AMENDED AND RESTATED OPERATING AGREEMENT OF RF GROCERY, LLC an Illinois limited Liability Company
Exhibit 2.1
AMENDED AND RESTATED
OF
RF GROCERY, LLC
an Illinois limited Liability Company
THIS AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT, as the same is amended from time to time (the
“Agreement”) of RF GROCERY, LLC, an Ilinois limited
liability company (the “Company”), is made as of July __, 2020 by and among
the (i) the
Members (as defined herein), and (ii) GK Development, Inc., an
Illinois corporation, d/b/a GK Real Estate, not as a member of the
Company but only as the manager.
WHEREAS, the Company was formed as an Illinois limited
liability company by virtue of the issuance by the Secretary of
State of the State of Ilinois of its Certificate of Formation,
bearing an effective date of May 12, 2020; and
WHEREAS, the Members and the Company entered into an
Operating Agreement (the “Original
Agreement”), dated as of
May 12, 2020; and
WHEREAS, the Members and the Company wish to amend,
restate and supersede in its entirety the Original Agreement and to
make other changes deemed by all of them necessary and proper;
and
WHEREAS, the Members intend that this Agreement
constitutes the Company’s operating agreement, as such term
is defined in Section 15-5 of the Illinois Limited Liability
Company Act, as amended from time to time (the
“Act”).
NOW, THEREFORE, FOR
and in consideration of the mutual
promises of the parties contained in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Members and the Company agree as
follows:
ARTICLE 1 -
DEFINITIONS
1.1 Definitions. For the purpose of
this Agreement, the following capitalized terms shall have the
meanings set forth below:
"Act"
means the Illinois Limited Liability Company Act, 805 ILCS 180/1-1,
et seq., as amended from
time to time.
“Additional
Ordinary Contribution” shall mean any Capital Contribution to
the Company by an Ordinary Member other than the Initial Ordinary
Contribution.
"Agreement" means
this Operating Agreement, as it may be amended or supplemented from
time to time.
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"Assignee" means a
transferee of a Membership Interest (or portion thereof) who has
not been admitted as a Substituted Member with respect to such
Membership Interest (or portion thereof). An Assignee shall have
the rights and obligations of an Assignee as set forth in Section
3.8.
"Capital Account"
of a Member shall have the meaning set forth in Section
3.2.
"Capital
Contributions" means, with respect to any Member, the total amount
of money and the initial fair market value of any property (other
than money), less the amount of debt to which such property is
subject, contributed to the Company by such Member. Any reference
in this Agreement to the Capital Contributions of a Member shall
include the Capital Contributions of its predecessors in
interest.
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time, and any successor federal revenue code of the United
States.
"Company" means RF
Grocery, LLC, an Illinois limited liability company.
"GK"
means GK Development, Inc., an Illinois corporation.
“Initial
Ordinary Contribution” means the Ordinary Member’s
initial Capital Contribution to the Company of
[1,824,213].
"Majority In
Interest" means Members possessing more than fifty percent (50%) of
the total Percentage Interests.
"Manager" means,
initially, GK and, if GK ever ceases to be Manager, "Manager" shall
mean the Person or Persons elected to be successor Manager(s)
pursuant to Section 5.2.
"Member" means any
Person which owns, and pursuant to this Agreement is permitted to
own, a Membership Interest in the Company either as an Ordinary
Member or a Preferred Member and that executes this Agreement (or a
counterpart signature page hereof or a joinder hereto) and agrees
to be subject to and bound by the terms of this Agreement and is
admitted as a Member pursuant to the terms of this Agreement, but
such term shall not include any Person that has ceased to own any
Membership Interest in the Company.
"Membership
Interest" means, with respect to any Member, such Member's entire
ownership interest in the Company at any particular time,
including, without limitation, such Member's right to share in Net
Profit and Net Loss and to receive distributions pursuant to this
Agreement and any and all benefits to which such Member may be
entitled as provided in this Agreement and, subject to this
Agreement, the Act, together with the obligation of such Member to
comply with all the terms and provisions of this
Agreement.
"Net
Profit" and "Net Loss" means for each fiscal year or other period,
an amount equal to the Company's net taxable income or loss for
such year or period, determined in accordance with Code Section
703(a), plus any income exempt from federal income tax under the
Code, and less any expenditures not deductible in computing such
income or loss and not properly chargeable to the capital accounts
of the Members under the Code.
“Ordinary
Member” shall mean GK Investment Property Holdings II, LLC, a
Delaware limited liability company and any other Persons who from
time to time are hereinafter admitted as Ordinary Members of the
Company and who become signatories hereto in accordance with the
terms and provisions of this Agreement.
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"Percentage
Interest" means, as to each Member, the Percentage Interest set
forth opposite such Member's name on Exhibit A hereto, as such
percentage and Exhibit may be revised from time to time in
accordance with this Agreement.
"Permitted
Transferee" means, with respect to a Member, (i) any of such
Member's (or if the Member is a trust, any of such trust's primary
beneficiary's or beneficiaries') spouse, parents, siblings, and
descendants (including any person adopted by such Member and any
person adopted by a descendant of such Member) and the spouse of
any of the foregoing (each, a member of such Member's "Family"),
(ii) the trustee, but only in its capacity as trustee, of a trust
of which no beneficiary (other than a remote contingent
beneficiary) is a Person other than such Member and/or a member or
members of such Member's Family, or (iii) a limited liability
company, limited partnership or other entity created for estate
planning purposes of which such Member and/or Permitted Transferees
of such Member own all of the equity interests.
"Person" means any
individual, sole proprietorship, partnership, limited partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, limited liability
partnership, institution, entity, party, or government (whether
national, federal, state, or local, and any instrumentality,
division, agency, body or department thereof).
“Preferred
Member” shall mean Xxxx Xxxxxxxxx Revocable Trust formed
pursuant to the Declaration Establishing Xxxx Xxxxxxxxx Revocable
Trust dated January 4, 2007.
“Preferred
Return” shall mean a cumulative, accruing non-compounding
return rate equal to twelve percent (12%) per annum (with a minimum
total preferred return of six percent (6%)) calculated on the
average daily balance of the Unreturned Capital Contributions of
the Preferred Member from the date that such Capital Contributions
of the Ordinary Member are made until the Unreturned Capital
Contributions of such are returned in full to the Preferred Member
pursuant to the terms of Article 12 of this Agreement.
"Regulations" and
"Treasury Regulations" mean the final and temporary income tax
regulations promulgated under the Code, as such regulations may be
amended from time to time.
"Substituted
Member" means a Person to whom a Membership Interest (or portion
thereof) has been transferred and who has been admitted as a Member
of the Company with respect to such Membership Interest (or portion
thereof) pursuant to the terms hereof.
"Transfer" means,
with respect to a Membership Interest (or portion thereof), a
voluntary or involuntary sale, assignment, alienation, gift,
transfer, exchange, mortgage, pledge, grant of a security interest
in, or other disposition or encumbrance of such Membership Interest
(or portion thereof).
“Unreturned
Capital Contribution” shall mean, with respect to the
Preferred Member as of the date of this Agreement, an amount equal
to the aggregate Capital Contributions made by such Preferred
Member pursuant to Article 3 of this Agreement, less any amounts,
in the aggregate, returned to the Preferred Member pursuant to
Article 12 of this Agreement.
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ARTICLE 2 - ORGANIZATION
OF THE COMPANY
2.1 Formation and Organization of the
Company. The Members hereby ratify and, in all respects,
confirm the formation of the Company as an Illinois limited
liability company pursuant to the provisions of the Act. The
Company shall exist on the terms and conditions and for the
purposes stated herein and the rights and liabilities of the
Members shall be as provided herein. In the event of any
inconsistency between this Agreement and the Act, to the extent
permitted by applicable law, the terms of this Agreement shall
govern. The Members shall, from time to time, execute and file such
other certificates and documents as the Manager may deem necessary
or appropriate with respect to the formation of the Company and the
conduct of its activities.
2.2 Purpose. The purpose of the
Company is to engage in any activity for which limited liability
companies may be organized under the Act and to engage in such
other activities as may be necessary, suitable, advisable or
convenient for the accomplishment of the foregoing. The Company
shall possess and may exercise all of the powers and privileges
granted by the Act or by any other law or by this Agreement,
together with any powers incidental thereto, so far as such powers
and privileges are determined by the Manager to be necessary or
convenient to the conduct, promotion or attainment of the business
purposes or activities of the Company.
2.3 Principal Office of the
Company/Registered Agent.
(a) The principal place
of business and the principal office of the Company shall be
located at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx,
00000 or such other principal place of business or principal office
as the Manager may determine. The Company may have such other
offices as determined by the Manager from time to time. The Company
shall maintain its books and records at its principal office or at
such other place as determined by the Manager.
(b) The Company shall
at all times maintain a registered agent and a registered office in
the State of Illinois which shall be as selected by the
Manager.
ARTICLE 3 - CAPITAL
CONTRIBUTIONS; CAPITAL ACCOUNTS; TRANSFERS OF MEMBERSHIP
INTERESTS
3.1 Membership
Interests. The Members and their respective Percentage
Interests shall be set forth on Exhibit A hereto, which Exhibit
shall be amended by the Manager without the consent of any Member
to reflect the Members and their Percentage Interests whenever they
are changed pursuant to the terms of this Agreement (and any such
revision to Exhibit A shall not be considered to be an amendment to
this Agreement). The Membership Interest of each Person admitted as
a Member shall vest, and its interest in the Net Profit and Net
Loss shall commence to accrue, on the date that such Person is
admitted as a Member. No Member shall have any interest in the
property of the Company.
3.2 Capital Accounts. A capital
account (the "Capital Account") shall be established for each
Member on the books and records of the Company and shall be
maintained in accordance with the rules for determining and
maintaining capital accounts set forth in Treasury Regulations
Section 1.704-l(b)(2)(iv), as amended from time to time, or any
successor provision. No interest shall be paid or accrued at any
time on a Member's Capital Account or on any Capital Contribution.
Each Member shall have a single Capital Account reflecting its
entire Membership Interest, regardless of the time or times and the
manner in which the Membership Interest was acquired by the Member.
The Capital Accounts of the Members may be adjusted pursuant to, in
accordance with, and upon the occurrence of the events set forth in
Treasury Regulations Section 1.704-l(b)(2)(iv)(f) to reflect
revaluations of Company property if the Manager so chooses to
revalue the Company property and adjust the Capital Accounts and,
in such event, the Capital Accounts of the Members shall be
adjusted in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(g) for allocations
of depreciation, depletion, amortization and gain or loss, as
computed for book purposes, with respect to such property. A
transferee of a Membership Interest (or portion thereof) will
succeed to the Capital Account of the transferor to the extent it
relates to the Membership Interest (or portion thereof)
transferred. The foregoing provisions, and other provisions of this
Agreement relating to the maintenance of Capital Accounts and the
allocation of income, gain, loss, deduction and credit, are
intended to comply with Regulations Sections 1.704-l(b) and
1.704-2, and shall be interpreted and applied in a manner
consistent with such Regulations. If the Manager determines
that it is prudent to modify the manner in which Capital Accounts,
or any debits or credits thereto, are computed in order to comply
with those Regulations, the Manager may make such modification upon
written notice to all Members of such proposed modification. Any
such modification shall not require an amendment to this Agreement
or the approval of any Member.
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3.3 Return
of Capital Contribution. No Member shall have the right or
be entitled to demand, withdraw or receive any return of its
Capital Contributions, except as may be otherwise specifically
provided herein. In the event of circumstances requiring the return
of any Capital Contributions, no Member shall have the right or be
entitled to demand, withdraw or receive property other than cash,
except as may be otherwise specifically provided
herein.
3.4 Capital Contributions. Each
Member has heretofore made all Capital Contributions, if any,
required to be made by such Member. No Member shall be required to
make any additional Capital Contribution to the Company, and no
Member shall be permitted to make any additional Capital
Contribution without the consent of the Manager. The amount of each
Member's Capital Contributions, if any, shall be set forth in the
books and records of the Company. If at any time the Manager
determines to cause the Company to raise additional capital from
any one or more existing Members who agree to make additional
Capital Contributions to the Company, the Manager may cause the
Company do so, in which case the provisions of Section 10.2 shall
apply to each such contributing Member as if such contributing
Member was an additional Member being admitted as a Member of the
Company pursuant to Section 10.2 in connection with such Member's
additional Capital Contribution.
3.5 Loans.
The Manager may cause the Company to borrow funds from (i) a
third-party lender upon such terms and conditions as the Manager
and such third-party lender deem reasonable and appropriate under
the circumstances, or (ii) any Member upon such terms and
conditions as the Manager deems reasonable and appropriate. Any
loan by a Member to the Company shall be treated as indebtedness of
the Company, shall not be treated as a Capital Contribution by the
lending Member, and any interest paid by the Company on a loan from
a Member shall be treated as an interest expense of the Company for
all purposes, including the calculation of Net Profit and Net Loss.
No Member shall be required to make any loan to the
Company.
3.6 Lack
of Transferability of Membership Interests.
(a) No Member shall,
voluntarily or involuntarily, Transfer all or any portion of his
Membership Interest in the Company without the written consent of
the Manager, which consent may be withheld in the Manager's sole
and absolute discretion and which consent may be given by the
Manager after such Transfer has occurred. Notwithstanding the
foregoing, a Member may at any time, without the consent of the
Manager, transfer his Membership Interest, in whole or in part, to
any Permitted Transferee (so long as such transfer is exempt from
all applicable registration requirements under any federal or state
securities laws and such transfer would not otherwise violate any
federal or state laws regulating the transfer of securities) and,
notwithstanding the provisions of Section 3.7 hereof, such
Permitted Transferee shall become a Substituted Member with respect
to the Membership Interest Transferred upon satisfaction of the
requirements of Section 3.7(a)(iii). Further, if a Member dies or
is adjudicated to be incompetent or to be a disabled person, his
estate, executor, administrator, guardian, personal representative
or trustee who succeeds to all or any portion of such Member's
Membership Interest or to whom all or any portion of his Membership
Interest was transferred as a result of such death or adjudication
as incompetent or as a disabled person (each, a "Personal
Representative") shall have all the rights of a Member under this
Agreement as if such Personal Representative had become a
Substituted Member (including the right to vote on any matter with
respect to which such Member was permitted to vote, subject to any
limitations set forth in this Agreement) for the purpose of
settling or managing the estate of such Member and, in the event of
the death of a Member, said Personal Representative shall have the
power to and may Transfer said Member's Membership Interest (or any
portion thereof) to one or more Permitted Transferees without the
consent of the Manager and, notwithstanding the provisions of
Section 3.7 hereof, each such Permitted Transferee shall become a
Substituted Member with respect to the Membership Interest (or
portion thereof) Transferred upon satisfaction of the requirements
of Section 3.7(a)(iii). A Transfer of a Membership Interest (or
portion thereof) which is made without consent of the Manager if
such consent is required under this Section 3.6(a) constitutes a
material breach of this Agreement and shall be null and void for
all purposes and, if the Transfer involves a transfer of a
Membership Interest (or portion thereof), the Company shall not,
and shall not be required to recognize the interest of the
transferee and the transferee shall not be an Assignee; provided
however, that if, notwithstanding the foregoing, the Company is
required by law to recognize a transfer, the transferee shall be an
Assignee, and not a Member, with respect to the Membership Interest
(or portion thereof) transferred unless and until, if ever, the
transferee is admitted as a Substituted Member with respect to the
Membership Interest (or portion thereof) so transferred. In the
case of a Transfer or attempted Transfer that is made or attempted
to be made without consent of the Manager if such consent is
required under this Section 3.6(a), the parties engaging or
attempting to engage in such Transfer shall be liable to indemnify
and hold harmless the Company and the other Members from all cost,
liability, and damage that the Company and any of such indemnified
Members may incur (including, without limitation, attorney's fees
and expenses) as a result of such Transfer or attempted Transfer
and efforts to enforce the indemnity granted hereby. Each Member
hereby acknowledges the reasonableness of the restrictions on
Transfer of Membership Interests imposed by this Agreement in view
of the Company's purposes and the relationship of the Members.
Accordingly, the restrictions on Transfer contained herein shall be
specifically enforceable.
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(b) Each
Member hereby agrees not to petition any court for the involuntary
dissolution of the Company in the event that the Manager refuses to
approve the Transfer of a Membership Interest or any portion
thereof pursuant to Section 3.6(a) hereof.
3.7 Substituted
Member.
(a) An
Assignee that has not become a Substituted Member with respect to
the Membership Interest (or portion thereof) assigned shall not
have any of the rights of a Member under the Act or this Agreement
with respect to such Membership Interest (or portion thereof),
except that an Assignee shall be entitled to receive the share of
Net Profit and Net Loss of the Company and distributions to which
the assigning Member would have been entitled with respect to the
Membership Interest (or portion thereof) assigned. Except as
otherwise provided in this Agreement, the Assignee of a Member's
Membership Interest, or any portion thereof, shall be admitted to
the Company as a Substituted Member with respect to the Membership
Interest (or portion thereof) assigned upon:
(i) The written consent
of the Manager to the admission of the Assignee as a Member, which
consent may be withheld in the Manager's sole
discretion;
(ii) The
filing with the Company of a written instrument of assignment duly
executed and acknowledged by the assigning Member and the Assignee,
in reasonable form to effectuate such assignment;
(iii) The
execution and delivery by the Assignee of such instruments as the
Manager may reasonably deem necessary to acknowledge the acceptance
of and agreement by the Assignee to be subject to and bound by the
provisions of this Agreement and the execution and delivery by the
assignor and the Assignee of such other instruments as the Manager
may reasonably deem necessary or desirable to effect such
admission;
(iv) The
payment by the Assignee of all reasonable expenses and counsel fees
incurred by the Company in connection with the transaction;
and
(v) If requested by the
Manager, the delivery to the Company of an opinion of reputable
counsel reasonably acceptable to the Manager, prepared at the
assigning Member's or Assignee's expense, that the assignment does
not cause (A) a violation of the Securities Act of 1933, as amended
from time to time, or any other applicable Federal or state
securities laws; or (B) a breach or violation of or an event of
default under, or give rise to a right to accelerate any obligation
of the Company.
(b) After
all of the foregoing conditions have been fulfilled and the
Assignee has been admitted to the Company as a Substituted Member,
the Manager shall amend this Agreement without the consent of any
Member to the extent the Manager determines to reflect such
admission to the Company as a Substituted Member.
3.8 Obligations
and Rights of Assignees.
(a) Any Person who
acquires any Membership Interest (or any portion of any Membership
Interest) in any manner whatsoever, irrespective of whether such
Person has accepted and adopted in writing the terms and provisions
of this Agreement, shall be deemed by the acceptance of such
Membership Interest (or portion thereof) to have agreed to be
subject to and bound by all of the terms, conditions and
obligations of this Agreement.
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(b) Any
Person acquiring any Membership Interest (or any portion of any
Membership Interest) shall have only such rights as this Agreement
provides and, without limiting the generality of the foregoing,
such Person shall not have any right to partition of the Company's
assets or to have the value of its Membership Interest ascertained
or receive the value of such Membership Interest, or, in lieu
thereof, profits attributable to any right in the
Company.
(c) Notwithstanding
anything set forth in this Agreement to the contrary, an Assignee
shall be entitled to receive only the share of Net Profit, Net Loss
and distributions to which the assigning Member otherwise would be
entitled with respect to the Membership Interest (or portion
thereof) assigned. An Assignee of a Membership Interest (or portion
thereof) who has not been admitted as a Substituted Member with
respect to such Membership Interest (or portion thereof) shall have
no right to vote on any matter voted on by the Members with respect
to such Membership Interest (or portion thereof).
ARTICLE 4 - PROFIT AND
LOSS ALLOCATION; DISTRIBUTIONS
4.1 Net Profit and Net Loss
Allocation.
(a) Net Profit. For any fiscal year
in which the Company has a Net Profit, such Net Profit shall be
allocated among the Members as follows:
(i) First, to the
Members in proportion to, in the inverse order in which, and to the
extent of, the Net Losses previously allocated to them pursuant to
Sections 4.1(b)(i) and 4.1(b)(ii), until the cumulative amounts
allocated to each Member pursuant to this Section 4.l(a)(i) for
such fiscal year and all prior fiscal years are equal to the
cumulative Net Losses so allocated to such Member; and
(ii) The
balance, if any, to the Members, m proportion to their Percentage
Interests.
(b) Net Loss. For any fiscal year
in which the Company has a Net Loss, such Net Loss shall be
allocated among the Members as follows:
(i) First, to the
Members having positive balances in their Capital Accounts, in
proportion to the positive balances in their Capital Accounts,
until the positive balance in each such Member's Capital Account is
reduced to zero; and
(ii) The
balance, if any, to the Members m proportion to their Percentage
Interests.
(c) Changes in Percentage
Interests. Upon any change in the relative Percentage
Interests of the Members, whether by reason of the admission or
withdrawal of a Member, the transfer by any Member of all or any
part of its Membership Interest, the issuance of additional
Membership Interests to an existing Member, or otherwise, the
Members' shares of Net Profit, Net Loss and all other Company items
shall be determined by taking into account their varying Percentage
Interests using any permissible method under Code Section 706 and
the Treasury Regulations, as determined by the
Manager.
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(d) Qualified Income Offset. If a
Member unexpectedly receives any adjustments, allocations, or
distributions described in Treasury Regulations Section 1.704-
l(b)(2)(ii)(d)(4), Section l.704-l(b)(2)(ii)(d)(5) or Section
l.704-l(b)(2)(ii)(d)(6), any of which causes or increases a deficit
in such Member's Capital Account, then such Member shall be
specially allocated items of income and gain in an amount and
manner sufficient to eliminate, to the extent required by the
Treasury Regulations, the deficit in such Member's Capital Account
as quickly as possible; provided, however, that an allocation
pursuant to this Section 4.1(d) will be made if and only to the
extent that such Member would have a Capital Account deficit after
all other allocations provided for in this Section 4.1 have been
tentatively made as if this Section 4.1(d) were not in this
Agreement. This Section 4.1(d) is intended to constitute a
"qualified income offset" within the meaning of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
(e) Section 704(c) Allocation. In
accordance with Code Section 704(c) and the Treasury Regulations
thereunder, income, gain, loss, and deduction with respect to any
property contributed to the capital of the Company shall, solely
for tax purposes, be allocated among the Members so as to take
account of any variation between the adjusted basis of such
property to the Company for federal income tax purposes and its
fair market value at the time of contribution. In the event that
any Company asset is revalued as described in Section 3.2,
subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between
the adjusted basis of such asset for federal income tax purposes
and its fair market value in the same manner as required under
Section 704(c) of the Code and the Treasury Regulations thereunder.
Allocations pursuant to this Section are solely for purposes of
Federal, state, and local taxes and shall not affect, or in any way
be taken into account in computing, any Member's Capital Account or
share of allocations or distributions pursuant to any provision of
this Agreement.
4.2 Distributions. Distributions
shall be made by the Company, at such times and in such amounts as
the Manager shall determine after giving due consideration to the
reasonably foreseeable cash needs of the Company, to the Ordinary
Members in proportion to their Percentage Interests.
4.3 Tax Withholding. If the Company
incurs a tax withholding or tax payment obligation with respect to
the share of income allocated to any Member: (a) any amount which
is (i) actually withheld from a distribution that would otherwise
have been made to such Member and (ii) paid over in satisfaction of
such withholding tax obligation shall be treated for all purposes
under this Agreement as if such amount had been distributed to such
Member; and (b) any amount which is so paid over by the Company,
but which exceeds the amount, if any, actually withheld from a
distribution which would otherwise have been made to such Member,
shall be treated as an interest-free advance (subject to the other
provisions of this Section 4.3) to such Member. Amounts treated as
advanced to any Member pursuant to this Section 4.3 shall be repaid
by such Member to the Company within 30 days after the Manager or
any Member gives notice to such Member making demand therefor. Any
amounts so advanced and not timely repaid shall bear interest,
commencing on the expiration of said 30-day period, compounded
monthly on unpaid balances, at an annual rate of eight percent
(8.00%). The Company shall collect any unpaid advance amounts from
any future distributions that would otherwise be made to such
Member.
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ARTICLE 5 -
MANAGEMENT
5.1 Management of Company Affairs.
The management of the Company shall be vested in the Manager and it
shall have the exclusive authority to act for and bind the Company
in all matters. All rights and authority granted to the Manager
under this Agreement or the Act, and all decisions and
determinations to be made by the Manager hereunder, may be
exercised or made only upon the approval of the Manager at such
time, unless otherwise specifically provided in this Agreement. The
Manager shall have full, exclusive and complete discretion in the
management and control of the business and affairs of the Company
and shall make all decisions affecting the Company's business and
affairs, and any action taken by the Manager (in its capacity as
such) shall constitute the act of and serve to bind the Company.
Whenever this Agreement requires the prior approval or consent of
the Manager to any action or proposed action taken or to be taken
by a Member or by the Company with respect to a Member, the Manager
shall have the sole authority to grant or deny such approval or
consent even in situations where the Manager is such Member or an
affiliate of such Member, and the Members shall have no authority
to grant or deny approval or consent to such action or proposed
action. The Manager may delegate all or any of the powers and
authority granted to the Manager under the Act or this Agreement to
any other Person including, without limitation, the power to
execute and deliver documents on behalf of the Company, and any
action taken by such Person pursuant to such delegation shall be
deemed to be the act of the Manager. Persons dealing with the
Company shall be entitled to rely conclusively on the power and
authority of the Manager as set forth in this Agreement. The
Manager shall not be entitled to any fees or other compensation for
the performance of its duties as such. The Manager, on behalf and
at the expense of the Company, may hereafter from time to time
employ or transact business with any Person, including any Member,
notwithstanding the fact that any Member may be, or have a common
interest in or connection with such Person. In such instance,
neither the Company nor any other Member shall have any rights to,
or in, any income or profits derived therefrom. A Manager is not
required to be a Member.
5.2 Appointment and Replacement of
Manager. The Members hereby appoint GK as the Manager of the
Company. GK may not be removed as Manager and GK shall serve as
Manager until such time as it resigns. A Person other than GK
serving as Manager shall serve until such time as such Person dies,
is adjudicated to be a disabled person, is dissolved and commences
winding up (if such Person is not a natural person), resigns or, as
provided in the following sentence, is removed. Any Manager, other
than GK, may be removed at any time and for any or no reason by a
Majority In Interest. A Manager may resign at any time by giving
written notice to the Company. The resignation of a Manager shall
take effect upon receipt of notice thereof or at such later date
specified in such notice and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make
it effective. If at any time a Manager ceases to be a Manager of
the Company for any reason, then a Majority In Interest shall have
the right to appoint a replacement Manager.
5.3 Manager Liability.
Notwithstanding anything herein to the contrary, the Manager shall
not be liable to the Company or any Member (i) for mistakes of
judgment, or for other acts or omissions not amounting to fraud,
willful misconduct or gross negligence or for losses or liabilities
due to such mistakes or other acts or omissions, so long as it
acted in good faith, or (ii) due to the negligence, dishonesty or
bad faith of any agent, employee or independent contractor retained
or engaged to provide services, provided that reasonable care was
exercised in selecting, employing, supervising or appointing such
person.
9
5.4 Members.
(a) No Member shall:
(i) apply to any court to decree termination, dissolution and/or
liquidation of the Company claiming it is not reasonably
practicable to carry on the Company's business in conformity with
the Articles of Organization of the Company and/or this Agreement;
or (ii) petition any court for the involuntary dissolution of the
Company on the grounds of division or dissension of the
Members.
(b) No Member may
resign, withdraw or otherwise dissociate from the Company, except
with the prior written consent of the Manager or by transfer or
other disposition of all of its Membership Interest in accordance
with the terms of this Agreement. Any resignation, withdrawal or
dissociation or attempt to so resign, withdraw or dissociate not in
accordance with the preceding sentence shall be wrongful. Any
Member purporting to resign, withdraw or dissociate from the
Company shall have no right to demand a distribution of its Capital
Account balance, the return of all or any portion of its Capital
Contributions or any payment for its Membership Interest.
Furthermore, notwithstanding anything in the Act to the contrary,
in the event that a Member resigns, withdraws or dissociates or is
deemed to have resigned, withdrawn or dissociated, the Company
shall not be obligated to purchase such Member's Membership
Interest or any portion thereof or to otherwise pay to such Member
the fair value of its Membership Interest or any other payment or
distribution except as specifically provided in this
Agreement.
(c) Except as may
otherwise be provided in this Agreement, whenever any matter is to
be decided, determined, agreed upon or otherwise approved by the
Members, such matter shall be considered decided, determined,
agreed upon or otherwise approved upon the affirmative vote of a
Majority In Interest. A Membership Interest (or portion thereof)
held by an Assignee who has not been admitted as a Substituted
Member with respect to such Membership Interest (or portion
thereof) shall be considered as having a Percentage Interest of
zero percent (0%) for purposes of determining a Majority In
Interest or other proportion of Percentage Interests for voting
purposes.
(d) No Member shall be
an agent of the Company for purposes of its business, or shall have
any authority to bind the Company, except as such authority shall
be expressly delegated to such Member by the Manager.
5.5 Meetings of
Members.
(a) Meetings of the
Members, if any, shall be held at the principal office of the
Company, unless some other appropriate and convenient location
shall be designated for that purpose from time to time by the vote
of the Members; provided that the Members may participate in any
such meeting by means of conference telephone or similar
communications equipment pursuant to paragraph (f)
below.
(b) Meetings of the
Members may be called by the Manager or by a Majority In Interest.
A Majority In Interest shall constitute a quorum at any meeting of
Members. If a quorum is present, the affirmative vote of a Majority
In Interest shall be the act of the Members, unless this Agreement
requires the vote of a different proportion of Members to approve
certain matters.
(c) Notice of meetings
shall be given to the Members in writing not less than two business
days before the date of the meeting. Notice of any meeting of
Members shall specify the place, the day and the hour of the
meeting, and the general nature of the business to be
transacted.
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(d) The actions that
are taken at a meeting of Members which was not called or noticed
pursuant to the provisions of paragraph (c) above shall be valid as
though transacted at a meeting duly held after regular call and
notice, if all of the Members are present.
(e) Any action which
may be taken at any meeting of Members may be taken without a
meeting if a consent in writing, setting forth the action so taken,
is signed by Members holding not less than the minimum Percentage
Interests that would be necessary to take such action at a meeting
at which all of the Members holding all of the Percentage Interests
were present and voted. Written notice of any action taken by
consent of the Members pursuant to this Section 5.5(e) shall be
given to any Member who did not participate in such consent within
ten days following the taking of such action. A photographic,
photostatic, facsimile or similar reproduction of a writing signed
by a Member shall be regarded as signed by the Member for purpose
of this Section.
(f) Members entitled to
vote may participate m and hold a meeting by conference telephone
or similar communications equipment by means of which all Members
participating in the meeting can hear each other, and participation
in such meeting shall constitute attendance and presence in person
at such meeting.
(g) When any notice is
required to be given to any Member, a waiver thereof in writing
signed by the person entitled to such notice, whether before, at,
or after the time stated therein, shall be equivalent to the giving
of such notice.
5.6 Independent Activities. The
Manager shall not be required to manage the Company as its sole and
exclusive function. In addition, the Members and the Manager may,
notwithstanding this Agreement, engage in whatever activities they
choose, whether the same as or competitive with those engaged in by
or the business of the Company or otherwise, without having or
incurring any obligation to offer any interest in such activities
to the Company or any other Member. Neither this Agreement nor any
activity undertaken pursuant hereto shall prevent any Member or
Manager from engaging in such activities, or require any Member or
Manager to permit the Company or any other Member to participate in
any such activities, and as a material part of the consideration
for the execution of this Agreement by each Member, each Member
hereby waives, relinquishes, and renounces any such right or claim
of participation.
ARTICLE 6 - LIABILITY,
EXPENSES AND INDEMNIFICATION
6.1 Exculpatory Provision. Except
as otherwise provided herein, no Member or Manager, and none of
their respective affiliates, employees, officers, directors,
shareholders, partners, members, and managers, and their respective
successors, executors, administrators or personal representatives
(each, an "Indemnified Person") shall be liable, responsible or
accountable to the Company or any Member for any expenses, damages,
losses or liabilities sustained by any Member or the Company other
than such expenses, damages, losses or liabilities which are the
result of such Indemnified Person not acting in good faith, or are
the result of fraud, willful misconduct or gross negligence of or
by such Indemnified Person. In the event the Company or any
Indemnified Person is made a party to any litigation or otherwise
incurs any loss, liability, damage, cost or expense (including
reasonable attorneys' fees) as a result of or in connection with
(i) any Member's personal obligations or liabilities unrelated to
Company business, or (ii) any Member not acting in good faith
relating to, or any Member's fraud, gross negligence or willful
misconduct relating to Company business, such Member shall
indemnify and reimburse the Company and/or Indemnified Persons, as
the case may be, for all such loss and expense incurred, including
reasonable attorneys' fees, and the interest of such Member in the
Company may be charged therefor. Except with respect to the
foregoing, no Member shall be liable for the debts, liabilities,
contracts or any other obligations of the Company beyond that
Member's Capital Contribution. No Member shall have any personal
liability for the repayment of the Capital Contribution of any
other Member. Any obligation of a Member to return or repay funds
to the Company hereunder or under the Act shall be the obligation
of such Member and not of the remaining Members.
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6.2 Indemnification of Indemnified
Persons. The Company and its successors and assigns shall
indemnify each Indemnified Person from and against any losses,
claims, demands, costs, damages, liabilities, expenses of any
nature (including reasonable attorneys' fees and disbursements),
judgments, fines, settlements and other amounts arising from any
and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative ("Claims"), in
which the Indemnified Person was involved or may be involved, or
threatened to be involved, as a party or otherwise, arising out of
or incidental to the business of the Company, to the fullest extent
permitted by law if such Indemnified Person acted in good faith,
unless such Claims arose out of an act or omission of such
Indemnified Person which was performed or omitted fraudulently or
constituted fraud, willful misconduct or gross negligence. The
indemnification shall continue as to a Person who/that has ceased
to be a Member or Manager or otherwise hold a position coming
within the above definition of Indemnified Person, and shall inure
to the benefit of the heirs, successors and/or personal
representatives of such Person.
6.3 Advance Payment of Expenses.
The Company shall pay expenses incurred by an Indemnified Person in
defending a civil or criminal action, suit or proceeding as they
are incurred in advance of the final disposition of the action,
suit or proceeding, if it receives an undertaking by or on behalf
of the Indemnified Person to repay any portion of amounts advanced
under this Section in excess of the amount ultimately determined to
be payable by the Company to the Indemnified Person under Section
6.2 above. This provision shall not affect any other right of any
Indemnified Person for advancement of expenses under any other
provision of this Agreement, any other agreement, or otherwise by
law.
6.4 No Member Liability. Any
indemnification obligation of the Company under this Article 6
shall be satisfied solely out of the assets of the Company. No
Member shall be subject to personal liability or required to fund
or to cause to be funded any indemnification obligation of the
Company.
ARTICLE 7 - TITLE TO
PROPERTY; BANK ACCOUNTS; TAX RETURNS
7.1 Title to Property; Bank
Accounts. All property of the Company shall be held in the
name of the Company or in the name of a nominee or trustee selected
by the Manager. Funds of the Company shall be deposited in the name
of the Company in such bank account or accounts as shall be
designated by Manager. All checks, drafts and other orders for the
payment of money issued in the name of the Company shall be signed
by such Person or Persons as are selected by the
Manager.
7.2 Tax Returns and Elections. The
Company shall cause to be prepared and timely filed (including
extensions permitted by law) all tax returns and schedules required
to be filed by the Company and shall furnish to the Members a
Schedule K-1 and any additional or substitute forms or schedules
required to enable each Member to timely file (including extensions
permitted by law) such Member's federal and state income tax
returns for each taxable year of the Company during which such
Member holds a Membership Interest. The Manager may make any and
all elections for federal, state and local tax purposes, including,
without limitation, any election under Code Section 754 and related
provisions.
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7.3 Tax Representative; Tax Treatment as
Partnership.
(a) The Manager shall
cause the Company to designate a Person to serve as the Company's
designated "partnership representative" within the meaning of Code
Section 6223 (the "Tax Representative") with sole authority to act
on behalf of the Company for purposes of Subchapter C of Chapter 63
of the Code and any comparable provisions of state or local income
tax laws and the Company and the Members shall complete any
necessary actions (including executing any required certificates or
other documents) to effect the appointment of the Person so
appointed as the Tax Representative. GK shall be the Company's
initial Tax Representative, provided that the Manager may at any
time revoke a Person's designation as the Company's Tax
Representative and designate a replacement Tax Representative, and
any Person serving as the Tax Representative may resign at any time
by giving notice to the Manager and as otherwise required by law.
Without limiting the Tax Representative's general authority, the
Tax Representative may make any elections available to be made as a
partnership representative within the meaning of Code Section 6223
including, without limitation, the election described in Code
Section 6226(a)(l). In the event an election under Code Section
6226(a)(l) is made, the Company shall determine each current and
former Member's share of adjustments (as contemplated by Section
6226(a)(2), as so in effect) in a fair and equitable manner, based
on the allocations that would have been made to each such Member
in the "reviewed
year" (as defined in Code Section 6225(d)) (and any subsequent
year) if the adjustments were taken into account by the Company in
such year(s), subject to any future guidance promulgated under the
Code. If the Company receives a notice of a proposed partnership
adjustment with respect to the Company and the Tax Representative
has not caused the Company to make the election under Code Section
6226, then (i) the Members (including former Members) shall take
such actions as may be requested by the Tax Representative,
including filing amended tax returns and paying any tax due in
accordance with Code Section 6225(c)(2) and providing such
information as the Tax Representative may request to substantiate
Company level modifications under Code Section 6225(c), (ii) the
Tax Representative shall use commercially reasonable efforts to
make any modifications available under Code Sections 6225(c)(3),
(4) and (5), and (iii) any imputed underpayment (as determined in
accordance with Code Section 6225) paid (or payable) by the Company
as a result of an adjustment with respect to any Company item,
including any interest or penalties with respect to any such
adjustment (collectively, an "Imputed Underpayment Amount") shall
be treated as if it were paid by the Company as an amount paid
pursuant to Section 4.3 with respect to the appropriate Member. The
Tax Representative shall determine the portion of an Imputed
Underpayment Amount (or partnership adjustment that does not result
in an imputed
underpayment) attributable to each Member or former Member, based
on the allocations that would have been made to each such Person in
the reviewed year (and any subsequent year) if the adjustments were
taken into account by the Company in such year(s), subject to any
future guidance promulgated under the Code. The portion of the
Imputed Underpayment Amount that the Company attributes to a former
Member shall be treated as an amount paid by the Company pursuant
to Section 4.3 with respect to both such former Member and such
former Member's transferee(s), as applicable, and the Company's
rights pursuant to this Agreement may be exercised in respect of
either or both of the former Member and its transferee(s). The
obligations of each Member or former Member under this Section 7.5
shall survive the Transfer by such Member of its Membership
Interest, the termination of this Agreement or the dissolution of
the Company.
(b) The Company shall
indemnify and reimburse the Tax Representative for all expenses,
including legal and accounting fees, claims, liabilities, losses,
and damages incurred in connection with any administrative or
judicial proceeding at the Company level, except for any liability
created or imposed for fraud, bad faith, willful neglect or gross
negligence. The payment of all such expenses shall be made before
any distributions are made to Members or any discretionary reserves
are set aside by the Managers. The taking of any action and the
incurring of any expense by the Tax Representative in connection
with any such proceeding, except to the extent required by law, is
a matter in the sole discretion of the Tax Representative and the
provisions on limitations of liability and indemnification set
forth herein shall be fully applicable to the Tax Representative in
its capacity as such.
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(c) The Company shall
be treated as a partnership for federal income tax purposes. The
Members are aware of the income tax consequences of the allocations
made by this Agreement and hereby agree to be bound by the
provisions of this Agreement in reporting their shares of Net
Profit, Net Loss and other items for income tax
purposes.
ARTICLE 8 - TERM OF THE
COMPANY; TERMINATION OF THE COMPANY
8.1 Term. Unless the Company is
earlier dissolved and terminated as provided in Section 8.2, the
Company shall continue in perpetuity.
8.2 Events of Dissolution. The
Company shall dissolve and the winding up of the Company's affairs
and the liquidation of the assets of the Company shall commence
only upon the first to occur of (a) the decision of the Manager to
dissolve, wind up and liquidate the Company, or (b) as otherwise
provided by law, unless the Company is continued as permitted under
law.
8.3 Liquidation and Winding Up.
Upon the dissolution of the Company, the Manager shall carry out
the liquidation and winding up of the Company in an orderly manner;
provided, however, that a reasonable time shall be allowed for the
orderly liquidation of the assets of the Company and the
satisfaction of liabilities to creditors. The Members shall
continue to share allocations of Net Profit and Net Loss during
liquidation in accordance with the provisions of Article 4. After
the Company's assets which are to be liquidated have been
liquidated, the cash proceeds therefrom, plus any Company assets
not liquidated, shall be applied and distributed in the following
order and priority:
(a) first, to
creditors, including Members who are creditors (to the extent
otherwise permitted by law), in satisfaction of all of the debts
and liabilities of the Company (including, without limitation,
expenses of liquidation) whether by payment or the making of
reasonable provision for payment thereof, including the creation of
reserves for contingencies which the Manager determines to be
necessary, and any such reserves which shall remain after the
expiration of any time period during which the Manager determines
to maintain such reserves, shall be distributed in accordance with
Section 8.3(b); and
(b) the balance, if
any, to the Members in accordance with the positive balances in
their Capital Accounts, after giving effect to all contributions,
distributions and allocations for all periods.
8.4 Termination. The Company shall
terminate when all of the assets of the Company, after payment of
or due provision for all debts, liabilities and obligations of the
Company, shall have been distributed to the Members in the manner
provided for in this Article 8 and Articles of Dissolution shall
have been filed in the manner required by the Act.
8.5 Claims of Members. Upon
dissolution of the Company, the Members shall look solely to the
Company's assets for the return of their Capital Contributions and
the repayment of any loans to the Company, 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 or repay such loans, the Members
shall have no recourse against the Company or any other Member. No
Member shall be required to pay to the Company or any Member or
other Person any deficit or negative balance which may exist in
such Member's Capital Account from time to time or upon liquidation
of the Company. A negative Capital Account shall not be considered
a loan from or an asset of the Company.
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ARTICLE 9 -
REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties.
Each Member hereby represents and warrants, each on its own behalf
only that (a) the execution and delivery by such Member of this
Agreement and all related agreements and the performance of such
Member's obligations hereunder and the performance of any other
actions of such Member pursuant to or in furtherance of the
Company's business or purposes (i) are within such Member's power;
(ii) are not in contravention of the terms of any indenture,
agreement or undertaking to which such Member is a party or by
which such Member or any of its property is bound; (iii) do not, as
of the date of execution hereof, require the consent, registration
or approval of or with any Person; and (iv) do not contravene any
contractual or other restriction of any governmental authority or
other Person binding upon such Member, or any statute, regulation,
judgment, order, writ, decree, or injunction currently applicable
to such Member, (b)(i) it has knowledge and experience in financial
and business matters, is capable of evaluating the merits and risks
of an investment in the Company and it has had access to such
information concerning the Company as it deems necessary to enable
it to make, and it is making an informed investment decision with
respect thereto; (ii) it understands and accepts that the purchase
of a Membership Interest involves certain risks, including the risk
of losing its entire investment and risks associated with holding
the Membership Interest for an indefinite time due to the
restrictions on transferability and it is able to bear the economic
and financial risk of an investment in the Company for an
indefinite period of time; (iii) it is acquiring its Membership
Interest for investment only and not with a view to, or for resale
in connection with, any distribution to the public or public
offering thereof; (iv) it confirms that neither the Company nor any
Member has given any guarantee or representation as to the
potential success, return, suitability, effect or benefit of an
investment in the Company, in deciding to invest in the Company the
Member is not relying on the advice or recommendations of the
Company or any other Member, and the Member has made its own
independent decision that the investment in the Company is suitable
and appropriate for the Member; and (v) it acknowledges that the
Membership Interests have not been registered under the securities
laws of any jurisdiction, and cannot be transferred unless they are
subsequently registered or otherwise qualified under applicable
securities laws (unless an exemption from such registration or
other qualification is available) and the provisions of this
Agreement governing transfers of Membership Interests have been
complied with, and (c) this Agreement is a valid and binding
agreement of such Member enforceable against such Member in
accordance with its terms, subject as to enforcement to bankruptcy,
insolvency and other laws of general applicability relating to or
affecting creditors' rights and to general equitable
principles.
ARTICLE 10 - AMENDMENT;
ADDITIONAL MEMBERS
10.1 Amendments.
This Agreement may be amended only with the consent of the Manager
and the Manager can amend this Agreement at any time without the
consent of any Member.
10.2 Additional
Members. The Manager may at any time cause the Company to
admit additional Members and issue Membership Interests to such
additional Members. Any new Membership Interests in the Company
shall be issued to additional Members for such consideration, if
any, as the Manager shall determine and such Membership Interests
shall be on such terms and shall have such characteristics (which
may be different than those of the then outstanding Membership
Interests) as the Manager shall determine and the then existing
Members' Percentage Interests shall be adjusted to reflect the
changes thereto resulting from the admission of such additional
Member(s), and such changes to the Percentage Interests shall be
made in any manner as the Manager reasonably determines to be
equitable. No additional Members shall be entitled to any
retroactive allocation of profits, losses, income, deduction or
other Company items.
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ARTICLE 11 -
MISCELLANEOUS PROVISIONS
11.1 Notices.
Except as may be otherwise provided herein, any notice or writing
required or desired to be given hereunder shall be in writing and
shall be given in person, by a nationally recognized overnight
courier, by first-class certified or registered mail, return
receipt requested and postage prepaid, or by facsimile transmission
or email transmission, and shall become effective: (a) on delivery,
if delivered in person; (b) on the earlier of delivery or two
business days after deposited in the mails, if deposited in the
mails and properly addressed to the party to be notified; (c) one
business day after deposit with a nationally recognized overnight
courier for delivery the next business day or sooner and properly
addressed to the party to be notified; (d) when proof of successful
transmission to the correct facsimile number has been received by
the sender of the notice, if sent by facsimile transmission prior
to 5:00 P.M. local time (determined based on the recipient's street
address) or, if not sent prior to 5:00 P.M. local time, then at the
beginning of the next business day after the day sent; or (e) when
sent by email transmission if sent prior to 5:00 P.M. local time
(determined based on the recipient's street address) or, if not
sent prior to 5:00 P.M. local time, then at the beginning of the
next business day after the day sent. Notices or writings to be
delivered to the Company or the Manager shall be sent to the
address or facsimile number of the principal office of the Company,
and notices or writings to be delivered to a Member shall be sent
to the address and facsimile number for such Member as reflected in
the Company's records, or to such other address as such Member
shall have designated by written notice to the Company and the
other Members in accordance with this Section 11.1.
11.2 Relationship
of the Members/No Partnership Intended For Non-Tax
Purposes.
(a) The Members
acknowledge that the Company was formed under the Act and the
Members expressly do not intend hereby to form a partnership. No
Member intends to be a partner of the other Member, or a partner as
to any third party. To the extent any Member, by word or action,
represents to another Person that any other Member is a partner or
that the Company is a partnership other than solely for federal or
state income tax purposes, the Member making such wrongful
representation shall be liable to any other Member which incurs
personal liability or expense by reason of such wrongful
representation.
(b) Except as otherwise
set forth in this Agreement, no Member has any authority or right
to assume or create any obligation or liability of any nature,
express or implied, in the name of or on behalf of any other Member
or the Company.
11.3 Successors
and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the parties to this Agreement and their
respective administrators, executors, legal representatives, heirs,
successors, and assigns.
11.4 Construction
of Agreement. This Agreement will be construed and enforced
in accordance with the internal laws of the State of Illinois,
without application of conflict of laws principles.
11.5 Severability.
In the event any provision of this Agreement shall be held to be
invalid, illegal or unenforceable in any respect by a court,
arbitration tribunal or administrative body of competent
jurisdiction, then this Agreement shall continue in full force and
effect except for such provision, which shall be deemed to be
excised from this Agreement ab
initio. In such event, the Members agree to use their best
efforts to agree on substitute provisions which will achieve as
closely as possible the same results for the Members as the invalid
provision(s) without being invalid under applicable
law.
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11.6 Entire
Agreement. This Agreement represents the entire
understanding between the Members with respect to the subject
matter hereof and supersedes all prior agreements, whether written
or oral, with respect to the subject matter hereof.
11.7 No
Waiver. The failure of any Member or the Manager to enforce
this Agreement, to object to the failure on the part of any other
Member to perform any term or condition of this Agreement, or to
require the performance by any other Member of any term or
condition of this Agreement, or any delay in doing so, shall not
constitute a waiver thereof.
11.8 Exhibits.
The Exhibits hereto are an integral part of this Agreement and all
references herein to this Agreement shall encompass such
Exhibits.
11.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Copies of signatures,
and signatures hereto transmitted by facsimile or by attachment to
email transmission or otherwise electronically, shall have the
effect of originals.
11.10 Headings.
The inserted headings are for convenience only and should not be
used to construe or interpret this Agreement.
11.11 Pronouns
and Plurals. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine,
feminine and neuter forms, and the singular form of nouns, pronouns
and verbs shall include the plural and vice versa. In this
Agreement, unless otherwise specifically stated, "hereof,"
"herein," "hereto," "hereunder" and the like mean and refer to this
Agreement as a whole and not merely to the specific section,
paragraph or clause in which the word appears, "including" means
including without limitation, and any statement herein that the
Manager may take an action "in its sole discretion", "in its
discretion" or the like shall not be interpreted to mean that any
other action may not be taken in the Manager's discretion, unless
otherwise specifically stated.
11.12 Further
Documents and Actions. Each of the Members will, at the
reasonable request of the Manager, execute and deliver all such
further instruments, assignments, assurances and other documents,
and take such further actions, as the Manager may reasonably
request and which are necessary for the consummation of the
transactions contemplated by this Agreement, provided that the
duties, obligations and liabilities of the Members executing and
delivering such instruments, assignments, assurances or other
documents thereunder shall be consistent with the terms of this
Agreement.
11.13 Compensation.
The Company shall reimburse the Manager for all out of pocket
expenses incurred by the Manager on behalf of the Company in
connection with the business and affairs of the Company. The
Company may pay reasonable compensation to the Manager for services
performed by it on behalf of the Company. Without limiting the
foregoing, the Company shall pay fees and commissions to GK or its
designee for property management, leasing, acquisition, disposition
and any brokerage type of services. All of such fees and
commissions shall be paid to GK or its designee notwithstanding
that GK may at such time no longer be a Manager of the
Company.
11.14 Partition.
The Members agree that the property that the Company may own or
have an interest in is not suitable for partition. Each of the
Members hereby irrevocably waives any and all rights that it may
have to maintain any action for partition of any property the
Company may at any time have an interest in.
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11.15 Benefits
of Agreement; No Third-Party Rights. None of the provisions
of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company, by any creditor of any Member or by any
third party, this Agreement shall not be deemed to create any right
in any person or entity not a party hereto, and this Agreement
shall not be construed in any respect to be a contract in whole or
in part for the benefit of any third party; provided, however, that
notwithstanding the foregoing, each Manager that is not a Member,
and its respective heirs, successors and/or personal
representatives is a third party beneficiary of this Agreement and
shall have the right to take any and all actions necessary to
enforce the provisions of this Agreement to the extent that they
confer any rights upon such Manager.
11.16 Power
of Attorney. Each Member hereby constitutes and appoints the
Manager and its designees, with full power of substitution, as his,
her or its true and lawful agent and attorney-in-fact, with full
power and authority in his, her or its name, place and stead, to
execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (a) this Agreement, all certificates and
other instruments and all amendments thereof in accordance with the
terms hereof which the Manager deems appropriate or necessary to
form, qualify, or continue the qualification of, the Company as a
limited liability company in the State of Illinois and in all other
jurisdictions in which the Company may conduct business or own
property; (b) all instruments which the Manager deems appropriate
or necessary to reflect any amendment, change, modification or
restatement of this Agreement in accordance with its terms; (c) all
conveyances and other instruments or documents which the Manager
deems appropriate or necessary to reflect the dissolution and
liquidation of the Company pursuant to the terms of this Agreement;
and (d) all instruments relating to the admission, withdrawal,
substitution or change in Percentage Interest of any Member
pursuant to the terms of this Agreement. The foregoing power of
attorney is irrevocable and coupled with an interest, and shall
survive the death, disability, incapacity, dissolution, bankruptcy,
insolvency or termination of any Member and the Transfer of all or
any portion of its Membership Interest and shall extend to such
Member's heirs, successors, assigns and personal
representatives.
11.17 Members
Acknowledgement. The Members hereby acknowledge and agree
that: (i) this Agreement was prepared for the benefit of the
Company and GK, and not for any Member; (ii) the interests of the
Members may be opposed to each other and may be opposed to the
interests of the Company; (iii) each of the Members are been
afforded the opportunity to retain separate legal counsel to review
this Agreement prior to its execution and they do so at their free
will with an understanding of the terms and provisions of this
Agreement. By signing this Agreement, the Members acknowledge that
they (w) understand the terms of this Agreement, (x) are entering
into this Agreement voluntarily and after having been afforded an
opportunity to review this Agreement with an attorney of their own
selection, (y) have been advised to retain separate counsel and
have either retained separate counsel or waived their right to do
so at this time, and (z) jointly and severally forever waive any
claim against the Company and GK hereunder.
ARTICLE 12 - PREFERRED MEMBER
DISTRIBUTIONS & REDEMPTION
Notwithstanding
anything to the contrary as set forth in this Agreement, at any
time (and from time to time as directed by the Preferred Member )
prior to a distribution being made by the Company in accordance
with the terms and provisions of Article 4, Section 4.2 of this
Agreement, the Preferred Member shall have the right to direct the
Manager to distribute any cash that would have otherwise been
distributed to the Ordinary Members pursuant to Section 4.2 to the
Preferred Member in an amount up to the unpaid Preferred Return
plus (1) the Preferred Member’s aggregate Unreturned Capital
Contributions; and (2) an amount equal to 3% of the Preferred
Member’s aggregate Capital Contributions (the “Capital
Premium”). Unless otherwise consented to by the Preferred
Member, the Company shall distribute the amount of any Additional
Ordinary Contribution received by the Company to the Company to:
(1) first, pay any unpaid Preferred Return; (2) second, pay any
unpaid Capital Premium; and (3) third, return any Unreturned
Capital Contributions. Upon distribution to the Preferred Member,
pursuant to either of the foregoing sentences of this Article 12,
of aggregate amounts equalling the Preferred Member’s
Preferred Return (taking into the minimum Preferred Return of 6%),
plus the Capital Premium, plus the aggregate Capital Contributions
made to the Company by the Preferred Member, the Preferred
Member’s Membershp Interest shall be deemed redeemed without
the need for any further action on behalf of the Preferred Member
or the Company.
[End of text of Operating Agreement; signature page
follows]
18
IN
WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement of RF Grocery, LLC as of the date first set forth
above.
Manager
GK
DEVELOPMENT, INC.,
an
Illinois Corporation, d/b/a GK Real Estate
By: /s/
Garo Kholamian__
Name:
XXXX XXXXXXXXX
Title:
President
Members:
Preferred
Member:
XXXX XXXXXXXXX REVOCABLE
TRUST
dated January 4, 2007
By: /s/ Garo
Kholamian______
XXXX
XXXXXXXXX, Trustee
Ordinary
Member:
GK
INVESTMENT PROPERTY HOLDINGS II, LLC
a
Delaware limited liability company
By: /s/ Garo
Kholamian_______
Signature page to Operating Agreement of RF Grocery,
LLC
19
EXHIBIT A
|
Name
of Member
|
Percentage
Interest
|
|
|
|
|
Preferred Member:
|
|
|
XXXX XXXXXXXXX REVOCABLE TRUST
|
100% Preferred Member Class
|
|
|
|
|
|
|
|
Ordinary Member:
|
|
|
GK
INVESTMENT PROPERTY HOLDINGS II, LLC
|
|
|
a
Delaware limited liability company
|
100%
Ordinary Member Class
|
|
|
|
|
|
|
|
TOTAL MEMBERSHIP INTEREST:
|
100%
|
20
