LIMITED LIABILITY COMPANY AGREEMENT OF WELLS REIT II - MACARTHUR RIDGE I, LLC Dated as of November 2, 2005
Exhibit 3.57
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXX REIT II - MACARTHUR RIDGE I, LLC
Dated as of November 2, 2005
THE MEMBERSHIP INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP INTEREST MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY SECURITIES LAW) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE SECURITIES LAWS WITH RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A MEMBERSHIP INTEREST ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE APPLICABLE PROVISIONS OF THIS AGREEMENT ARE SATISFIED.
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXX REIT II - MACARTHUR RIDGE I, LLC
This Limited Liability Company Agreement (this “Agreement”) of Xxxxx REIT II - MacArthur Ridge I, LLC (the “Company”), dated effective as of November 2, 2005, is adopted, executed and agreed to by Xxxxx Operating Partnership II, L.P., a Delaware limited partnership (“Xxxxx”):
ARTICLE I
DEFINITIONS
1.01 Definitions. As used in this Agreement, the following terms have the following meanings:
“Act” means the Delaware Limited Liability Company Act (6 Del C. § 18-101, et seq.) and any successor statute, as amended from time to time.
“Agreement” has the meaning given that term in the introductory paragraph.
“Capital Contribution” means any contribution by the Member to the capital of the Company.
“Certificate” means the Certificate of Formation of the Company filed with the Delaware Secretary of State.
“Company” has the meaning given that term in the introductory paragraph.
“Member” means Xxxxx and other Person(s) or entities the Company may grant a membership interest to from time to time.
“Person” has the meaning given that term in Section 18-101(12) of the Act.
“Proceeding” has the meaning given that term in Section 6.01.
Other terms defined herein have the meanings so given them.
1.02 Construction. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine and neuter. All references to Articles and Sections refer to articles and sections of this Agreement. Terms used with initial capital letters will have the meanings specified, applicable to both singular and plural forms, for all purposes of this Agreement. The word include (and any variation) is used in an illustrative sense rather than a limited sense. The word day means a calendar day.
ARTICLE II
ORGANIZATION
2.01 Organization. The Company is organized as a Delaware limited liability company under and pursuant to the Act.
2.02 Name. The name of the Company is “Xxxxx REIT II - MacArthur Ridge I, LLC” and all Company business must be conducted in that name or such other names that comply with applicable law as the Member may select from time to time.
2.03 Registered Office; Registered Agent; Principal Office in the United States; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Member may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Member may designate from time to time in the manner provided by law. The principal office of the Company in the United States shall be at such place as the Member may designate from time to time, which need not be in the State of Delaware. The Company may have such other offices as the Member may designate from time to time.
2.04 Purpose. The purpose of the Company is to engage in any lawful business, purpose or activity permitted by the Act.
2.05 Powers. The Company has all of the powers necessary or convenient to achieve its purposes and to further its business.
2.06 Legal Title. Legal title to the assets of the Company will be taken and at all times held in the name of the Company.
2.07 Qualifications. The Member may take any and all actions deemed reasonably necessary by the Member to qualify the Company in foreign jurisdictions.
2.08 Mergers and Exchanges. With the consent of the Member, the Company may be a party to (a) a merger, or (b) an exchange or acquisition of the type described in Section 18-209 of the Act.
2.09 Liability to Third Parties. The Member shall not be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court.
2.10 Resignation of the Member. The Member may resign from the Company prior to the dissolution and winding up of the Company.
2.11 Transfer or Pledge by the Member. The Member may transfer or pledge its interest in the Company without restriction. The pledge or hypothecation of, or the granting of any security interest or other lien or encumbrance against, all or part of the Member’s membership interest in the Company by the Member will not cause the withdrawal of the Member from the Company.
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2.12 Bankruptcy of the Member. The Member shall not cease to be a Member of the Company by virtue of the occurrence of any of the events listed in Section 18-304 of the Act.
2.13 Duration. The period of duration of the Company is perpetual, unless the Company dissolves in accordance with the provisions of this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.01 Initial Contribution. The Member has made a Capital Contribution of One Thousand Dollars ($1,000) to the Company.
3.02 Subsequent Contributions. The Member may make additional contributions to the capital of the Company at such times and in such amounts as the Member deems appropriate.
3.03 Advances by the Member. If the Company does not have sufficient cash to pay its obligations, the Member may advance all or part of the needed funds to or on behalf of the Company. An advance described in this Section 3.03 constitutes a loan from the Member to the Company, bears interest at a rate determined by the Member from the date of the advance until the date of payment, and is not a Capital Contribution.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.01 Allocations. All items of income, gain, loss, deduction, and credit of the Company shall be allocated to the Member.
4.02 Distributions. Subject to the limitations of Section 18-607 of the Act, from time to time the Member may cause the Company to make a distribution of cash or other property to the Member. From time to time the Member also may cause property of the Company other than cash to be distributed to the Member, which distribution may be made subject to existing liabilities and obligations.
ARTICLE V
MANAGEMENT
5.01 Management. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member.
5.02 Officers. The Member may appoint officers of the Company. Any such officer shall have such authority and duties as the Member may, from time to time, delegate to them. Unless the Member otherwise specifies, if the title of an officer is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the Member pursuant to the preceding sentence. The officers of the Company shall hold office until their successors are chosen and qualified or until their death,
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resignation, or removal. An officer may resign at any time upon giving written notice to the Company. The Member may remove an officer with or without cause, but such removal shall be without prejudice to the contract or other legal rights, if any, of the person so removed. Election or appointment of the officers shall not of itself create contract rights. The Member shall fill any vacancy occurring by death, resignation, removal or otherwise. The officers shall be paid such compensation for their services as determined from time to time by the Member.
5.03 Action by Written Consent. Any action required or permitted to be taken at a meeting of the Member(s) under the provisions of any applicable law, the Certificate or this Agreement may be taken without a meeting if a consent in writing setting forth the action so taken is signed by a majority of all Member(s). Such consent shall have the same force and effect as a vote of a majority of the Member(s). Subject to the provisions required or permitted for notice of meetings, unless otherwise restricted by any applicable law, the Certificate or this Agreement, Member(s) may participate in and hold a meeting of such Member(s) by conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting, except where a Person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE VI
INDEMNIFICATION
6.01 Right to Indemnification. Subject to the limitations and conditions as provided in this Article VI, each Person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he, or a Person of whom he is the legal representative, is or was a Member of the Company shall be indemnified by the Company to the fullest extent permitted by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including, without limitation, attorneys’ fees) actually incurred by such Person in connection with such Proceeding, even if such judgments, penalties, fines, settlements and expenses are attributable to the Member’s negligence or result from any statutorily imposed strict liability, and indemnification under this Article VI shall continue as to a Person who has ceased to serve in the capacity that initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article VI shall be deemed contract rights, and no amendment, modification or repeal of this Article VI shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any such amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article VI could involve indemnification for negligence or under theories of strict liability.
6.02 Advance Payment. The right to indemnification conferred in this Article VI shall include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 6.01 who was, is or is threatened to
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be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided, however, that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding, shall be made only upon delivery to the Company of a written affirmation by the Person of his good faith belief that he has met the standard of conduct necessary for indemnification under this Article VI and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article VI or otherwise.
6.03 Indemnification of Officers, Employees and Agents. The Company shall indemnify and advance expenses to an officer, employee or agent of the Company to the same extent and subject to the same conditions under which it may indemnify and advance expenses to a Member under this Article VI; and, the Company may indemnify and advance expenses to Persons who are not or were not a Member, officer, employee or agent of the Company but who are or were serving at the request of the Company as a member, manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in such a capacity or arising out of his status as such a Person to the same extent that it may indemnify and advance expenses to a Member under this Article VI.
6.04 Appearance as a Witness. Notwithstanding any other provision of this Article VI, the Company may pay or reimburse expenses incurred by a Person in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not a named defendant or respondent in the Proceeding.
6.05 Nonexclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VI shall not be exclusive of any other right that the Member or other Person indemnified pursuant to this Article VI may have or hereafter acquire under any law (common or statutory), provision of the Certificate or this Agreement, agreement, vote of the Member or otherwise.
6.06 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as an officer, employee or agent of the Company or is or was serving at the request of the Company as a member, manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such Person against such expense, liability or loss under this Article VI.
6.07 Savings Clause. If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless the Member or any other Person indemnified pursuant to this Article VI as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this
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Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII
TAXES AND BOOKS
7.01 Federal Income Tax Treatment. For federal income tax purposes, the Company shall be disregarded as an entity separate from the Member pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii). The Company shall file no federal income tax returns. The Member is hereby authorized to make such elections and to take any and all action to ensure that the Company is disregarded as an entity separate from the Member for federal income tax purposes.
7.02 Other Tax Returns. Subject to Section 7.01, the Member shall cause to be prepared and filed all necessary tax returns for the Company.
7.03 Maintenance of Books and Records. The Company shall keep accurate books and records of accounts. The calendar year shall be the accounting year of the Company. The Member shall be permitted access to all books and records of the Company at the principal office of the Company.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION
8.01 Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following:
(a) The written consent of the Member;
(b) At any time there are no Members, unless the business of the Company is continued pursuant to Section 18-801(4) of the Act; and
(c) Entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.
The death, retirement, resignation, expulsion, bankruptcy or dissolution of any Member or the occurrence of any other event that terminates the continued membership of any Member shall not cause the Company to be dissolved or its affairs to be wound up.
8.02 Liquidation and Termination. On dissolution of the Company, the Member shall act as liquidating trustee or the Member may appoint one or more other Persons to act as liquidating trustee(s). The liquidating trustee shall proceed diligently to wind up the affairs of the Company in accordance with Section 18-804 of the Act and make final distributions to the Member. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidating trustee shall continue to operate the Company assets with all of the power and authority of the Member.
8.03 Deficit Capital Accounts. Notwithstanding anything to the contrary contained in this Agreement, and notwithstanding any custom or rule of law to the contrary, the Member shall
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not be responsible for any deficit in any capital account attributed to the Member, and upon dissolution of the Company any such deficit shall not be an asset of the Company and the Member shall not be obligated to contribute such amount to the Company to bring the balance of the Member’s capital account to zero.
8.04 Certificate of Cancellation. On completion of the distribution of Company assets as provided herein, the Company is terminated, and the Member (or such other Person or Persons as the Act may require or permit) shall file a Certificate of Cancellation with the Secretary of State of Delaware and take such other actions as may be necessary to terminate the Company.
ARTICLE IX
GENERAL PROVISIONS
9.01 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement of the Member relating to the Company and supersedes all prior contracts or agreements with respect to the internal governance of the Company, whether oral or written.
9.02 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.
9.03 Amendment or Modification. This Agreement may be amended or modified from time to time only by a written instrument adopted by the Member.
9.04 Binding Effect. This Agreement is binding on, and inures to the benefit of, the Member and its heirs, legal representatives, successors, and assigns.
9.05 Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law.
9.06 Headings. Article and Section titles have been inserted for convenience of reference only, and they are not intended to affect the meaning or interpretation of this Agreement.
9.07 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and (a) any provision of the Certificate, or (b) any mandatory provision of the Act, the applicable provision of this Agreement shall control except to the extent required by the Act.
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IN WITNESS WHEREOF, the Member has executed this Limited Liability Company Agreement as of the date first set forth above.
| SOLE MEMBER: | ||
| XXXXX OPERATING PARTNERSHIP II, L.P., a Delaware limited partnership | ||
| By: | Xxxxx Real Estate Investment Trust II, Inc., a Maryland corporation, its general partner | |
| By: /s/ Xxxxx Xxxxx | ||
| Name: Xxxxx Xxxxx | ||
| Title: Senior Vice President | ||
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