Exhibit 4.3
LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of MLP GP
LLC (the "Company"), dated as of December 31, 2001, by VORNADO MLP GP L.L.C., a
Delaware limited liability company ("Vornado"), and XXXXXXX MLP CORP., a
Delaware corporation ("WEM"), as members of the Company (each a "Member" and
together, the "Members").
WHEREAS, the Company was formed on October 11, 2001, upon the
filing of a Certificate of Formation in the office of the Office of the
Secretary of State of the State of Delaware;
NOW, THEREFORE, the parties, by execution of this Agreement, do
hereby continue the Company as a limited liability company pursuant to the
Delaware Limited Liability Company Act (6 Del. C. ss. 18-101, et seq.), as
amended from time to time (the "Act"), upon the following terms and conditions.
1. Name. The name of the limited liability company governed
hereby is "MLP GP LLC".
2. Purpose. The Company is formed for the sole object and purpose
of acting as the general partner of The Xxxxxxx Master Limited Partnership, a
Delaware limited partnership (the "MLP"). Notwithstanding anything contained
herein to the contrary, the Company shall not engage in any business, and it
shall have no purpose, unrelated to such role as such general partner.
3. Powers. In furtherance of its purposes, but subject to all of
the provisions of this Agreement, the Company shall have the power and rights
and is hereby authorized to do any and all acts conferred upon a limited
liability company formed pursuant to the Act to the extent necessary,
appropriate, convenient or incidental to the accomplishment or furtherance of
the purposes of the Company, including to take any and all actions necessary or
appropriate on behalf of the MLP or its subsidiaries or in connection with their
respective assets or businesses.
4. Registered Office. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Service Company, 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
5. Registered Agent. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware
are The Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
6. Members. The name and the mailing address of the members of
the Company are as follows:
LLC Agreement of MLP GP LLC
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Name: Address:
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Vornado c/o Vornado Realty Trust
000 Xxxxx 0 Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Att'n: Xxxxxx Xxxxxx
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WEM c/o First Winthrop
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Att'n: Xxxxx Xxxxxxxxx
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7. Management. (a) In accordance with Section 18-402 of the Act,
but subject to Section 7(d) hereof and except as otherwise provided herein, (i)
management of the Company shall be vested in the Manager (as defined below),
(ii) the Manager shall have the power to do any and all acts necessary,
convenient or incidental to or for the furtherance of the purposes described
herein, including all powers, statutory or otherwise, possessed by members of a
limited liability company under the laws of the State of Delaware, and (iii) the
Manager has the authority to bind the Company. Other than the Manager, no member
of the Company, by reason of its status as such, shall have any authority to act
for or bind the Company or hold itself out as having such authority.
(b) For purposes hereof, "Manager" shall mean WEM, unless and
until Vornado shall become the Manager pursuant to that certain Agreement, dated
as of July 8, 1998, as amended through the date hereof, among Apollo Real Estate
Investment Fund III, L.P., WEM-Brynmawr Associates LLC, Xxxxxxx XX Holdings LLC,
Xxxxxxx RE Holdings LLC, Vornado Xxxxxxx L.L.C. and Vornado Realty L.P. (the
"Xxxxxxx Agreement"), including Section 14.4 thereof. If Vornado shall become
the Manager as contemplated by this subsection (b) at a time when the Fleet Loan
(as defined in Schedule 7(d)) is outstanding, then Vornado shall amend its
organizational documents to provide (for so long as the Fleet Loan remains
outstanding) for an "Independent Manager" who shall have the independence
qualifications of the "Independent Director" and whose consent shall be required
for the same matters as the consent of such Independent Director was required
(including a decision under clause (xiv) of Schedule 7(d)).
(c) Subject in all instances to the limitations herein on its
power, the Manager may, from time to time, appoint such natural persons and such
entities as it deems appropriate as its delegate to conduct business on behalf
of the Company, to approve transactions on behalf of the Company and to execute
documents as an "Authorized Signatory" of the Company until such authorization
is revoked by the Manager.
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LLC Agreement of MLP GP LLC
(d) Without the written consent of Vornado, WEM, in its capacity
as the Manager, shall not take any action described on Schedule 7(d) attached
hereto, and shall not have the authority or power to take any action described
on Schedule 7(d), on behalf of the Company, or on behalf of the Company on
behalf of the MLP. Further, in all respects in connection with the Company or
the MLP, WEM shall perform and comply with, or cause the performance and
compliance with, the duties and obligations of Xxxxxxx and the other members of
the Apollo Group (as defined in the Xxxxxxx Agreement) under the provisions of
Sections 6.8 and 6.8A of the Xxxxxxx Agreement (which relate to the operation of
the MLP in accordance with real estate investment trust guidelines) to the
extent required and in accordance with and subject to the same conditions
expressed therein.
8. Exculpation and Indemnification. None of the Manager, Members
or officers of the Company or the Manager shall be liable to the Company or any
other person or entity who has an interest in the Company for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by the
Manager, such Member or officer in good faith on behalf of the Company and in a
manner believed to be within the scope of the authority conferred on the
Manager, such Member or officer by this Agreement, except that (a) the foregoing
provisions of this sentence shall be inapplicable in respect of any act or
omission taken by the Manager in violation of Section 7(d) hereof and (b) the
Manger, a Member or any such officer shall generally be liable for any loss,
damage or claim incurred by reason of the Manager's, such Member's or such
officer's willful misconduct or gross negligence. To the fullest extent
permitted by applicable law, the Manager, a Member or an officer of the Manager
or the Company shall be entitled to indemnification from the Company (but only
to the extent of the Company's assets, and no Member shall have any personal
liability to contribute funds in respect of such indemnification) for any loss,
damage or claim incurred by the Manager, such Member or such officer by reason
of any act or omission performed or omitted by the Manager, such Member or such
officer in good faith on behalf of the Company and in a manner believed to be
within the scope of the authority conferred on the Manager, such Member or such
officer by this Agreement, except that (i) WEM (and no officer of WEM) shall be
entitled to be indemnified in respect of any act or omission taken by WEM in
violation of Section 7(d) hereof and (ii) none of the Manager, any Member or any
officer of the Manager or a Member shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by the Manager, such Member or
such officer by reason of willful misconduct or gross negligence with respect to
such acts or omissions.
9. Dissolution. (a) The Company shall dissolve, and its affairs
shall be wound up upon the first to occur of the following: (i) December 31,
2099, (ii) the written consent of the Manager (iii) at any time when there are
no members unless the business of the Company is continued in a manner permitted
by the Act, or (iv) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
(b) In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs (including the sale of
the assets of the Company in an orderly manner), and the assets of the Company
shall be applied in the manner, and in the order of priority, set forth in
Section 18-804 of the Act.
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LLC Agreement of MLP GP LLC
(c) The bankruptcy of a Member shall not cause a Member to cease
to be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
10. Admission and Capital Contributions. Each of the Members is
hereby deemed admitted as a member of the Company upon its execution and
delivery of this Agreement. The Members have contributed amounts in cash, and no
other property, to the Company, according to the Percentage Interests set forth
on Annex I hereto.
11. Additional Contributions Optional but not Required. The
Members are not required to make any additional capital contribution to the
Company. However, any Member may, in its sole discretion, make additional
capital contributions to the Company.
12. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated to the Members according to their respective
Percentage Interests as set forth on Annex I.
13. Distributions. Distributions shall be made to the Members at
the times and in such amounts as are determined by the Manager. Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall not
make a distribution to any member on account of its interest in the Company if
such distribution would violate Section 18-607 of the Act or other applicable
law.
14. Transfers; Assignments. No Member may transfer or assign in
whole or in part its limited liability company interest, except (a) with the
prior written consent of the other Members (provided that no such consent shall
be required for a Member's assignment to the transferee, or a wholly owned
subsidiary of the transferee, from such Member's Affiliate(s) under and in
accordance with the provisions of the Xxxxxxx Agreement) and (b) in accordance
with the applicable requirements of any loan documents to which the Company or
the MLP (or any of their respective subsidiaries) is then a party. Any transfer
or assignment not permitted hereunder shall be null and void. No party to this
Agreement has the right or power to confer upon any transferee the attributes of
a member in the Company or the powers and rights of the Manager. The transferee
of all or any part of the interest of a Member in the Company by operation of
law shall not, by virtue of such transfer, succeed to any rights as a member in
the Company.
15. Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company only in each instance with
the consent of both Members, except in the case of a permitted assignment under
Section 14 hereof.
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LLC Agreement of MLP GP LLC
16. Limited Liability. Except as otherwise provided by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and neither the Members nor the Manager shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a member or manager of the Company.
17. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws, without regard to principles of conflict of laws.
18. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by each Member.
19. Counterparts; Facsimile. This Agreement may be executed in
counterparts and delivery of executed copies may be effected by facsimile.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Limited Liability Company Agreement as of
the date first above written.
MEMBERS:
VORNADO MLP GP L.L.C., a Delaware limited liability company
By: Vornado Realty L.P., its sole member
By: Vornado Realty Trust, its general partner
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President,
Finance and Administration
XXXXXXX MLP CORP., a Delaware limited liability
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
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LLC Agreement of MLP GP LLC
ANNEX I
Percentage Interests of Members
Vornado 50%
WEM 50%
SCHEDULE 7(d)
[List of decisions requiring Vornado consent]
(i) create, incur, assume or materially modify any debt or issue any
guarantees on behalf of the MLP or any of its subsidiaries or the
Company or any of its subsidiaries (collectively, "MLP Entities"),
except for (A) the creation, incurrence, assumption or modification of
debt in the aggregate principal amount not to exceed $2.5 million at any
time outstanding for MLP Entities and all Covered Transaction Entities
(such term, any other capitalized term not defined in this Schedule or
the Agreement to which it is attached shall be as defined in the Xxxxxxx
Agreement), taken together, (B) guarantees of any debt incurred pursuant
to clause (A) above, (C) other guarantees for MLP Entities and all
Covered Transaction Entities taken together which when added to the then
outstanding principal amount of the debt permitted by clause (A) above
shall not exceed $2.5 million, and (D) the incurrence of indebtedness
and other obligations (collectively, the "Fleet Loan") pursuant to the
Loan Agreement, dated as of December 31, 2001, among the MLP, Fleet
National Bank, as Agent, and the "Lenders" identified therein, and
pursuant to the other documents and agreements related thereto in favor
of said Agent and Lenders. For purposes of this clause (i) and clause
(ii) below, the amount of any guarantee shall be equal to the amount of
the obligation guaranteed thereunder or, if less, the amount to which
such guarantee is specifically limited;
(ii) create, incur, assume or materially modify any debt or issue any
guarantees on behalf of any individual MLP subsidiary, except for,
subject to clause (i) above, (A) the creation, incurrence, assumption or
modification of debt in an aggregate principal amount not to exceed
$100,000 at any time outstanding for any individual MLP subsidiary, (B)
guarantees of any debt incurred pursuant to clause (A) above, and (C)
other guarantees for any MLP subsidiary that, when added to the then
outstanding principal amount of the debt for such MLP subsidiary shall
not exceed $100,000;
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LLC Agreement of MLP GP LLC
(iii) create, grant or assume any pledge or other security interest with
respect to the property of the Company or any MLP Entity, except for
security interests securing debt or guarantees made pursuant to clause
(i) or clause (ii) above;
(iv) sell, alone or in a series of related transactions, a material amount of
the assets of any MLP Entity; as used herein "material" shall mean with
a gross asset value of $100,000 or more;
(v) [intentionally omitted];
(vi) admit additional members or partners or issue any equity or other
beneficial interest in the Company (or any subsidiary thereof) or any
other MLP Entity;
(vii) carry out any merger, sale of a significant portion of the business or
assets, consolidation, reorganization, dissolution, winding up,
liquidation or other similar transaction of or involving the Company or
any other MLP Entity;
(viii) amend this Agreement or any organizational document of any other MLP
Entity;
(ix) distribute cash or other assets of the Company or, other than to the
Company or any wholly-owned subsidiary thereof, any other MLP Entity;
(x) engage in any transaction involving the Company or any other MLP Entity,
on the one hand, and a party hereto or an Affiliate of such party, on
the other hand, except for (a) transactions described on Schedule (x)
hereto, and (b) transactions involving U.S. Realty Advisors LLC and
Winthrop Financial as described on Schedule (x) hereto;
(xi) purchase assets, including securities;
(xii) forgive any debt in excess of $25,000 owed to the Company or any other
MLP Entity;
(xiii) enter into any contract or instrument providing for (A) personal
liability on the part of Vornado, Vornado Trust, Vornado Parent, any
Vornado LP or any other member of the Vornado Group or, (B) to the
extent indemnification therefor will be sought hereunder from the
Company, any MLP Entity or any member of the Vornado Group, any personal
liability on the part of any member of the Apollo Group;
(xiv) institute bankruptcy proceedings, or acquiesce in any insolvency filing,
with respect to the Company or any subsidiary thereof or any other MLP
Entity;
(xv) grant other persons or entities control rights with respect to any
material aspect of the business or affairs of the Company or any other
MLP Entity except as an ordinary incident to a loan transaction
otherwise permitted under the above terms of this Schedule or resulting
from a transfer permitted pursuant to the Agreement;
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LLC Agreement of MLP GP LLC
(xvi) change the nature or business of the Company or any other MLP Entity in
any material respect;
(xvii) select or change the accountants to the Company or any other MLP Entity;
(xviii) settle any claim by or against the Company or any other MLP Entity in
which the amount asserted is $25,000 or more or if the settlement
requires an admission of guilt or wrongdoing;
(xix) except as permitted by the Agreement, sell, transfer, encumber, pledge
or otherwise convey in any respect any interest or asset of any MLP
Entity, or any cash flow therefrom; or
(xx) operate any MLP Entity in a manner inconsistent with the REIT Deal
Summary or Optional REIT Summary approved or deemed approved by Vornado.
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