LIMITED LIABILITY COMPANY AGREEMENT
OF
INLAND REAL ESTATE BSC I LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of Inland Real Estate BSC I LLC (the
"Company"), is entered into by Inland Real Estate BSC I Corporation, as the
sole member (the "Initial Member"). Capitalized terms used herein and not
otherwise defined have the meanings set forth on Schedule A hereto.
The Initial Member, by execution of this Agreement, (i) hereby forms
the Company as a limited liability company pursuant to and in accordance
with the Delaware Limited Liability Company Act (6 Del.C. 18-101, et
seq.), as amended from time to time (the "Act"), and (ii) hereby agrees as
follows:
1. Name.
The name of the limited liability company hereby created is
Inland Real Estate BSC I LLC.
2. Principal Business Office.
The principal business office of the Company shall be located at
0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, XX 00000, or such other location as may
hereafter be determined by the Member.
3. Registered Office.
The address of the registered office of the Company in the State
of Delaware is c/o The Corporation Trust Company, Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
4. 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 is The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
5. Members.
a. The name and the mailing address of the Initial Member is
set forth on Schedule B attached hereto.
b. Subject to Section 9(b), the Member may act by written
consent.
6. Certificates.
Xxxxxx X. Xxxxxxxxx, as an "authorized person" within the meaning
of the Act, has executed, delivered and filed the Certificate of Formation
with the Secretary of State of the State of Delaware. Upon the filing of
the Certificate of Formation with the Secretary of State of the State of
Delaware, his powers as an "authorized person" ceased, and the Member
thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The
Member shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to
qualify to do business in Illinois, Indiana, Michigan, Minnesota, Ohio and
Wisconsin and in any other jurisdiction in which the Company may wish to
conduct business.
7. Purposes.
Subject to Section 9(b), the purposes of the Company are to
engage in the following activities:
a. to acquire, own, hold, administer, service, manage, sell
and otherwise deal with the Properties;
b. to issue, authorize and deliver the Note and other Basic
Documents;
c. to execute, deliver and perform the Basic Documents;
d. to do such other things and carry on any other activities
which are necessary, convenient or incidental to any of the foregoing
purposes.
8. Powers.
Subject to Section 9(b), the Company shall have and exercise all
powers necessary, convenient or incidental to accomplish its purposes as
set forth in Section 7 conferred upon limited liability companies formed
pursuant to the Act.
9. Management.
a. Member(s). Subject to Section 9(b), the business and
affairs of the Company shall be managed by or under the direction of the
Member. Subject to Section 9(b), the Member has the authority to bind the
Company.
b. Limitations on the Company's Activities.
(i) This Section 9(b) is being adopted in order to comply
with certain provisions required in order to qualify the Company as a
"special purpose entity" for the purpose of the Indebtedness. So long as
any portion of the Indebtedness is outstanding the provisions of this
Section 9(b) shall supercede and control any other provision hereof to the
contrary.
(ii) The Member shall not, so long as any Indebtedness is
outstanding, amend, alter, change or repeal Sections 7, 8, 9, 20, 21, 22,
24, 26 or 30 of this Agreement without consent of Lender, or after a
securitization of the Loan, only upon (a) confirmation from each Rating
Agency that such action would not result in the qualification, withdrawal
or downgrade of any securities rating assigned in such securitization, and
(b) Lender's consent to such action.
(iii) Notwithstanding any other provision of this
Agreement and any provision of law that otherwise so empowers the Company
or the Member, so long as any Indebtedness is outstanding, neither the
Company nor the Member shall be authorized or empowered, nor shall they
permit the Company without the prior written consent of the Member
including the unanimous consent of the board of directors of the Member, to
institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Company or file a petition seeking, or consent to,
reorganization or relief with respect to the Company under any applicable
federal or state law relating to bankruptcy, or consent to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or a substantial part of its property, or
make any assignment for the benefit of creditors of the Company, or admit
in writing the Company's inability to pay its debts generally as they
become due, or, to the fullest extent permitted by law, take action in
furtherance of any such action, or dissolve or liquidate the Company, or
consolidate or merge the Company with or into any Person, or sell all or
substantially all of the assets of the Company.
(iv) Unless otherwise provided in the Loan Agreement, so
long as any Indebtedness is outstanding, the Company shall, and the Member
shall cause the Company to do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter
and statutory) and franchises. The Company shall, and the Member also
shall cause the Company to:
(1) maintain its own separate books and records and
bank accounts;
(2) at all times hold itself out to the public as a
legal entity separate from the Member and any other Person and not identify
itself as a division of any other person or entity;
(3) observe all limited liability company or other
formalities;
(4) file its own tax returns provided, however, that
Company's assets may be included in a consolidated tax return of its parent
companies if inclusion on such a consolidated tax return is required to
comply with the requirement of generally accepted accounting principles
("GAAP") or any other applicable law. Company shall maintain its books,
records, resolutions and agreements as official records.
(5) not commingle its assets with assets of any other
Person and hold all of its assets in its own name;
(6) conduct its business in its own name;
(7) maintain all of its books, records, financial
statements and bank accounts separate from those of any other person and
Company's assets and liabilities will not be listed as assets or
liabilities on the financial statement of any other person; provided,
however, that Company's assets and liabilities may be included in a
consolidated financial statement of its parent companies if inclusion on
such a consolidated statements is required to comply with the requirements
of GAAP, but only if (i) such consolidated financial statements shall
contain a footnote to the effect that Company's assets and liabilities are
owned by Company and that they are being included on the financial
statement of its parent solely to comply with the requirements of GAAP, and
(ii) such assets and liabilities shall be listed on Company's own separate
balance sheet.
(8) pay its own liabilities and expenses only out of
its own funds;
(9) maintain an arm's length relationship with its
Affiliates and its Member and enter into transactions with Affiliates only
on a commercially reasonable basis;
(10) pay the salaries of its own employees, if any,
from its own funds.
(11) not hold out its credit as being available to
satisfy the obligations of others;
(12) allocate fairly and reasonably any overhead
expenses that are shared with an Affiliate, including paying for shared
office space and services performed by any employee of an Affiliate;
(13) use separate stationery, invoices and checks
bearing its own name;
(14) not pledge its assets for the benefit of any other
Person;
(15) correct any known misunderstanding regarding its
separate identity;
(16) maintain adequate capital and a sufficient number
of employees in light of its contemplated business operations;
(17) not acquire any obligations or securities of its
Affiliates, including the Member; and
(18) not make loans to any other person or entity or to
buy or hold evidence of indebtedness issued by any other person.
(v) So long as any Indebtedness is outstanding, the Company
shall not, and the Member shall not cause or permit the Company to:
(1) guarantee any obligation of any Person, including
any Affiliate;
(2) engage, directly or indirectly, in any business
other than that arising out of the issuance of the Indebtedness or the
actions required or permitted to be performed under Section 7, the Loan
Agreement or this Section 9(b);
(3) incur, create or assume any indebtedness other
than the Indebtedness or as otherwise expressly permitted under the Loan
Agreement;
(4) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities of, any Person;
(5) engage in any dissolution, liquidation,
consolidation, merger, asset sale or transfer of ownership interests other
than such activities as are expressly permitted pursuant to any provision
of the Loan Agreement; or
(6) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or other).
c. For so long as any Indebtedness is outstanding at least one
Member shall be a Special Purpose Entity (the "Special Purpose Member").
d. For so long as (i) any Indebtedness is outstanding and (ii)
there is only one Member of the Company, then:
(A) The death, retirement, resignation, expulsion,
bankruptcy or dissolution of the Member or the occurrence of any other
event that terminates the continued membership of the Member shall not
cause the Company to be dissolved or its affairs to be would up.
(B) The Member shall not cease to be a member of the
Company due to the occurrence of any of the following: (1) if the Member
(aa) makes an assignment for the benefit of creditors; (bb) files a
voluntary petition in bankruptcy; (cc) is adjudged as bankrupt or
insolvent, or has entered against it an order for relief, in any bankruptcy
or insolvency proceeding; (dd) files a petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation; files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature; (ee) files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against
him in any proceeding of this nature; (ff) seeks, consents to or acquiesces
in the appointment of a trustee, receiver or liquidator of the Member or of
all or any substantial part of its properties; (2) for failure to have
dismissed any proceeding against the Member seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation; or (3) for failure to have the
appointment of a trustee, receiver or liquidator of the Member or of all or
a substantial part of its properties vacated or stayed.
e. For so long as (i) any Indebtedness is outstanding, and (ii)
there is more than one Member of the Company, then:
(A) Upon the dissociation or withdrawal of the Special
Purpose Member from the Company, the Company would appoint a new Member
that is a Special Purpose Entity and deliver an acceptable non-
consolidation opinion to the holder of the Indebtedness and to any
applicable rating agency concerning, as applicable, the Company, the new
Special Purpose Member, and its owners.
(B) The Company's existence shall continue for so long as a
solvent member exists.
(C) The Special Purpose Member shall own at least a 1%
ownership interest in the Company.
(D) If there is a death, dissolution or other "termination
event" for the Company or any Member, the vote of a majority of the
remaining Members shall be sufficient to continue the life of the Company.
(E) Require the unanimous consent of all members (including
that of the Special Purpose Member, which will in turn require the vote of
an Independent Director) for the Borrower to:
(1) File or consent to the filing of any bankruptcy,
insolvency or reorganization case or proceeding; institute any proceedings
under any applicable insolvency law or otherwise seek any relief under any
laws relating to the relief from debts or the protection of debtors
generally;
(2) Seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar
official for the Borrower or a substantial portion of its properties;
(3) Make any assignment for the benefit of the
Borrower's creditors; or
(4) Take any action in furtherance of any of the
foregoing.
10. INTENTIONALLY OMITTED
11. INTENTIONALLY OMITTED
12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be the debts, obligations and liabilities solely
of the Company, and no Member shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being a
Member of the Company.
13. Capital Contributions.
The Initial Member is deemed admitted as the Member of the
Company upon the execution and delivery of this Agreement. The Initial
Member has contributed the amount of cash to the Company listed on Schedule
B attached hereto.
14. Additional Contributions.
The Initial Member is not required to make any additional capital
contribution to the Company. However, a Member may make additional capital
contributions to the Company at any time upon the written consent of such
Member. To the extent that the Member makes an additional capital
contribution to the Company, the Member shall revise Schedule B of this
Agreement. The provisions of this Agreement, including this Section 14,
are intended solely to benefit the Member and, to the fullest extent
permitted by law, shall not be construed as conferring any benefit upon any
creditor of the Company (and no such creditor of the Company shall be a
third-party beneficiary of this Agreement) and no Member shall have any
duty or obligation to any creditor of the Company to make any contribution
to the Company or to issue any call for capital pursuant to this Agreement.
15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the
Member.
16. Distributions.
Distributions shall be made at the times and in the aggregate
amounts determined by the Member. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to
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 any other
applicable law or the Basic Documents.
17. Books and Records.
The Member shall keep or cause to be kept complete and accurate
books of account and records with respect to the Company's business. The
books of the Company shall at all times be maintained by the Member. Each
Member, if more than one, and its duly authorized representatives shall
have the right to examine the Company books, records and documents during
normal business hours. The Company shall not have the right to keep
confidential from the Member any information which would otherwise be
permitted to keep confidential from the Member pursuant to Section 18-
305(c) of the Act. The Company's books of account shall be kept using the
method of accounting determined by the Member. The Company's independent
auditor shall be an independent public accounting firm selected by the
Member.
18. Reports.
a. Within 60 days after the end of each fiscal quarter, the
Member shall cause to be prepared an unaudited report setting forth as of
the end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Company for such fiscal quarter.
b. The Member shall cause to be prepared within 90 days after
the end of each fiscal year, an audited or unaudited report setting forth
as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal
year; and
(iii) a statement of such Member's capital account.
c. The Member shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent accountants to
prepare and transmit to each Member as promptly as such tax information as
may be reasonably necessary to enable such Member to prepare its federal,
state and local income tax returns relating to such fiscal year.
19. INTENTIONALLY OMITTED.
20. Exculpation and Indemnification.
a. No Member, employee or agent of the Company and no director,
officer, employee, representative, agent or Affiliate of the Member
(collectively, the "Covered Persons") shall be liable to the Company or any
other Person who has an interest in or claim against the Company for any
loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company
and in a manner reasonably believed to be within the scope of the authority
conferred on such Covered Person by this Agreement, except that a Covered
Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
b. To the fullest extent permitted by applicable law, a Covered
Person shall be entitled to indemnification from the Company for any loss,
damage or claim incurred by such Covered Person by reason of any act or
omission performed or omitted by such Covered Person in good faith on
behalf of the Company and in a manner reasonably believed to be within the
scope of the authority conferred on such Covered Person by this Agreement,
except that no Covered Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Covered Person by
reason of such Covered Person's gross negligence or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity
under this Section 20 shall be provided out of and to the extent of Company
assets only, and no Member shall have personal liability on account
thereof.
c. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by
the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on
behalf of the Covered Person to repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as authorized in
this Section 20.
d. A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters
the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets,
liabilities, or any other facts pertinent to the existence and amount of
assets from which distributions to the Member might properly be paid.
e. To the extent that, at law or in equity, a Covered Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Company or to any other Covered Person, a Covered Person acting under
this Agreement shall not be liable to the Company or to any other Covered
Person for its good faith reliance on the provisions of this Agreement or
any approval or authorization granted by the Company or any other Covered
Person. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Covered Person otherwise existing at law or
in equity, are agreed by the Member to replace such other duties and
liabilities of such Covered Person.
f. The foregoing provisions of this Section 20 shall survive
any termination of this Agreement.
21. Assignments. Without the prior written consent of Lender, neither
Company nor its Member, except as permitted under the Loan Agreement,
shall:
(i) directly or indirectly sell, transfer, convey, mortgage,
pledge, or assign the Properties, any part thereof or any interest therein
(including any ownership interest in Company or Member,
(ii) further encumber, alienate, xxxxx x xxxx or xxxxx any
other interest in the Properties or any part thereof (including any
ownership interest in Company and the Member) whether voluntarily or
involuntarily, or
(iii) enter into any easement or other agreement granting
rights in or restricting the use or development of the Properties.
If the Member transfers all of its limited liability company interest in
the Company pursuant to this Section 21, the transferee shall be admitted
to the Company as a member of the Company upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions
of this Agreement, which instrument may be a counterpart signature page to
this Agreement. Such admission shall be deemed effective immediately prior
to the transfer, and, immediately following such admission, the transferor
Member shall cease to be a member of the Company. Notwithstanding
anything in this Agreement to the contrary, any successor to a Member by
merger or consolidation in compliance with the Basic Documents shall,
without further act, be a Member hereunder, and such merger or
consolidation shall not constitute an assignment for purposes of this
Agreement.
Notwithstanding anything to the contrary contained in this Section 21, no
transfer of any direct or indirect ownership interest in the Company may be
made such that transferee owns in the aggregate, with the ownership
interest of its Affiliate and family member in the Company, more than 49%
interest in the Company, unless Company delivers a non-consolidation
opinion to the holder of the Indebtedness and to any applicable rating
agency concerning, as applicable, the Company, the transferee and/or their
respective owners.
22. Resignation.
So long as any Indebtedness is outstanding, the Initial Member
may not resign unless consistent with the transfer and substitution
provisions of the Loan Agreement. A Member (other than the Initial Member)
may resign from the Company with the written consent of the Initial Member.
If a Member is permitted to resign pursuant to this Section 22, an
additional member of the Company shall be admitted to the Company upon its
execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be
deemed effective immediately prior to the resignation, and, immediately
following such admission, the resigning Member shall cease to be a member
of the Company.
23. INTENTIONALLY OMITTED
24. Dissolution.
a. Subject to Section 9(b), the Company shall be dissolved, and
its affairs shall be wound up upon the first to occur of the following: (i)
the retirement, resignation or dissolution of the Member or the occurrence
of any other event which terminates the continued membership of the Member
in the Company unless the business of the Company is continued in a manner
permitted by the Act or (ii) the entry of a decree of judicial dissolution
under Section 18-802 of the Act.
b. Notwithstanding any other provision to the contrary, the
Bankruptcy of the Member shall not cause the 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. Notwithstanding any other
provision of this Agreement, the Member waives any right it might have
under Section 18-801(b) of the Act to agree in writing to dissolve the
Company upon the Bankruptcy of the Member or the occurrence of an event
that causes a Member to cease to be a member of the Company.
c. 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.
25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each Member hereby irrevocably waives any
right or power that such Member might have to cause the Company or any of
its assets to be partitioned, to cause the appointment of a receiver for
all or any portion of the assets of the Company, to compel any sale of all
or any portion of the assets of the Company pursuant to any applicable law
or to file a complaint or to institute any proceeding at law or in equity
to cause the dissolution, liquidation, winding up or termination of the
Company. No Member shall have any interest in any specific assets of the
Company, and no Member shall have the status of a creditor with respect to
any distribution pursuant to Section 16 hereof. The interest of the Member
in the Company is personal property.
26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit
of or enforceable by any creditor of the Company or by any creditor of any
Member. Nothing in this Agreement shall be deemed to create any right in
any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole
or in part for the benefit of any third Person.
27. Severability of Provisions.
Each provision of this Agreement shall be considered severable
and if for any reason any provision or provisions herein are determined to
be invalid, unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the operation
of or affect those portions of this Agreement which are valid, enforceable
and legal.
28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof.
29. Governing Law.
This Agreement shall be governed by and construed under the laws
of the State of Delaware (without regard to conflict of laws principles),
all rights and remedies being governed by said laws.
30. Amendments.
Subject to Section 9(b), this Agreement may not be modified,
altered, supplemented or amended except pursuant to a written agreement
executed and delivered by the Member.
31. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement and all of
which together shall constitute one and the same instrument.
32. Notices.
Any notices required to be delivered hereunder shall be in
writing and personally delivered, mailed or sent by telecopy, electronic
mail, or other similar form of rapid transmission, and shall be deemed to
have been duly given upon receipt (a) in the case of the Company, to the
Company at its address in Section 2, (b) in the case of a Member, to such
Member at its address as listed on Schedule B attached hereto and (c) in
the case of either of the foregoing, at such other address as may be
designated by written notice to the other party.
33. Enforcement by Board of Directors of Member
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8,
9, 10, 20, 21, 22, 24, 26, 30 or this Section 33, constitutes a legal,
valid and binding agreement of the Member, and is enforceable against the
Member by each member of the board of directors of the Member (including
the Independent Director of the board), in accordance with its terms.
Notwithstanding, any other provision of this Agreement, the Independent
Director of the Member is an intended beneficiary of the Agreement.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Agreement as of the 12th day of April,
1999.
MEMBER:
INLAND REAL ESTATE BSC I
CORPORATION, a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the Company hereby agrees to be bound by this
Agreement and hereby becomes a party thereto, this 12th day of April,
1999.
INLAND REAL ESTATE BSC I LLC,
a Delaware limited liability company,
By: INLAND REAL ESTATE BSC I
CORPORATION, a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" has the meaning set forth in the Loan Agreement.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented form time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged as bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceeding,
(iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against it in any proceeding of this nature, (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of the Person or of all or any substantial part of its
properties, or (vii) if 120 days after the commencement of any proceeding
against the Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, if the proceeding has not been dismissed, or if within
90 days after the appointment without such Person's consent or acquiescence
of a trustee, receiver or liquidator of such Person or of all or any
substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated.
"Basic Documents" means Loan Agreement, Promissory Note, Mortgage and
Security Agreement, Assignment of Leases and Rents, Assignment of
Management Agreement and Subordination of Management Fees, Environmental
Indemnity Agreement, and Cash Management Agreement and any other Loan
Documents executed by the Company in favor of the Lender.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on April
12, 1999, as amended or amended and restated from time to time.
"Collateral" has the meaning assigned to that term in the Loan Agreement.
"Company" means Inland Real Estate BSC I LLC, a Delaware limited liability
company.
"Control" means the possession, directly or indirectly, or the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or general partnership
or managing member interests, by contract or otherwise. "Controlling" and
"Controlled" shall have correlative meanings. Without limiting the
generality of the foregoing, a Person shall be deemed to Control any other
Person in which it owns, directly or indirectly, a majority of the
ownership interests.
"Covered Persons" has the meaning set forth in Section 20a.
"Indebtedness" means the obligations of the Company arising under the Note.
"Initial Member" means Inland Real Estate BSC I Corporation, as the sole
member of the Company.
"Lender" means Bear, Xxxxxxx Funding, Inc., and its successors and assigns.
"Loan Agreement" means that certain Loan Agreement by and between the
Company and Bear Xxxxxxx Funding, Inc.
"Member" means the Initial Member and includes any Person admitted as an
additional member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement.
"Note" shall mean that certain note made by Company in favor of Bear
Xxxxxxx Funding, Inc., as the same may be amended, restated, replaced,
supplemented, or otherwise modified from time to time, including any
Defeased Note and Undefeased Note that may exist from time to time.
"Note Trustee" means the note trustee as appointed by Bear Xxxxxxx Funding,
Inc.
"Officer's Certificate" has the meaning assigned to that term in the Loan
Agreement.
"Properties" means those properties listed on Schedule C.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association,
joint-stock company, trust, unincorporated organization, or other
organization, whether or not a legal entity, and any governmental
authority.
"Rating Agency" has the meaning assigned to that term in the Loan
Agreement.
"Rating Agency Condition" means, with respect to any action that each of
the Rating Agencies shall have notified the Lender in writing that such
action will not result in a reduction, qualification, or withdrawal of the
then current rating by such Rating Agency of any Series or Class of the
Notes.
"Special Purpose Entity" has the meaning assigned to that term in the Loan
Agreement.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including"
shall be deemed to be followed by the phrase "without limitation." The
terms "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Section,
paragraph or subdivision. The Section titles appear as a matter of
convenience only and shall not affect the interpretation of this Agreement.
All Section, paragraph, clause, Exhibit or Schedule references not
attributed to a particular document shall be references to such parts of
this Agreement.
SCHEDULE B
Member(s)
Agreed Value of Percentage
Name Mailing Address Capital Contribution Interest
Inland Real Estate 0000 Xxxxxxxxxxx Xx.
BSC I Corporation Xxx Xxxxx, XX 00000 100%
SCHEDULE C
List of the Properties
XXXXXXXXXX XXXXX XXXXXXXX XXXXXX
XX Xxxxxx xx Xxxxx Xxxxx 00 & Xxxxxxx Xxxx.
Xxxxxxxxxx, XX
PARK CENTER PLAZA SHOPPING CENTER
SW Intersection of 000xx Xx. xxx Xxxxxx Xxx.
Xxxxxx Xxxx, XX
FAIRVIEW HEIGHTS PLAZA SHOPPING CENTER
Corner of Interstate 64 & Xxxx Xxxx
Fairview Heights, IL
STAPLES STORE
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX
RIVERPLACE CENTRE SHOPPING CENTER
NE Corner of Xxxxx Street & Xxxxx Street
Noblesville, IN
TWO RIVERS PLAZA SHOPPING CENTER
1108, 1110, 1112, 1116, 1122, 1128 & 0000 Xxxxxxxx Xx.
Xxxxxxxxxxx, XX
CIRCUIT CITY STORE
0000 X. Xxxxx Xxxxxxx Xx.
Xxxxxxxx Xxxx, XX
HOLLYWOOD VIDEO STORE
0000 000xx Xxxxxx
Xxxxxxx, XX
ROSE PLAZA PHASE I - TOTAL BEVERAGE
f/k/a Elmwood Park Place Shopping Center
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxx, XX
ROSE PLAZA PHASE II
7330 and 0000 X. Xxxxx Xxxxxx
Xxxxxxx Xxxx, XX
BAYTOWNE SQUARE SHOPPING CENTER
0000-0000 X. Xxxxxxxx
Xxxxxxxxx, XX
BAYTOWNE SHOPPES
000 X. Xxxxxxxxxx Xx.
Xxxxxxxxx, XX
WENDY'S RESTAURANT
0000 X. Xxxxxxxx
Xxxxxxxxx, XX
XXXXXXXX'X PLAZA AT MARKET SQUARE
17105-17165 W. Mound Rd.
Brookfield, WI
ORLAND GREENS SHOPPING CENTER
NW Corner of 151st & LaGrange Rd.
Orland Park, IL
PLYMOUTH COLLECTION SHOPPING CENTER
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX
CAR MAX
000 X. Xxxx Xxxx
Xxxxxxxxxx, XX
