.3 REPORTS.
(a) The Company shall cause an annual financial report to be sent
to each Member not later than 90 days after the close of each fiscal year and
that financial report shall contain: (1) a balance sheet as of the end of the
fiscal year; (2) an income statement; and (3) a statement of changes in
financial position for the fiscal year.
(b) The Company shall send to each Member within 75 days after
the end of each taxable year the information necessary for the Member to
complete its Federal and state income tax or information returns, and a copy of
the Company's Federal, state, and local income tax or information returns for
the year.
9. DISSOLUTION AND TERMINATION OF THE COMPANY
9.1 EVENTS CAUSING DISSOLUTION. The Company shall be dissolved and
its affairs shall be wound-up upon the earliest to occur of the following
events:
(a) The expiration of the term of the Company as stated in the
Articles;
(b) The unanimous vote of the Members to dissolve the Company;
(c) The withdrawal, adjudication of bankruptcy, resignation, or
dissolution of a Member unless after such event their exists at least two
Members and a Majority-In-Interest of
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such remaining Members vote within thirty (30) days of such event to continue
the Company's business, this Company shall continue in business; or
(d) Entry of a decree of judicial dissolution pursuant to Section
17351 of the Act.
9.2 CERTIFICATE OF DISSOLUTION. As soon as possible following the
occurrence of any of the events specified in Section 9.1, the Members shall
execute a Certificate of Dissolution in such form as shall be prescribed by the
California Secretary of State and file the Certificate as required by the Act.
9.3 DISTRIBUTION ON DISSOLUTION. Unless the business of the Company
is continued pursuant to Section 9.1(c), the Members shall take full account of
the Company's assets and liabilities, shall liquidate the assets as promptly as
is consistent with obtaining their fair value, or, if the assets cannot be sold,
they shall be valued and distributed in kind, and shall apply and distribute the
proceeds or assets in the following order:
(a) To the payment of creditors of the Company but excluding
secured creditors whose obligations will be assumed or otherwise transferred on
the liquidation of Company assets;
(b) To the creation of any reserves which the Members jointly
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Company;
(c) To the repayment of any outstanding loans made by any Member
to the Company; and
(d) To the Members with positive Capital Accounts in accordance
with the ratio of their Capital Accounts.
10. INDEMNIFICATION
10.1 GENERAL. The Company, its receiver or its trustee, shall
indemnify, defend, save harmless and pay all judgments and claims against each
of the Members or any of their respective Affiliates ("Indemnitees") from any
liability, loss or damage incurred by it or by the Company by reason of any act
performed or omitted to be performed by it in connection with the business of
the Company, including costs and attorneys' fees (which attorneys' fees may be
paid as incurred) and any amounts expended in the settlements of any claims of
liability, loss or damage provided that the indemnification shall be recoverable
only from the assets of the Company and not any assets of the Members. The
Company may, however, purchase and pay for that insurance, including extended
coverage liability and casualty and worker's compensation, as would be customary
for any person engaging in a similar business, and name the indemnitees as
additional or primary insured parties.
10.2 ADVANCEMENT OF EXPENSES. The Company shall advance all expenses
incurred by an Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding referenced in
Section 10.1 hereof. The Indemnitee person shall repay such amounts advanced
only if, and to the extent that, it shall ultimately be determined that such
person is not entitled to be indemnified by the Company as authorized hereby.
The advances to be
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made hereunder shall be paid by the Company to the indemnified person within ten
(10) days following delivery of a written request therefor by the indemnified
person to the Company.
11. REPRESENTATIONS AND WARRANTIES OF MEMBERS. Each Member hereby
represents, warrants and covenants to the Company that, as of the date hereof:
(a) INVESTMENT REPRESENTATION. The Member has acquired or is
acquiring its Interest in good faith for its own personal account, for
investment purposes only and not with a view to or for the distribution, resale,
subdivision, fractionalization or disposition thereof, and the Member has no
present interest of selling or otherwise distributing such Interest. The Member
is or will be the sole party in interest in its Interest and as such is or will
be vested with all legal and equitable rights in such Interest.
(b) SOPHISTICATION OF THE MEMBER. The Member either has a
preexisting personal or business relationship with the Company or, by reason of
its business or financial experience or the business or financial experience of
its professional advisors, who are unaffiliated with and not compensated by the
Company or an Affiliate of the Company, directly or indirectly, has the capacity
to protect its own interests in connection with this investment. The Member is
able to bear the economic risk of an investment in its interest and can afford
to sustain a total loss on such investment. The nature and amount of the
Member's investment in such Interest is consistent with its investment
objectives, abilities and resources.
(c) NO PUBLIC MARKET. The Member understands that there is no
public market for its interest and that it is extremely unlikely that there
will be such a market in the future. The Member has been advised that its
Interest has not been registered under the Securities Act of 1933, as amended,
and that said interest must be held indefinitely unless it is subsequently
registered under the Securities Act of 1933, as amended, or an exemption from
such registration is available, and understands that the Company is under no
obligation to register said Interest or to comply with any exemption from such
registration requirement. In addition, the Member understands that the
transferability of its Interest is and will be further restricted by this
Agreement which, among other things, requires that any sale or assignment of its
Interest will be subject to certain terms and conditions. Thus, the Member
realizes that it cannot expect to be able to liquidate its investment in the
Company readily, or at all, in the case of an emergency.
(d) SPECULATIVE INVESTMENT. The Member recognizes that an
investment in the Company is speculative in nature and involves a high degree
of risk, and it has carefully considered the risk factors involved. These
factors include, without limitation, the fact that the business of the Company
is in the formative stages and that the Company's initial capitalization may be
insufficient to satisfy the Company's working capital requirements.
12. MISCELLANEOUS
12.1 COUNTERPARTS. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
of the Members, notwithstanding that all of the Members are not signatory to the
original or the same counterpart.
12.2 BINDING ON SUCCESSORS. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the Members.
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12.3 SEVERABILITY. If any sentence or paragraph of this Agreement is
declared by a court of competent jurisdiction to be void, the sentence or
paragraph shall be deemed severed from the remainder of this Agreement and the
balance of this Agreement shall remain in effect.
12.4 NOTICES. All notices under this Agreement shall be in writing
and shall be given to the person entitled thereto, by personal service, or by
mail, posted to the address maintained by the Company for that person or at any
other address that he specifies in writing. The names, addresses and Capital
Contributions of the Members shall be maintained at the principal place of
business of the Company.
12.5 CAPTIONS. Paragraph titles or captions contained in this
Agreement are inserted only as a matter of convenient reference. The titles and
captions in no way define, limit, extend, or describe the scope of this
Agreement nor the intent of any provision hereof.
12.6 GENDER. Whenever required by the context, the masculine gender
shall include the feminine and neuter genders, and vice versa; and the word
"person" shall include a corporation, partnership, firm, or other form of
association; the singular shall include the plural, and vice versa.
12.7 CHOICE OF LAW. This Agreement shall be construed under the laws
of the State of California. This Agreement was executed in and is to be
performed entirely within the State of California.
12.8 ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the Members and supersedes any prior written or oral
agreements between them respecting the subject matter contained herein. There
are no representations, agreements, arrangements or understandings, oral or
written, between and among the Members relating to the subject matter of this
Agreement that are not fully expressed herein.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date first
above-written.
MEMBERS
G&L Realty Partnership, L.P.,
A Delaware Limited Partnership
By: G&L Realty Corp.,
A Maryland corporation,
its general partner
By:
----------------------------
Its: Senior Vice President
---------------------
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M&Z Aliso Associates, LLC,
a California limited liability company
By: Centrium Associates. LLC,
a California limited liability company,
Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Manager
By: MCC Capital Incorporated,
a California corporation, Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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SCHEDULE A
Member Capital Contribution Percentage
------ -------------------- ----------
Interest
--------
G & L Realty Partnership $ 600,000 50%
M&Z Aliso Associates, LLC $ 200,000 50%
--------- ---
Total $ 800,000 100%
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