AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BR HAWTHORNE SPRINGHOUSE JV, LLC A DELAWARE LIMITED LIABILITY COMPANY
Exhibit 10.5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BR HAWTHORNE SPRINGHOUSE JV, LLC
A DELAWARE LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
Page | ||
Section 1. | Definitions | 2 |
Section 2. | Organization of the Company | 6 |
2.1 | Name | 6 |
2.2 | Place of Registered Office; Registered Agent | 7 |
2.3 | Principal Office | 7 |
2.4 | Filings | 7 |
2.5 | Term | 7 |
2.6 | Expenses of the Company | 7 |
Section 3. | Purpose | 7 |
Section 4 | Reserved | 7 |
Section 5. | Capital Contributions, Loans, Percentage Interests and Capital Accounts | 7 |
5.1 | Capital Contributions | 7 |
5.2 | Additional Capital Contributions | 8 |
5.3 | Percentage Ownership Interest | 9 |
5.4 | Return of Capital Contribution | 9 |
5.5 | No Interest on Capital | 9 |
5.6 | Capital Accounts | 9 |
5.7 | New Members | 10 |
Section 6. | Distributions | 11 |
6.1 | Distribution of Distributable Funds | 11 |
6.2 | Distributions in Kind | 11 |
Section 7. | Allocations | 11 |
7.1 | Allocation of Net Income and Net Losses Other than in Liquidation | 11 |
7.2 | Allocation of Net Income and Net Losses in Liquidation | 11 |
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7.3 | U.S. Tax Allocations | 12 |
Section 8. | Books, Records, Tax Matters and Bank Accounts | 12 |
8.1 | Books and Records | 12 |
8.2 | Reports and Financial Statements | 13 |
8.3 | Tax Matters Member | 13 |
8.4 | Bank Accounts | 14 |
8.5 | Tax Returns | 14 |
8.6 | Expenses | 14 |
Section 9. | Management | 14 |
9.1 | Management | 14 |
9.2 | Affiliate Transactions | 15 |
9.3 | Other Activities | 15 |
9.4 | Operation in Accordance with REOC/REIT Requirements | 15 |
9.5 | FCPA | 18 |
Section 10. | Confidentiality | 18 |
Section 11. | Representations and Warranties | 19 |
11.1 | In General | 19 |
11.2 | Representations and Warranties | 19 |
Section 12. | Sale, Assignment, Transfer or other Disposition | 22 |
12.1 | Prohibited Transfers | 22 |
12.2 | Affiliate Transfers | 23 |
12.3 | Admission of Transferee; Partial Transfers | 24 |
12.4 | Withdrawals | 25 |
Section 13. | Dissolution | 25 |
13.1 | Limitations | 25 |
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13.2 | Exclusive Events Requiring Dissolution | 25 |
13.3 | Liquidation | 26 |
13.4 | Continuation of the Company | 26 |
Section 14. | Indemnification | 27 |
14.1 | Exculpation of Members | 27 |
14.2 | Indemnification by Company | 27 |
14.3 | General Indemnification by the Members | 27 |
Section 16. | Miscellaneous | 28 |
16.1 | Notices | 28 |
16.2 | Governing Law | 29 |
16.3 | Successors | 30 |
16.4 | Pronouns | 30 |
16.5 | Table of Contents and Captions Not Part of Agreement | 30 |
16.6 | Severability | 30 |
16.7 | Counterparts | 30 |
16.8 | Entire Agreement and Amendment | 30 |
16.9 | Further Assurances | 30 |
16.10 | No Third Party Rights | 30 |
16.11 | Incorporation by Reference | 30 |
16.12 | Limitation on Liability | 31 |
16.13 | Remedies Cumulative | 31 |
16.14 | No Waiver | 31 |
16.15 | Limitation On Use of Names | 31 |
16.16 | Publicly Traded Partnership Provision | 31 |
16.17 | Uniform Commercial Code | 32 |
16.18 | No Construction Against Drafter | 32 |
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BR HAWTHORNE SPRINGHOUSE JV, LLC
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
This Amended and Restated Limited Liability Company Agreement (this “Agreement”) is adopted, executed and agreed to effective on December 1, 2016, by and among BR Springhouse Managing Member, LLC, a Delaware limited liability company (“BR I”); BR Springhouse TRS, LLC, a Delaware limited liability company (“BR II”), and Xxxxxxx Co-Invest IV Roswell, LLC, a Georgia limited liability company (“Xxxxxxx Member”), as Members (together, the “Members”), and BR I, as Manager.
WHEREAS, the parties hereto desire to amend, restate and replace the Prior LLC Agreement in its entirety and to enter into this Amended and Restated Limited Liability Company Agreement to provide for, among other things, (i) the continuation of the Company, as reconstituted, (ii) the admission of the Xxxxxxx Member as a member in exchange for its Capital Contributions as provided herein, (iii) a restatement of the rights, obligations and duties of the Members to each other and to the Company, (iv) the allocation of Net Income, Net Losses, credits and distribution of cash flow and other proceeds of the Company among the Members, (v) the respective rights, obligations and interests of the Members to each other and to the Company, and (vi) certain other matters, all as hereinafter provided; and
Section 1. Definitions. As used in this Agreement:
“Act” shall mean the Delaware Limited Liability Company Act (currently Chapter 18 of Title 6 of the Delaware Code), as amended from time to time.
“Adjusted Capital Account Deficit” shall mean, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the applicable Fiscal Year after (i) crediting such Capital Account with any amounts which such Member is deemed to be obligated to restore pursuant to Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), and (ii) debiting such Capital Account by the amount of the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
“Advisor” shall mean any accountant, attorney or other advisor retained by a Member.
“Affiliate” shall mean as to any Person any other Person that directly or indirectly controls, is controlled by, or is under common control with such first Person. For the purposes of this Agreement, a Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management, policies and/or decision making of such other Person, whether through the ownership of voting securities, by contract or otherwise. In addition, “Affiliate” shall include as to any Person any other Person related to such Person within the meaning of Code Sections 267(b) or 707(b)(1).
“Agreed Upon Value” shall mean the fair market value (net of any debt) agreed upon pursuant to a written agreement between the Members of property contributed by a Member to the capital of the Company, which shall for all purposes hereunder be deemed to be the amount of the Capital Contribution applicable to such property contributed.
“Agreement” shall mean this Amended and Restated Limited Liability Company Agreement, as amended from time to time.
“Bankruptcy Code” shall mean Title 11 of the United States Code, as amended, or any other applicable bankruptcy or insolvency statute or similar law.
“Bankruptcy/Dissolution Event” shall mean, with respect to the affected party, (i) the entry of an Order for Relief under the Bankruptcy Code, (ii) the admission by such party of its inability to pay its debts as they mature, (iii) the making by it of an assignment for the benefit of creditors generally, (iv) the filing by it of a petition in bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state bankruptcy or insolvency statute or any similar law, (v) the expiration of sixty (60) days after the filing of an involuntary petition under the Bankruptcy Code without such petition being vacated, set aside or stayed during such period, (vi) an application by such party for the appointment of a receiver for the assets of such party, (vii) an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within sixty (60) days after filing, (viii) the imposition of a judicial or statutory lien on all or a substantial part of its assets unless such lien is discharged or vacated or the enforcement thereof stayed within sixty (60) days after its effective date, (ix) an inability to meet its financial obligations as they accrue, or (x) a dissolution or liquidation.
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“Beneficial Owner” shall have the meaning provided in Section 5.7.
“BR I” shall have the meaning set forth in the recitals.
“BR I Transferee” shall have the meaning set forth in Section 12.2(b)(i).
“BR II” shall have the meaning set forth in the recitals.
“BR II Transferee” shall have the meaning set forth in Section 12.2(b)(ii).
“BRG” shall mean Bluerock Residential Growth REIT, Inc., a Maryland corporation.
“Capital Account” shall have the meaning provided in Section 5.6.
“Capital Contribution” shall mean, with respect to any Member, the aggregate amount of (i) cash, and (ii) the Agreed Upon Value of other property contributed by such Member to the capital of the Company net of any liability secured by such property that the Company assumes or takes subject to.
“Xxxxxxx Parent” shall mean MPC Partnership Holdings LLC, a Georgia limited liability company.
“Cash Flow” shall mean, for any period for which Cash Flow is being calculated, gross cash receipts of the Company (but excluding Capital Contributions), less the following payments and expenditures: (i) all payments of operating expenses of the Company, (ii) all payments of principal of, interest on and any other amounts due with respect to indebtedness, leases or other commitments or obligations of the Company (and other loans by Members to the Company), (iii) all sums expended by the Company for capital expenditures, (iv) all prepaid expenses of the Company, and (v) all sums expended by the Company which are otherwise capitalized.
“Certificate of Formation” shall mean the Certificate of Formation of the Company, as amended from time to time.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, including the corresponding provisions of any successor law.
“Collateral Agreement” shall mean any agreement, instrument, document or covenant concurrently or hereafter made or entered into under, pursuant to, or in connection with this Agreement and any certifications made in connection therewith or amendment or amendments made at any time or times heretofore or hereafter to any of the same.
“Company” shall mean BR Hawthorne Springhouse JV, LLC, a Delaware limited liability company organized under the Act.
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“Company Interest” shall mean all of the Company’s interest in Property Owner, including its limited liability company interest and its managerial interest therein.
“Company Minimum Gain” shall have the meaning given to the term “partnership minimum gain” in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
“Confidential Information” shall have the meaning provided in Section 10(a).
“Default Amount” shall have the meaning provided in Section 5.2(b).
“Defaulting Member” shall have the meaning provided in Section 5.2(b).
“Delaware UCC” shall mean the Uniform Commercial Code as in effect in the State of Delaware from time to time.
“Dissolution Event” shall have the meaning provided in Section 13.2.
“Distributable Funds” with respect to any month or other period, as applicable, shall mean (x) an amount equal to the Cash Flow of the Company for such month or other period, as applicable, as reduced by (y) reserves for anticipated capital expenditures, future working capital needs and operating expenses, contingent obligations and other purposes, the amounts of which shall be reasonably determined from time to time by the Manager.
“Distributions” shall mean the distributions payable (or deemed payable) to a Member (including, without limitation, its allocable portion of Distributable Funds).
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
“Fiscal Year” shall mean each calendar year ending December 31.
“Flow Through Entity” shall have the meaning provided in Section 5.7.
“Foreign Corrupt Practices Act” shall mean the Foreign Corrupt Practices Act of the United States, 15 U.S.C. Sections 78a, 78m, 78dd-1, 78dd-2, 78dd-3, and 78ff, as amended, if applicable, or any similar law of the jurisdiction where the Property is located or where the Company or any of its Subsidiaries transacts business or any other jurisdiction, if applicable.
“Income” shall mean the gross income of the Company for any month, Fiscal Year or other period, as applicable, including gains realized on the sale, exchange or other disposition of the Company’s assets.
“Indemnified Party” shall have the meaning provided in Section 14.3(a).
“Indemnifying Party” shall have the meaning provided in Section 14.3(a).
“Inducement Agreements” shall have the meaning provided in Section 14.3(a).
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“Interest” of any Member shall mean the entire limited liability company interest of such Member in the Company, which includes, without limitation, any and all rights, powers and benefits accorded a Member under this Agreement and the duties and obligations of such Member hereunder, and “Interests” shall mean, collectively, the Interest of each Member of the Company.
“IT Services Agreement” shall mean that certain Service Agreement, by and between IT Support Solutions Group, LLC, a Georgia limited liability company, and the Property Owner.
“Key Individuals” shall mean Xxxx Xxxxxxxx and M. Xxxxxxx Xxxxxxx.
“Loan” shall mean that certain mortgage loan in the original principal amount of approximately $51,000,000.00 borrowed by Property Owner from MetLife HCMJV 1 REIT, LLC (together with its successors and assigns as the holder of the Loan, the “Lender”).
“Loan Documents” shall mean that certain Multifamily Loan and Security Agreement and all related documents evidencing and securing the Loan.
“Loss” shall mean the aggregate of losses, deductions and expenses of the Company for any month, Fiscal Year or other period, as applicable, including losses realized on the sale, exchange or other disposition of the Company’s assets.
“Manager” shall mean BR I, or any Person(s) that succeeds BR I in the capacity as manager of the Company.
“Member” and “Members” shall mean BR I, BR II, Xxxxxxx Member and any other Person admitted to the Company pursuant to this Agreement. For purposes of the Act, the Members shall constitute a single class or group of members.
“Member in Question” shall have the meaning provided in Section 16.12.
“Net Income” shall mean the amount, if any, by which Income for any period exceeds Loss for such period.
“Net Loss” shall mean the amount, if any, by which Loss for any period exceeds Income for such period.
“New York UCC” shall have the meaning provided in Section 16.17.
“Percentage Interest” shall have the meaning provided in Section 5.3.
“Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other legal entity.
“Property” shall have the meaning set forth in Section 3 hereof.
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“Property Manager” shall mean Xxxxxxx Management Group, LLC, so long as the Property Management Agreement is in full force and effect and thereafter, the entity performing similar services with respect to the Property.
“Property Management Agreement” shall mean that certain Property Management Agreement, as amended, by and between Property Owner and the Property Manager.
“Property Manager Reports” shall have the meaning set forth in Section 8.2(c).
“Property Owner” shall mean BR Roswell, LLC, a Delaware limited liability company, a Subsidiary of the Company and the holder of fee title in the Property.
“Pursuer” shall have the meaning provided in Section 10(c).
“Regulations” shall mean the Treasury Regulations promulgated pursuant to the Code, as amended from time to time, including the corresponding provisions of any successor regulations.
“REIT” shall mean a real estate investment trust as defined in Code Section 856.
“REIT Member” shall mean any Member, if such Member is a REIT or a direct or indirect subsidiary of a REIT.
“REIT Requirements” shall mean the requirements for qualifying as a REIT under the Code and Regulations.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Subsidiary” shall mean any corporation, partnership, limited liability company or other entity of which fifty percent (50%) or more is owned by the Company or of which at least a majority of the capital stock or other equity securities is owned by the Company.
“Tax Matters Member” shall have the meaning provided in Section 8.3.
“Total Investment” shall mean the sum of the aggregate Capital Contributions made by a Member.
“Transfer” means, as a noun, any transfer, sale, assignment, exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other disposition, voluntary or involuntary, by operation of law or otherwise and, as a verb, voluntarily or involuntarily, by operation of law or otherwise, to transfer, sell, assign, exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise dispose of.
Section 2. Organization of the Company.
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The purpose of the Company, subject in each case to the terms hereof, shall be to engage in the business of acquiring, owning, operating, developing, renovating, repositioning, managing, leasing, selling, financing (including the borrowing of the Loan) and refinancing all or any portion of the real estate and any real estate related investments known as Roswell City Walk Apartments, which is located at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, which is held by Property Owner (any property acquired as aforesaid shall hereinafter be referred to as the “Property”), and all other activities reasonably necessary to carry out such purposes. The Company shall possess and may exercise all of the powers and privileges granted by the Act, by any other law or by this Agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Company.
Section 5. Capital Contributions, Loans, Percentage Interests and Capital Accounts.
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5.2 Additional Capital Contributions.
(a) Additional Capital Contributions may be called for from the Members by the Manager from time to time as and to the extent capital is necessary in connection with the Property. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by their respective Percentage Interest. Such additional Capital Contributions shall be payable by the Members to the Company upon the earlier of (i) twenty (20) days after written request from the Company, or (ii) the date when the Capital Contribution is required, as set forth in a written request from the Company.
(b) If a Member (a “Defaulting Member”) fails to make a Capital Contribution that is required as provided in Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), the other Members, provided that it has made the Capital Contribution required to be made by it, in addition to any other remedies it may have hereunder or at law, but subject in all events to any restrictions contained in the Loan Documents, shall have one or more of the following remedies:
(1) [Intentionally Omitted];
(2) subject to any applicable thin capitalization limitations on indebtedness of the Company, to treat its portion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member(s) and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. If more than one Member has loans outstanding to the Company under this provision, such loans shall be payable to each such Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be treated as a Capital Contribution made by the Defaulting Member. For purposes of this Agreement, the “Default Loan Rate” means a twenty percent (20%) per annum interest rate, but in no event in excess of the highest rate permitted by applicable laws;
(3) in lieu of the remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution made by the non-failing Member(s) shall be returned within ten (10) days with interest computed at the Default Loan Rate by the Company.
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(c) Notwithstanding the foregoing provisions of this Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other Person shall be in default (or with notice or the passage of time or both, would be in default) in any material respect under any loan, indenture, mortgage, lease, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company (or any of its Subsidiaries) or any of its properties or assets is or may be bound, (ii) any other Member, the Company or any of its Subsidiaries shall be insolvent or bankrupt or in the process of liquidation, termination or dissolution, (iii) any other Member, the Company or any of its Subsidiaries shall be subjected to any pending litigation (x) in which the amount in controversy exceeds $500,000, (y) which litigation is not being defended by an insurance company who would be responsible for the payment of any judgment in such litigation, and (z) which litigation if adversely determined could have a material adverse effect on such other Member and/or the Company or any of its Subsidiaries and/or could interfere with their ability to perform their obligations hereunder or under any Collateral Agreement, (iv) there has been a material adverse change in (including, but not limited to, the financial condition of) any other Member (and/or its Affiliates) which, in such Member’s reasonable judgment, prevents such other Member (and/or its Affiliates) from performing, or substantially interferes with their ability to perform, their obligations hereunder or under any Collateral Agreement. If any of the foregoing events shall have occurred and any Member elects not to make a Capital Contribution on account thereof, then any other Member which has made its pro rata share of such Capital Contribution shall be entitled to a return of such Capital Contribution from the Company.
(d) Notwithstanding the terms of this Section 5.2, neither the Company nor the non-failing Members shall have the right to pursue any direct recourse action against the Defaulting Member, their remedies being limited to those specifically set forth in Sections 5.2(b)(1), (2) and (3) hereof.
(a) A separate capital account (the “Capital Account”) shall be maintained for each Member in accordance with Section 1.704-1(b)(2)(iv) of the Regulations. Without limiting the foregoing, the Capital Account of each Member shall be increased by (i) the amount of any Capital Contributions made by such Member, (ii) the amount of Income allocated to such Member and (iii) the amount of income or profits, if any, allocated to such Member not otherwise taken into account in this Section 5.6. The Capital Account of each Member shall be reduced by (i) the amount of any cash and the fair market value of any property distributed to the Member by the Company (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to), (ii) the amount of Loss allocated to the Member and (iii) the amount of expenses or losses, if any, allocated to such Member not otherwise taken into account in this Section 5.6.
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(b) The Capital Accounts of the Members shall be adjusted pursuant to Regulations Section 1.704-1(b)(2)(iv)(f) to reflect a revaluation of the Company’s assets on the Company’s books in connection with any contribution of money or other property to the Company by new or existing Members. If any property other than cash is distributed to a Member, the Capital Accounts of the Members shall be adjusted as if such property had instead been sold by the Company for a price equal to its fair market value, the gain or loss allocated pursuant to Section 7, and the proceeds distributed in the manner set forth in Section 6.1 or Section 13.3(d)(iii).
(c) The Capital Accounts of the Members shall be adjusted to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treas. Reg. § 1.704-1(b)(2)(iv)(m); provided, however, that no adjustment shall occur pursuant to this Section 5.6(c) to the extent the Manager determines that an adjustment pursuant to Section 5.6(b) hereof is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this Section 5.6(c).
(d) No Member shall be obligated to restore any negative balance in its Capital Account. No Member shall be compensated for any positive balance in its Capital Account except as otherwise expressly provided herein. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with the provisions of Regulations Section 1.704-1(b)(2) and shall be interpreted and applied in a manner consistent with such Regulations.
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6.1 Distribution of Distributable Funds
(a) The Manager shall calculate and determine the amount of Distributable Funds for each applicable period. Except as provided in Sections 5.2(b), 6.1(b) or 13.3 or otherwise provided hereunder, Distributable Funds, if any, shall be distributed to the Members, in proportion to their Percentage Interests, on the 15th day of each month or from time to time as determined by the Manager.
(b) Any Distributions otherwise payable to a Member under this Agreement shall be applied first to satisfy amounts due and payable on account of the indemnity and/or contribution obligations of such Member under this Agreement and/or any other agreement delivered by such Member to the Company or any other Member but shall be deemed distributed to such Member for purposes of this Agreement.
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(b) Code Section 704(c). In accordance with Code Section 704(c) and the Regulations promulgated thereunder, income and loss with respect to any property contributed to the capital of the Company (including, if the property so contributed constitutes a partnership interest, the applicable distributive share of each item of income, gain, loss, expense and other items attributable to such partnership interest whether expressly so allocated or reflected in partnership allocations) shall, solely for U.S. federal income 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 U.S. federal income tax purposes and its Agreed Upon Value at the time of contribution.
(c) In the event the Capital Accounts of the Members are adjusted pursuant to Section 5.6(b) or (c) to reflect a revaluation of the Company’s assets on the Company’s books, 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 book value in the same manner as under Code Section 704(c) and the Regulations thereunder.
(d) Such allocation shall be made in accordance with any permissible method set forth in Regulations Section 1.704-3, as reasonably determined by the Manager. Any other elections or other decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 7.3 are solely for purposes of U.S. federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s share of Net Income, Net Loss, other items or distributions pursuant to any provisions of this Agreement.
Section 8. Books, Records, Tax Matters and Bank Accounts.
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8.2 Reports and Financial Statements.
(a) Within thirty (30) days of the end of each Fiscal Year, the Manager shall cause each Member to be furnished with two sets of the following additional annual reports computed as of the last day of the Fiscal Year:
(i) | An unaudited balance sheet of the Company and Property Owner; |
(ii) | An unaudited statement of profit and loss for the Company and Property Owner; and |
(iii) | A statement of the Members’ Capital Accounts and changes therein for such Fiscal Year. |
(b) Within fifteen (15) days of the end of each quarter of each Fiscal Year, the Manager shall cause to be furnished to any REIT Member such information as requested by any REIT Member as is necessary for such REIT Member to determine its qualification as a REIT and its compliance with REIT Requirements.
(c) The Members acknowledge that the Property Manager is obligated to perform Property-related accounting and furnish Property-related accounting statements under the terms of the Property Management Agreement (and any future property manager for the Property shall be required to do the same) (collectively, the “Property Manager Reports”). The Manager shall be entitled to rely on the Property Manager Reports with respect to its obligations under this Section 8, and the Members acknowledge that the reports to be furnished hereunder shall be based on the Property Manager Reports, without any duty on the part of the Manager to further investigate the completeness, accuracy or adequacy of the Property Manager Reports.
(d) The Manager will use its commercially best efforts to obtain such financial statements (audited or unaudited), information and attestations as may be required by any Member or any of its Affiliates in connection with public reporting, attestation, certification and other requirements under the Securities Exchange Act of 1934, as amended, and the Xxxxxxxx-Xxxxx Act of 2002, as amended, applicable to such entity, and work in good faith with the designated accountants or auditors of any Member or any of its Affiliates in connection therewith, including for purposes of testing internal controls and procedures of any Member or any of its Affiliates.
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(a) The Company shall be managed by one manager. BR I shall have the power and authority to appoint the Manager without any further action or approval by any other Member, and BR I hereby appoints BR I as the Manager. To the extent that BR I or a BR I Transferee Transfers all or a portion of its Interest in accordance with Section 12 to a BR I Transferee, such BR I Transferee may be appointed as the Manager under this Section 9.1(a) by BR I or a BR I Transferee then holding all or a portion of an Interest without any further action or authorization by any other Member. The Manager may not be removed by the Members other than for an act or omission related to the Company constituting gross negligence or fraud.
(b) The Manager, acting alone, shall have the authority to exercise all of the powers and privileges granted by the Act, any other law or this Agreement, together with any powers incidental thereto, and to take any other action not prohibited under the Act or other applicable law, so far as such powers or actions are necessary or convenient or related to the conduct, promotion or attainment of the business, purposes or activities of the Company.
(c) Manager shall substantially participate in the management of the Property, and in all decision-making with respect to the development of the Property, both directly and through the control Manager maintains and exercises over Company Subsidiaries (and the Company maintains and exercises over Property Owner). In furtherance of such management and decision-making authority, the Manager shall meet with the Property Manager on no less than a quarterly basis to discuss issues and make decisions related to the management and operation of the Property.
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(d) The Manager may appoint individuals to act on behalf of the Company with such titles and authority as determined from time to time by the Manager. Each of such individuals shall hold office until his or her death, resignation or replacement by the Manager.
9.4 Operation in Accordance with REOC/REIT Requirements.
(a) The Members acknowledge that one or more Affiliates of the Members (a “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable each BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that would result in a BR Affiliate from failing to qualify as a REOC. No Member shall fund any Capital Contribution with the “plan assets” of any “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, or any “plan” as defined by Section 4975 of the Internal Revenue Code of 1986, as amended. The Members and the Manager shall comply with any requirements specified by a BR Affiliate in order to ensure compliance with this Section 9.4.
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(b) Notwithstanding anything in this Agreement to the contrary, unless specifically agreed to by the Manager in writing, neither the Company nor its Subsidiaries shall hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514 (“UBTI”). No Manager or Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence and not related to the Property.
(c) The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction (as defined below). Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company, Property Owner, nor any other direct or indirect Subsidiary of the Company or Property Owner, nor any Manager or Member of the Company, shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or Property Owner or any direct or indirect Subsidiary thereof, including, without limiting the generality of the foregoing, but in amplification thereof:
(i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs);
(ii) Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease;
(iii) Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary;
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(iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with the associated REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes;
(v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants);
(vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code;
(vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account;
(viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or
(ix) Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year.
Notwithstanding the foregoing provisions of this Section 9.4(c), the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 9.4(c). For purposes of this Section 9.4(c), “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in this Section 9.4(c).
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(a) In compliance with the Foreign Corrupt Practices Act, each Member will not, and will ensure that its officers, directors, employees, shareholders, members, agents and Affiliates, acting on its behalf or on the behalf of the Company or any of its Subsidiaries or Affiliates do not, for a corrupt purpose, offer, directly or indirectly, promise to pay, pay, promise to give, give or authorize the paying or giving of anything of value to any official representative or employee of any government agency or instrumentality, any political party or officer thereof or any candidate for office in any jurisdiction, except for any facilitating or expediting payments to government officials, political parties or political party officials the purpose of which is to expedite or secure the performance of a routine governmental action by such government officials or political parties or party officials. The term “routine governmental action” for purposes of this provision shall mean an action which is ordinarily and commonly performed by the applicable government official in (i) obtaining permits, licenses, or other such official documents which such Person is otherwise legally entitled to; (ii) processing governmental papers; (iii) providing police protection, mail pick-up and delivery or scheduling inspections associated with contract performance or inspections related to transit of goods across country; (iv) providing phone service, power and water supply, loading and unloading of cargo, or protecting perishable products or commodities from deterioration; or (v) actions of a similar nature.
The term “routine governmental action” does not include any decision by a government official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by an official involved in the decision making process to encourage a decision to award new business to or continue business with a particular party.
(b) Each Member agrees to notify immediately the Manager and the other Members of any request that such Member or any of its officers, directors, employees, shareholders, members, agents or Affiliates, acting on its behalf, receives to take any action that may constitute a violation of the Foreign Corrupt Practices Act.
(a) Any information relating to a Member’s business, operation or finances which are proprietary to, or considered proprietary by, a Member are hereinafter referred to as “Confidential Information”. All Confidential Information in tangible form (plans, writings, drawings, computer software and programs, etc.) provided to or conveyed orally or visually to a receiving Member shall be presumed to be Confidential Information at the time of delivery to the receiving Member. All such Confidential Information shall be protected by the receiving Member from disclosure with the same degree of care with which the receiving Member protects its own Confidential Information from disclosure. Each Member agrees: (i) not to disclose such Confidential Information to any Person except to those of its employees or representatives who need to know such Confidential Information in connection with the conduct of the business of the Company and who have agreed to maintain the confidentiality of such Confidential Information and (ii) neither it nor any of its employees or representatives will use the Confidential Information for any purpose other than in connection with the conduct of the business of the Company; provided that such restrictions shall not apply if such Confidential Information:
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(x) is or hereafter becomes public, other than by breach of this Agreement;
(y) was already in the receiving Member’s possession prior to any disclosure of the Confidential Information to the receiving Member by the divulging Member; or
(z) has been or is hereafter obtained by the receiving Member from a third party not bound by any confidentiality obligation with respect to the Confidential Information;
provided, further, that nothing herein shall prevent any Member from disclosing any portion of such Confidential Information (1) to the Company and allowing the Company to use such Confidential Information in connection with the Company’s business, (2) pursuant to judicial order or in response to a governmental inquiry, by subpoena or other legal process, but only to the extent required by such order, inquiry, subpoena or process, and only after reasonable notice to the original divulging Member, (3) as necessary or appropriate in connection with or to prevent the audit by a governmental agency of the accounts of any Member, (4) in order to initiate, defend or otherwise pursue legal proceedings between the parties regarding this Agreement, (5) necessary in connection with a Transfer of an Interest permitted hereunder or (6) to a Member’s respective attorneys or accountants or other representative.
(b) The Members and their Affiliates shall each act to safeguard the secrecy and confidentiality of, and any proprietary rights to, any non-public information relating to the Company and its business, except to the extent such information is required to be disclosed by law or reasonably necessary to be disclosed in order to carry out the business of the Company. Each Member may, from time to time, provide the other Members written notice of its non-public information which is subject to this Section 10(b).
(c) Without limiting any of the other terms and provisions of this Agreement, to the extent a Member (the “Pursuer”) provides the other Members with information relating to a possible investment opportunity then being actively pursued by the Pursuer on behalf of the Company, the other Members receiving such information shall not use such information to pursue such investment opportunity for their own account to the exclusion of the Pursuer so long as the Pursuer is actively pursuing such opportunity on behalf of the Company and shall not disclose any Confidential Information to any Person (except as expressly permitted hereunder) or take any other action in connection therewith that is reasonably likely to cause damage to the Pursuer.
Section 11. Representations and Warranties.
11.2 Representations and Warranties. Each Member hereby represents and warrants that:
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(i) None of the Interests are registered under the Securities Act or any state securities laws. Such Member understands that the offering, issuance and sale of the Interests are intended to be exempt from registration under the Securities Act, based, in part, upon the representations, warranties and agreements contained in this Agreement. Such Member is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.
(ii) Neither the Securities and Exchange Commission nor any state securities commission has approved the Interests or passed upon or endorsed the merits of the offer or sale of the Interests. Such Member is acquiring the Interests solely for such Member’s own account for investment and not with a view to resale or distribution thereof in violation of the Securities Act.
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(iii) Such Member is unaware of, and in no way relying on, any form of general solicitation or general advertising in connection with the offer and sale of the Interests, and no Member has taken any action which could give rise to any claim by any person for brokerage commissions, finders’ fees (without regard to any finders’ fees payable by the Company directly) or the like relating to the transactions contemplated hereby.
(iv) Such Member is not relying on the Company, the Manager or any of their respective officers, directors, employees, advisors or representatives with regard to the tax and other economic considerations of an investment in the Interests, and such Member has relied on the advice of only such Member’s advisors.
(v) Such Member understands that the Interests may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws, or an exemption from registration is available. Such Member agrees that it will not attempt to sell, transfer, assign, pledge or otherwise dispose of all or any portion of the Interests in violation of this Agreement.
(vi) Such Member has adequate means for providing for its current financial needs and anticipated future needs and possible contingencies and emergencies and has no need for liquidity in the investment in the Interests.
(vii) Such Member is knowledgeable about investment considerations and has a sufficient net worth to sustain a loss of such Member’s entire investment in the Company in the event such a loss should occur. Such Member’s overall commitment to investments which are not readily marketable is not excessive in view of such Member’s net worth and financial circumstances and the purchase of the Interests will not cause such commitment to become excessive. The investment in the Interests is suitable for such Member.
(viii) Such Member represents to the Company that the information contained in this subparagraph (h) and in all other writings, if any, furnished to the Company with regard to such Member (to the extent such writings relate to its exemption from registration under the Securities Act) is complete and accurate and may be relied upon by the Company in determining the availability of an exemption from registration under federal and state securities laws in connection with the sale of the Interests.
Section 12. Sale, Assignment, Transfer or other Disposition.
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(a) Subject to the provisions of Section 12.2(b) hereof, and subject in each case to the prior written approval of each Member (such approval not to be unreasonably withheld), any Member may Transfer all or any portion of its Interest in the Company at any time to an Affiliate of such Member, provided that such Affiliate shall remain an Affiliate of such Member at all times that such Affiliate holds such Interest. If such Affiliate shall thereafter cease being an Affiliate of such Member while such Affiliate holds such Interest, such cessation shall be a non-permitted Transfer and shall be deemed void ab initio, whereupon the Member having made the Transfer shall, at its own and sole expense, cause such putative transferee to disgorge all economic benefits and otherwise indemnify the Company and the other Members against loss or damage under any Collateral Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, the following Transfers shall not require the approval set forth in Section 12.2(a):
(i) Any Transfer by BR I or a BR I Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of BR I, including but not limited to (A) BRG or any Person that is directly or indirectly owned by BRG; (B) Bluerock Residential Holdings, L.P. (“BR REIT LP”) or any Person that is directly or indirectly owned by BR REIT LP; (C) Bluerock Growth Fund, LLC (“BGF”) or any Person that is directly or indirectly owned by BGF; (D) Bluerock Growth Fund II, LLC (“BGF II”) or any Person that is directly or indirectly owned by BGF II; (E) BR II or any Person that is directly or indirectly owned by BR II; (F) Bluerock Special Opportunity + Income Fund II, LLC (“SOIF II”) or any Person that is directly or indirectly owned by SOIF II; (G) Bluerock Special Opportunity + Income Fund III, LLC (“SOIF III”) or any Person that is directly or indirectly owned by SOIF III and/or (H) Bluerock Real Estate, L.L.C. (“Bluerock”) or any Person that is directly or indirectly owned by Bluerock (collectively, a “BR I Transferee”);
(ii) Any Transfer by BR II or a BR II Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of BR II, including but not limited to (A) BRG or any Person that is directly or indirectly owned by BRG; (B) BR REIT LP or any Person that is directly or indirectly owned by BR REIT LP; (C) BGF or any Person that is directly or indirectly owned by BGF; (D) BGF II or any Person that is directly or indirectly owned by BGF II; (E) SOIF II or any Person that is directly or indirectly owned by SOIF II; (F) SOIF III or any Person that is directly or indirectly owned by SOIF III; (G) BR I or any Person that is directly or indirectly owned by BR I; and/or (H) Bluerock or any Person that is directly or indirectly owned by Bluerock (collectively, a “BR II Transferee”);
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(iii) Any Transfer by Xxxxxxx Member of up to one hundred percent (100%) of its Interest to an Affiliate of Xxxxxxx Parent (a “Xxxxxxx Transferee”), it being expressly understood and agreed that transfers of ownership interests in Xxxxxxx shall not be prohibited as long as at least one of the Key Individuals (collectively or individually) remains actively involved in the operation and management of Xxxxxxx Member (to the extent that it continues to hold, or control, any interest in the Company), Xxxxxxx Parent and any Xxxxxxx Transferee, and provided that (i) the Transfer does not require any approval by Lender (if approval thereof by Lender is required, then such approval must be obtained as a prerequisite to any such Transfer by Xxxxxxx Member) and (ii) satisfactory evidence is provided to Manager confirming the status of such Xxxxxxx Transferee. Any fees owing to Lender or incurred by Manager relating to such Transfer shall be paid solely by Xxxxxxx Member.
provided however, no Transfer shall be permitted and shall be void ab initio if it shall violate any “Transfer” provision of any applicable Collateral Agreement with third party lenders.
(c) Upon the execution by any such BR I Transferee or BR II Transferee or Xxxxxxx Transferee of such documents necessary to admit such party into the Company and to cause the BR I Transferee or BR II Transferee or Xxxxxxx Transferee (as applicable) to become bound by this Agreement, the BR I Transferee or BR II Transferee or Xxxxxxx Transferee (as applicable) shall become a Member, without any further action or authorization by any other Member.
(a) If a Member Transfers all or any portion of its Interest in the Company, such transferee may become a Member if (i) such transferee executes and agrees to be bound by this Agreement, (ii) the transferor and/or transferee pays all reasonable legal and other fees and expenses incurred by the Company in connection with such assignment and substitution and (iii) the transferor and transferee execute such documents and deliver such certificates to the Company and the remaining Members as may be required by applicable law or otherwise advisable; and
(b) Notwithstanding the foregoing, any Transfer or purported Transfer of any Interest, whether to another Member or to a third party, shall be of no effect and void ab initio, and such transferee shall not become a Member or an owner of the purportedly transferred Interest, if the Manager determines in its sole discretion that:
(i) the Transfer would require registration of any Interest under, or result in a violation of, any federal or state securities laws;
(ii) the Transfer would result in a termination of the Company under Code Section 708(b);
(iii) as a result of such Transfer the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended, or any rules or regulations promulgated thereunder;
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(iv) if as a result of such Transfer the aggregate value of Interests held by “benefit plan investors” including at least one benefit plan investor that is subject to ERISA, could be “significant” (as such terms are defined in U.S. Department of Labor Regulation 29 C.F.R. 2510.3-101(f)(2)) with the result that the assets of the Company could be deemed to be “plan assets” for purposes of ERISA;
(v) as a result of such Transfer, the Company would or may have in the aggregate more than one hundred (100) members and material adverse federal income tax consequences would result to a Member. For purposes of determining the number of members under this Section 12.3(b)(v), a Beneficial Owner indirectly owning an interest in the Company through a Flow-Through Entity shall be considered a member, but only if (i) substantially all of the value of the Beneficial Owner’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Company and (ii) in the sole discretion of the Manager, a principal purpose of the use of the Flow-Through Entity is to permit the Company to satisfy the 100-member limitation; or
(vi) the transferor failed to comply with the provisions of Sections 12.2(a) or (b).
The Manager may require the provision of a certificate as to the legal nature and composition of a proposed transferee of an Interest of a Member and from any Member as to its legal nature and composition and shall be entitled to rely on any such certificate in making such determinations under this Section 12.3.
(a) the expiration of the specific term set forth in Section 2.5;
(b) at any time at the election of the Manager in writing;
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(c) at any time there are no Members (unless otherwise continued in accordance with the Act); or
(d) the entry of a decree of judicial dissolution pursuant to Section 18-802 of the Act.
(a) The Manager shall cause to be prepared a statement setting forth the assets and liabilities of the Company as of the date of dissolution, a copy of which statement shall be furnished to all of the Members.
(b) The property and assets of the Company shall be liquidated or distributed in kind under the supervision of the Manager as promptly as possible, but in an orderly, businesslike and commercially reasonable manner.
(c) Any gain or loss realized by the Company upon the sale of its property shall be deemed recognized and allocated to the Members in the manner set forth in Section 7.2. To the extent that an asset is to be distributed in kind, such asset shall be deemed to have been sold at its fair market value on the date of distribution, the gain or loss deemed realized upon such deemed sale shall be allocated in accordance with Section 7.2 and the amount of the distribution shall be considered to be the fair market value of such asset.
(d) The proceeds of sale and all other assets of the Company shall be applied and distributed as follows and in the following order of priority:
(i) to the satisfaction of the debts and liabilities of the Company (contingent or otherwise) and the expenses of liquidation or distribution (whether by payment or reasonable provision for payment), other than liabilities to Members or former Members for distributions;
(ii) to the satisfaction of loans made pursuant to Section 5.2(b) in proportion to the outstanding balances of such loans at the time of payment;
(iii) the balance, if any, to the Members in accordance with Section 6.1.
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14.3 General Indemnification by the Members.
(a) Notwithstanding any other provision contained herein, each Member (the “Indemnifying Party”) hereby indemnifies and holds harmless the other Members, the Manager, the Company and each of their Subsidiaries and their agents, officers, directors, managers, members, partners, shareholders and employees (each, an “Indemnified Party”) from and against all losses, costs, expenses, damages, claims and liabilities (including reasonable attorneys’ fees) as a result of or arising out of (i) any breach of any obligation of the Indemnifying Party under this Agreement, or (ii) any breach of any obligation by or any inaccuracy in or breach of any representation or warranty made by the Indemnifying Party, whether in this Agreement or in any other agreement, with respect to the conveyance, assignment, contribution or other transfer of the Property (or interests therein, including the Company Interest), assets, agreements, rights or other interests conveyed, assigned, contributed or otherwise transferred to the Company (collectively, the “Inducement Agreements”).
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(b) Except as otherwise provided herein or in any other agreement, recourse for the indemnity obligations of the Members under this Section 14.3 shall be limited to such Indemnifying Party’s Interest in the Company.
(c) The indemnities, contributions and other obligations under this Agreement shall be in addition to any rights that any Indemnified Party may have at law, in equity or otherwise. The terms of this Section 14 shall survive termination of this Agreement.
(a) All notices, requests, approvals, authorizations, consents and other communications required or permitted under this Agreement shall be in writing and shall be (as elected by the Person giving such notice) hand delivered by messenger or overnight courier service, mailed (airmail, if international) by registered or certified mail (postage prepaid), return receipt requested, or sent via facsimile (provided such facsimile is immediately followed by the delivery of an original copy of same via one of the other foregoing delivery methods) addressed to:
If to BR I:
c/o Bluerock Real Estate, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Jordan X. Xxxxx and Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to BR II:
c/o Bluerock Real Estate, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Jordan X. Xxxxx and Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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If to Carroll Member:
c/x Xxxxxxx Organization, LLC
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: M. Xxxxxxx Xxxxxxx
Facsimile No. (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. May, Esq.
Facsimile: (000) 000-0000
(b) Each such notice shall be deemed delivered (i) on the date delivered if by hand delivery or overnight courier service or facsimile, and (ii) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed (provided, however, if such actual delivery occurs after 5:00 p.m. (local time where received), then such notice or demand shall be deemed delivered on the immediately following business day after the actual day of delivery).
(c) By giving to the other parties at least fifteen (15) days written notice thereof, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective notice addresses.
16.2 Governing Law. This Agreement and the rights of the Members hereunder shall be governed by, and interpreted in accordance with, the laws of the State of Delaware. The Company and each Member agree that any dispute among or between them concerning the Company or this Agreement shall be litigated in the state or federal courts sitting in the City of New York, State of New York. Each of the parties hereto irrevocably submits to the jurisdiction of the New York State courts and the Federal courts sitting in the State of New York and agree that all matters involving this Agreement shall be heard and determined in such courts. Each of the parties hereto waives irrevocably the defense of inconvenient forum to the maintenance of such action or proceeding. To the fullest extent permitted by applicable law, in any such suit, action or proceeding, the Company and each of the Members irrevocably and unconditionally waive any right it may have to a trial by jury. Each of the parties hereto designates CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, as its agent for service of process in the State of New York, which designation may only be changed on not less than ten (10) days’ prior notice to all of the other parties.
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16.17 Uniform Commercial Code. The interest of each Member in the Company shall be an “uncertificated security” governed by Article 8 of the Delaware UCC and the UCC as enacted in the State of New York (the “New York UCC”), including, without limitation, (i) for purposes of the definition of a “security” thereunder, the interest of each Member in the Company shall be a security governed by Article 8 of the Delaware UCC and the New York UCC and (ii) for purposes of the definition of an “uncertificated security” thereunder. By their execution of this Agreement, the Members and Manager expressly revoke any prior election of the Company to “certificate” the membership interests in the Company and any existing certificates outstanding with respect to the membership interests are expressly withdrawn, terminated and cancelled and, for all purposes, deemed null and void.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Members have executed this Second Amended and Restated Limited Liability Company Agreement as of the date set forth above.
MEMBERS: | ||||
BR Springhouse Managing Member, LLC, | ||||
a Delaware limited liability company | ||||
By: | /s/ Xxxxxx Xxxxx | |||
Xxxxxx Xxxxx, Authorized Signatory | ||||
BR Springhouse TRS, LLC, | ||||
a Delaware limited liability company | ||||
By: | Bluerock Residential Holdings, L.P., | |||
a Delaware limited partnership | ||||
Its: | Sole Member | |||
By: | Bluerock Residential Growth REIT, Inc., | |||
a Maryland corporation | ||||
Its: | General Partner | |||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Its: | Chief Operating Officer, Secretary | |||
and General Counsel |
[Signature Page to Amended and Restated Limited Liability Company
Agreement of BR Hawthorne Springhouse JV, LLC]
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XXXXXXX CO-INVEST IV ROSWELL, LLC, | |||||||
a Georgia limited liability company | |||||||
By: | Carrroll Multi-Family Real Estate Fund IV, LP, | ||||||
a Delaware limited partnership, it manager | |||||||
By: | MPC Property Holdings IV, LLC, | ||||||
a Georgia limited liability company, its general partner | |||||||
By: | MPC Partnership Holdings LLC, | ||||||
a Georgia limited liability company, its sole member | |||||||
By: | X. Xxxxxxx Capital Partners, LLC, | ||||||
a Georgia limited liability company, its managing member | |||||||
By: | HUP Investment Company, LLC, | ||||||
a Georgia limited liability company, its sole member | |||||||
By: | /s/ M. Xxxxxxx Xxxxxxx | ||||||
Name: | M. Xxxxxxx Xxxxxx | ||||||
Its: | Sole Member |
[Signature Page to Amended and Restated Limited Liability Company
Agreement of BR Hawthorne Springhouse JV, LLC]
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EXHIBIT A
Capital Contributions and Percentage Interests
Member Name | Initial Capital Contribution | Percentage Interest | ||||||
BR Springhouse Managing Member, LLC | $ | 25,447,020.25 | 97.902 | % | ||||
BR Springhouse TRS, LLC | $ | 25,472.49 | 0.098 | % | ||||
Xxxxxxx Co-Invest IV Roswell, LLC | $ | 519,846.79 | 2.000 | % |