Exhibit 10.69
DECLARATION OF
OPERATING AGREEMENT
OF
AMERUS-BLACKSTONE, L.L.C.
DATED: JULY 23, 1997
Xxxxx, Xxxx & Xxxxxxxx, X.X.
One Petticoat Lane Building
0000 Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Telecopy: (000) 000-0000
DECLARATION OF OPERATING AGREEMENT OF
AMERUS-BLACKSTONE, L.L.C.
THIS DECLARATION OF OPERATING AGREEMENT is made as of the 23rd day of
July, 1997 (the "Effective Date"), by AMERUS LIFE INSURANCE COMPANY, an Iowa
corporation ("ALI"), as the sole member.
RECITALS
(A) ALI desires to organize a limited liability company to (1) acquire the
limited partner interest as the "Investor Limited Partner" (the "Investment
Interest") in Blackstone Hotel Partners, L.P., a limited partnership (the
"Partnership") organized under the laws of the State of Louisiana on May 19,
1997 for the purpose of acquiring, rehabilitating, owning and operating the
Blackstone Hotel located in downtown Fort Worth, Tarrant County, Texas,
(2) negotiate, execute and deliver a "First Amended and Restated Articles
of Limited Partnership of Blackstone Hotel Partners, L.L.P." and any
amendments thereto as the same may be so amended, (the "Partnership
Agreement"), and (3) to thereafter act and serve as a limited partner of the
Partnership with all of the rights, benefits and duties of an "Investor
Limited Partner" under the terms of the Partnership, and (4) engage in all
activities in connection therewith.
(B) This Agreement sets forth ALI's declaration with respect to the
organization and operation of the limited liability company and the scope
and conduct of its business.
NOW, THEREFORE, in consideration of the receipt of all of the outstanding
interests in the limited liability company, ALI hereby declares as follows:
ARTICLE I. ORGANIZATION
Section 1.1. Formation of the Company. ALI hereby declares itself to be
the sole member of the Company, with all of the rights of a member in a
limited liability company formed under the provisions of the Iowa Limited
Liability Company Act (the "Act") for the limited purposes set forth in this
Agreement. The Member has filed in the appropriate governmental office
"Articles of Organization" which conform to the requirements of the Act in
order to constitute the Company as a valid Iowa limited liability company
under the Act, effective as of the Effective Date.
Section 1.2. Name. The Business of the Company shall be conducted solely
under the name of "AmerUs-Blackstone, L.L.C.," and such name shall be used
at all times in connection therewith.
Section 1.3. Term. The term of the Company shall commence as of the
Effective Date and shall continue until the winding up and liquidation of
the Company following a Dissociation Event, as provided in Article VIII.
Section 1.4. Character of Business; Powers. The business of the Company
(the "Business") is to (1) acquire, own and operate the Business Property,
(2) negotiate, execute and deliver the Partnership Agreement and all
documents referred to therein to which ALI is a party, (3) to act and serve
as a limited partner of the Partnership with all of the rights, duties and
benefits inuring on the "Investor Limited Partner" under the terms of the
Partnership Agreement; and (4) exercise all rights and powers and engage in
all activities related or ancillary to the foregoing which a limited liability
company may legally exercise pursuant to the Act.
Section 1.5. Address of the Member; Company Principal Place of Business.
The mailing address and the principal place of business of ALI and the
Company are 000 Xxxxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxx 00000.
Section 1.6. Domestic Registered Agent and Registered Office. The name of
the Company's registered agent for service of process in Iowa and its
registered office in Iowa shall be AmerUs Life Insurance Company, 000 Xxxxxx,
Xxxxx 0000, Xxx Xxxxxx, Xxxx 00000 (subject to change by the Member at any
time by making all appropriate filings).
Section 1.7. Certain Definitions. As used herein, the following terms have
the following meanings:
(A) "Agreement" means this Agreement, as amended, restated or supplemented
from time to time as herein provided.
(B) "Business Property" means all property, assets and interests (whether
real or personal, tangible or intangible) owned or held from time to time by
the Company, including the Investment Interest.
(C) "Company" means this limited liability company.
(D) "Member" means ALI.
(E) "Operating Proceeds" for the applicable period means all gross cash
receipts of the Company during such period (excluding Dissolution Proceeds)
plus the amount of any reductions in funded reserves occurring during such
period, less the following costs and expenses paid during such period (to the
extent not paid from reserves): (1) cash operating expenses (including
capital contributions and loans to the Partnership), (2) interest and
principal payments on any indebtedness of the Company, and (3) any reasonable
additions to Company operating or capital reserves which the Member
causes the Company to make.
(F) "Person" means an individual, partnership, corporation, limited liability
company, trust, or other association.
Section 1.8. Additional Definitions. The definitions in Section 1.7 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun used herein shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes," and "including" shall be deemed to be followed by the phrase
"without limitation." The words "herein," "hereof," "hereunder," and similar
terms shall refer to this Agreement, unless the context otherwise requires.
ARTICLE II. CAPITAL CONTRIBUTIONS
Section 2.1. Initial Capital Contribution. The Member shall initially
contribute $3,221,000.00 to the capital of the Company. When the Company is
required under the terms of the Partnership Agreement to make the "Second
Installment" to the Investment Partnership, the Member shall contribute the
sum of $357,700.00, in cash to the capital of the Company.
Section 2.2. No Additional Capital Contributions. The Member shall not be
required to make any additional capital contributions or loans to the Company
or be personally liable for the payment of any debts of the Company.
ARTICLE III. DISTRIBUTIONS
Section 3.1. Distributions of Operating Proceeds. The Company's Operating
Proceeds shall be distributed to the Member at such times as the Member shall
determine.
ARTICLE IV. ALLOCATION OF PROFITS AND LOSSES
Section 4.1. Profits and Losses. The Company's income, gains, losses,
deductions and credits (and items thereof), for each fiscal year of the
Company, shall be allocated to and reported by the Member.
ARTICLE V. ACCOUNTING
Section 5.1. Accounting Methods; Company Records.
(A) The Company's books and records shall be prepared in accordance with
generally accepted accounting practices, consistently applied. All Federal,
state and local statements and records of the Company shall be prepared by a
firm of certified public accountants selected by the Member.
(B) The Member shall cause the Company to comply with all record keeping
requirements imposed by the Act.
Section 5.2. Fiscal Year. The fiscal year of the Company shall be the
calendar year.
Section 5.3. Bank Accounts; Title to Business Property. The funds of the
Company shall be deposited in such bank accounts, or invested in such
interest-bearing or noninterest-bearing investments in the Company's name,
as shall be determined by the Member. The funds of the Company shall not be
commingled with the funds of the Member or any other Person and the Member
shall not employ, or permit any other Person to employ, such funds in any
manner except for the benefit of the Company. Title to the Business Property
shall be held, and conveyances thereof, as permitted hereunder, shall be
made, in the name of the Company. In no event shall any property or assets
held by the Member, in its separate individual capacity, or any affiliate
of the Member (other than the Company) be deemed to be Company property
nor shall the Company have any interest therein.
Section 5.4. Tax Status. Notwithstanding any provision of this Agreement
to the contrary, it is the intention of the Member that the Company be
disregarded solely for Federal and state income tax purposes. Accordingly,
the Company shall not apply for any tax identification number or prepare or
file any Federal, state or local income tax return. The Company shall, as
soon as is practicable after the end of each fiscal year, prepare a statement
setting forth each item of income, gain, loss, deduction and credit and
forward the same to the Member who shall report each such item on its income
tax return. Nothing in this Section shall not be construed to extend the
purposes or expand the obligations or liabilities of the Company or the
Member.
ARTICLE VI. POWERS, RIGHTS AND DUTIES OF THE MEMBER
Section 6.1. Management Authority and Duties of Member. The overall
management and control of the Company and the Business shall be vested in
the Member who shall have the exclusive right, authority, and responsibility
to participate in the management of the business and affairs of the Company
and to enter into transactions on behalf of the Company within the scope of
the Business; PROVIDED, HOWEVER, that the Member may delegate to third parties
ministerial authority to conduct or participate in the day-to-day operations
of the Company. Pursuant to the foregoing and subject to the other
provisions hereof, the Member shall have all of the rights and powers of a
member as provided under the Act and as otherwise provided by law. Any duly
authorized officer of the Member shall be entitled to act on behalf of
Member under the terms of this Agreement.
Section 6.2. Liability and Indemnification of the Member and Affiliates.
(A) Neither the Member nor any affiliate of the Member shall be liable,
responsible or accountable in damages or otherwise to the Company or to the
Member for any action taken or failure to act on behalf of the Company unless
such action or omission was an constituted gross negligence, bad faith or
wanton or willful misconduct (collectively, "Misconduct").
(B) Except with respect to Misconduct, the Company shall, to the fullest
extent permitted under the Act, indemnify and hold harmless the Member and
its affiliates from any loss, damage, liability or expense incurred or sustained
by them by reason of any act performed or any omission for or on behalf of the
Company or in furtherance of the interests of the Company, including any
judgment, award, settlement, reasonable attorneys' fees and other costs and
expenses (which may be advanced by the Company) incurred in connection with
the defense of any actual or threatened action, proceeding or claim.
Section 6.3. Reimbursement of the Member. The Company shall reimburse the
Member and the Winding-Up Person (as defined in Section 7.2) for all
reasonable out-of-pocket expenses incurred by their in connection with the
discharge of their duties under this Agreement.
Section 6.4. Liability for Company Debts and Obligations. The Member shall
not be personally liable for any of the expenses, liabilities or obligations
of the Company except to the extent expressly provided in an agreement
executed by the Member evidencing its agreement to be personally liable for
such expense, liability or obligation and specifically its intention to
become liable as Member.
ARTICLE VII. DISSOLUTION OF THE COMPANY
Section 7.1. Dissociation Events. No act, thing, occurrence, event or
circumstance shall cause or result in the dissolution of the Company except
(1) the occurrence of any event (each, a "Dissociation Event") described in
Section 490A.1301.3 of the Act occurring with respect to the Member, or (2)
upon a written determination by Member to dissolve and terminate the Company.
Section 7.2. Distribution of Proceeds on Dissolution; Winding Up; Reserves.
(A) Upon the occurrence of a Dissolution Event, the Company shall continue
solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and the
Member, and the Member shall not take any action that is inconsistent with,
or not necessary to or appropriate for, winding up the Company's business and
affairs. To the extent not inconsistent with the foregoing, all covenants
and obligations in this Agreement shall continue in full force and effect
until such time as the Dissolution Proceeds have been distributed pursuant
to this Section and the Company has filed articles of dissolution.
(B) The Member or, if there is no Member, the Member's successor-in-interest
(in either case, the "Winding-Up Person"), shall be responsible for overseeing
the winding up and liquidation of the Company. As soon as reasonably
practical after the occurrence of a Dissociation Event, the Winding-Up
Person shall file a notice of winding up and take such other actions as are
required under the Act to dispose or make provision for the known and unknown
claims against the Company. After filing the notice of winding-up, the
Winding-Up person shall take full account of the Company's liabilities
and the Business Property, cause the Business Property to be liquidated
as promptly as is consistent with obtaining the fair value thereof, and shall
cause the proceeds therefrom and any other assets and funds of the Company
(collectively, the "Dissolution Proceeds"), to the extent sufficient
therefor, to be applied and distributed in the following order:
(1) First, to the payment of all unpaid secured indebtedness of the Company
to the extent of the lesser of the value of the secured property or the amount
of the secured indebtedness;
(2) Second, to the payment of the Company's then outstanding indebtedness
with respect to which the Member is subject to personal liability as a
guarantor or under a master lease or similar agreement, but if the amount
available therefor shall be insufficient, then pro rata on account thereof;
and
(3) Third, to the payment of the Company's remaining indebtedness
(excluding liabilities for distributions to the Member), but if the amount
available therefor shall be insufficient, then pro rata on account thereof;
and
(4) Fourth, the balance, if any, less such reserves ("Dissolution
Reserves") as the Winding-Up Person reasonably determines are necessary or
appropriate for anticipated or contingent expenses of the Company, shall be
distributed to the Member.
(C) To the extent the Winding-Up Person subsequently determines Dissolution
Reserves (or any part thereof) to be unnecessary for Company expenses,
she/he/it shall cause such amounts to be distributed or paid to the Member,
or other Persons who would have received the proceeds comprising such
Dissolution Reserves under this Section as if such proceeds had not been used
to fund Dissolution Reserves.
(D) When all of the Company's property and assets have been applied and
distributed as provided in this Section, the Winding-Up Person shall file
articles of dissolution as provided in the Act and take such other actions
as may be necessary to cause the Company to withdraw from all jurisdictions
where the Company is then authorized to transact business.
(E) The Winding-Up Person shall not receive any compensation for any
services performed pursuant to this Section.
ARTICLE VIII. GENERAL
Section 8.1. Amendments. This Agreement may be amended only by agreement
executed by the Member.
Section 8.2. Miscellaneous. This Agreement and the rights of the Member
hereunder shall be governed by and interpreted in accordance with the laws
of the State of Iowa. Except as herein otherwise specifically provided,
this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors and assigns. Captions contained
in this Agreement in no way define, limit or extend the scope or intent of
this Agreement. If any provision of this Agreement, or the application
of any such provision to any Person or circumstance shall be held to be
illegal, invalid or unenforceable under present or future laws effective
during the term hereof, the remainder of this Agreement or the application
of such provision to any other Persons or circumstances, shall not be
affected thereby and shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof.
In lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as a part hereof a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable. Every exhibit, schedule, and other appendix
attached to this Agreement and referred to herein is incorporated in this
Agreement by reference.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
date first above written.
AMERUS LIFE INSURANCE COMPANY, an Iowa Corporation
/s/ Xxxx Xxxxxx
By: --------------------------------------
Xxxx Xxxxxx
Name: ------------------------------------
Vice President
Title: ------------------------------------
ACKNOWLEDGMENT
STATE OF ---------------
COUNTY OF --------------
On this ----- day of ----------, 1997, before me appeared ----------------,
to me personally known, who, being by me duly sworn, did say that he is the
-------------- of AmerUs Life Insurance Company, that the foregoing instrument
was signed and sealed on behalf of the corporation by authority of its Board
of Directors, that ---------------- acknowledged the instrument to be the
free act and deed of the corporation, and that the corporation has no corporate
seal.
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NOTARY PUBLIC
