LIMITED LIABILITY COMPANY AGREEMENT OF WHITFIELD SARASOTA LLC
OF
WHITFIELD
SARASOTA LLC
THIS
LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”)
of
Whitfield
Sarasota LLC
(the
“Company”),
is
entered into by Lightstone Sarasota Industrial LLC, a Delaware limited liability
company, as the managing member (the “Managing
Member”),
and
LVP Sarasota Industrial LLC, a Delaware limited liability company (”LVP”;
together with the Managing Member, collectively, the “Members”
and
individually, a “Member”).
LVP
shall sometimes hereinafter also be referred to as the “Non-Managing
Member.”
Capitalized terms used and not otherwise defined herein have the meanings set
forth on Schedule
A
hereto.
RECITALS
WHEREAS,
the Company was formed on November 1, 2007 as
a
limited liability company under the Delaware Limited Liability Company Act,
as
amended from time to time (the “Act”);
WHEREAS,
the Non-Managing Member has acquired title to that certain real property located
at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (the “Property”), and the
Non-Managing Member wishes to contribute the Property to the Company in
accordance with the terms of this Agreement; and
WHEREAS,
the Members desire to state the terms and conditions of the
Company.
NOW
THEREFORE, in consideration of the premises and the agreements herein contained,
the Members hereby agree as follows:
Section
1. Name.
The
name
of the limited liability company heretofore formed and continued hereby is
WHITFIELD SARASOTA LLC.
Section
2. Principal
Business Office.
The
principal business office of the Company shall be located at 000 Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000, or such other location as may hereafter be determined by
the
Managing Member.
Section
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is
c/o
National Registered Agents, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxx 000, xx xxx Xxxx
xx
Xxxxx, Xxxxxx of Xxxx, Xxxxxxxx 00000.
Section
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 National Registered Agents, Inc., 000
Xxxxxxxxx Xxxxx, Xxxxx 000, xx xxx Xxxx xx Xxxxx, Xxxxxx of Xxxx, Xxxxxxxx
00000.
Section
5. Members.
The
mailing address of each Member is set forth on Schedule
B
attached
hereto. The Members were admitted to the Company as members of the Company
upon
their execution of counterpart signature pages to this Agreement.
The
Members may act by written consent.
Section
6. Certificates.
Xxxxxx
Xxxxxxxx is hereby designated as an “authorized person” within the meaning of
the Act, and executed, delivered and filed the Certificate of Formation of
the
Company with the Secretary of State of the State of Delaware, and such
execution, delivery and filing is hereby approved and ratified. 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 Managing Member
thereupon became the designated “authorized person” and shall continue as the
designated “authorized person” within the meaning of the Act. The Managing
Member or an Officer 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 any jurisdiction in which the Company may wish to conduct
business.
The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the
Act.
Section
7. Purposes.
The
purpose conducted or promoted by the Company has been since its formation and
will continue to be to engage in the following activities:
(i) to
acquire, improve, finance, hold, own, operate, rent, redevelop, sell, mortgage,
exchange, convey, or otherwise dispose of the Property and to execute and
deliver any documents and certificates or engage in all actions necessary and
appropriate to accomplish the foregoing; and
(ii) to
engage
in any lawful act or activity and to exercise any powers permitted to limited
liability companies organized under the laws of the State of Delaware that
are
related or incidental to and necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
(b)
The
Company, by or through the Managing Member, or any Officer on behalf of the
Company, may enter into and perform the Basic Documents, all in accordance
with
Article
9
hereof
and without any further act, vote or approval of any other Person
notwithstanding any other provision of this Agreement, the Act or applicable
law, rule or regulation. The foregoing authorization shall not be deemed a
restriction on the powers of the Managing Member or any Officer to enter into
other agreements on behalf of the Company.
2
Section
8. Powers.
The
Company, the Managing Member and the Officers of the Company on behalf of the
Company, (i) shall have and exercise all powers necessary, convenient or
incidental to accomplish its purposes as set forth in Section
7
and (ii)
shall have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
Section
9. Management.
(a)
Subject to Section
9(d),
the
business and affairs of the Company shall be managed by or under the direction
of the Managing Member.
(b)
Powers.
Subject
to Section
9(d),
the
Managing Member 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. Subject to Sections
7 and 9,
the
Managing Member has the authority to bind the Company. Notwithstanding the
foregoing, the parties expressly acknowledge that the
adoption, modification or revocation of a Major Decision requires the Approval
of the Non-Managing Member.
(c)
Managing
Member as Agent.
To the
extent of its powers set forth in this Agreement and subject to Section
9(d),
the
Managing Member is an agent of the Company for the purpose of the Company's
business, and the actions of the Managing Member taken in accordance with such
powers set forth in this Agreement shall bind the Company.
(d)
Major
Decisions.
Notwithstanding any other provisions of this Agreement, the Company and/or
the
Managing Member may not, without the Approval of the Non-Managing Member of
the
Company, take any of the following actions (each, a “Major
Decision”):
(i) borrow
money or amend the terms and conditions of any financing of the Company in
any
material respect or make elections with respect to interest periods, interest
rates or other material provisions under any such financing;
(ii) lend
money (whether on a secured or unsecured basis, but excluding trade
debt);
(iii) grant
any
mortgage, security interest or any other lien on any Property or any other
assets of the Company;
(iv) subject
all or any part of any Property to a condominium statute or convert any Property
to condominium or cooperative form of ownership;
(v) except
as
otherwise provided herein, sell all or any portion of any Property;
3
(vi) seek
or
consent to any change in the zoning or other land use regulations affecting
any
Property or any permits or approvals granted thereunder if such change will
materially adversely affect the value of the Property or the rights, interests
or obligations of the parties under this Agreement;
(vii) rebuild
or reconstruct the improvements on the Property if they are substantially
damaged by a fire or other casualty, except to the extent the Company is
required to do so pursuant to any loan secured by the Property or except to
the
extent that the cost to rebuild or reconstruct the improvements is less than
$500,000;
(viii) acquire
any real property (other than the Property), any direct or indirect interest
in
real property, or any interest in any Person;
(ix) assign,
transfer, pledge, compromise or release any of the claims of or debts or
insurance or condemnation proceeds due the Company exceeding $50,000 except
in
connection with the receipt by the Company of payment in full of such claims
or
debts;
(x) dissolve
the Company;
(xi) effect
any merger, consolidation or restructuring of the Company;
(xii) file
or
consent to the filing of any petition, either voluntary or involuntary, to
take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors
with
respect to either the Company or the Managing Member;
(xiii) purchase
or redeem all or any portion of the interest of any Member in the Company,
except as otherwise provided herein;
(xiv) form,
directly or indirectly, any subsidiary (except as may be required by the Lender
in connection with any financing or refinancing of the Property);
(xv) amend
or
otherwise modify this Agreement or any of the organizational documents of the
Company in any respect;
(xvi) enter
into or conduct any business or operations other than in connection with the
business of the Company as contemplated by Section
7
hereof
or otherwise herein;
(xvii) settle
any casualty loss (except to the extent fully covered by insurance less any
deductible) or condemnation claim in excess of $250,000;
(xviii) settle
any material litigation or threatened litigation;
(xix) enter
into any material contract or agreement that is not on then-prevailing market
terms in all respects;
4
(xx) issue
additional equity interests in itself; and
(xxi) take
any
other actions which, pursuant to the terms of this Agreement, require Approval
of all of the Members.
(e)
Deadlock
Regarding Significant Decisions; Buy/Sell Option.
In the
event there is not a unanimous vote of the Members with respect to any Major
Decision (a "Deadlock"),
whether at a meeting of the Members or by an action by written consent in
accordance with this Agreement, then within two (2) business days after such
vote (or such consent is requested by a Member) each Member shall provide to
the
other Member a written notice describing in reasonable detail the reason for
its
position with respect to the Major Decision at issue. The Members shall then
enter into good faith negotiations to amicably resolve such Deadlock and
continue such negotiations for a period of at least five (5) business days
(such
period being the "Cooling-Off
Period").
If a
Deadlock is not resolved during the Cooling-Off Period, then commencing on
the
business day following the date that the Cooling-Off Period shall have
terminated (the "Termination
Date"),
each
of the Members shall have the following rights:
(i) either
Member (the "Initiating
Member")
shall
be entitled to deliver a written notice (the "Offer
Notice")
to the
other (the "Deciding
Member")
specifying in such notice that the Initiating Member offers to purchase all,
but
not less than all, of the Membership Interests of the Deciding Member upon
the
terms and conditions specified in reasonable detail in the Offer Notice;
and
(ii) upon
receipt of an Offer Notice, the Deciding Member shall have three (3) business
days to deliver a written notice (the "Response
Notice")
to the
Initiating Member specifying in the Response Notice either that:
A. the
Deciding Member has elected to sell all of its Membership Interests in the
Company to the Initiating Member at the price and upon the terms and conditions
specified in the Offer Notice, in which case, the Initiating Member shall
purchase, and the Deciding Member shall sell, all of the Deciding Member's
Membership Interests in the Company at the price and upon the terms and
conditions specified in the Offer Notice; or
B. the
Deciding Member has elected to purchase all of the Initiating Member's
Membership Interests in the Company at the Offer Price (as defined below) and
upon the terms and conditions specified in the Offer Notice, in which case
the
Deciding Member shall purchase, and the Initiating Member shall sell, all of
the
Initiating Member's Membership Interests in the Company at the Offer Price
and
upon the terms and conditions specified in the Offer Notice.
(iii) An
Offer
Notice shall only be valid if delivered on or after the Termination Date, and
any Offer Notice delivered prior to such time shall be deemed null and void
and
have no force or effect. Each Member agrees that if an Offer Notice is not
sent
within five (5) business days following the Termination Date, then the Deadlock
shall be deemed to have been amicably resolved and the proposed action that
is
the subject of the Deadlock shall be deemed to have been Approved by the
Members.
5
(iv) Upon
delivery of an Offer Notice to either Member, then the Deciding Member shall
not
be permitted to deliver a subsequent Offer Notice and any such subsequent Offer
Notice shall be deemed null and void and have no force or effect; provided,
however,
that in
the event that each Member shall have delivered to the other an Offer Notice
on
the same day (without regard to the time of day such Offer Notice is received)
then, in such event, the Offer Notice which contains the lowest purchase price
for the other's Membership Interest in the Company shall be deemed null and
void
and have no force or effect.
(v) Notwithstanding
any provision contained herein to the contrary, in the event that the Deciding
Member has not delivered a Response Notice within the three (3) business day
period provided for in Section 9(e)(ii)
above,
then for purposes of this Agreement the Deciding Member shall be deemed to
have
made the election specified in Section
9(e)(ii)(A)
above
and thereafter the Deciding Member shall sell all of its Membership Interests
in
the Company to the Initiating Member at the price and upon the terms and
conditions specified in the Offer Notice.
(vi) The
Members agree that irreparable damage would occur in the event any of the
provisions of this Section
9(e)
were not
performed in accordance with the terms hereof and that the Members shall be
entitled to specific performance of the terms and provisions of this
Section
9(e),
in
addition to any other remedy at law or equity. The Members further agree that
time is of the essence with respect to any time periods set forth in this
Section
9(e).
(vii) For
purposes of this Section
9(e),
the
"Offer
Price"
means
the product obtained when multiplying (i) the quotient obtained when dividing
(x) the dollar amount of the price offered by the Initiating Member in the
Offer
Notice by (y) the Percentage of Membership Interest of the Deciding Member
multiplied by 100, and (ii) the Percentage of Membership Interest of the
Initiating Member multiplied by 100.
Section
10. Officers.
(a)
Officers.
The
initial Officers of the Company shall be designated by the Managing Member
and
shall consist of at least a president (the “President”)
and a
secretary (the “Secretary”).
The
Managing Member may also choose one or more vice presidents (each a
“Vice
President”),
assistant secretaries (each an “Assistant
Secretary”)
and
assistant treasurers (each an “Assistant
Treasurer”).
Any
number of offices may be held by the same person. The Managing Member may
appoint such other Officers and agents as it shall deem necessary or advisable
who shall hold their offices for such terms and shall exercise such powers
and
perform such duties as shall be determined from time to time by the Managing
Member. The salaries of all Officers and agents of the Company shall be fixed
by
or in the manner prescribed by the Managing Member. The Officers of the Company
shall hold office until their successors are chosen and qualified. Any Officer
may be removed at any time, with or without cause, by the affirmative vote
of
the Managing Member. Any vacancy occurring in any office of the Company shall
be
filled by the Managing Member. The initial Officers of the Company designated
by
the Managing Member are listed on Schedule
C
hereto.
6
(b)
President.
The
President shall be the chief executive officer of the Company, shall be
responsible for the general and active management of the business of the Company
and shall see that all orders and resolutions of the Company are carried into
effect. The President or any other Officer authorized by the President or the
Managing Member shall execute all bonds, mortgages and other contracts, except:
(i) where required or permitted by law or this Agreement to be otherwise signed
and executed, including Section
7(b)
(ii)
where signing and execution thereof shall be expressly delegated by the Managing
Member to some other Officer or agent of the Company, and (iii) as otherwise
permitted in Section
10(c).
(c)
Vice
President.
In the
absence of the President or in the event of the President's inability to act,
the Vice President, if any (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Managing Member,
or in the absence of any designation, then in the order of their election),
shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. The
Vice Presidents, if any, shall perform such other duties and have such other
powers as the Managing Member may from time to time prescribe.
(d)
Secretary
and Assistant Secretary.
The
Secretary shall be responsible for filing legal documents and maintaining
records for the Company. The Secretary shall attend all meetings of the Company
and record all the proceedings of the meetings of the Company in a book to
be
kept for that purpose and shall perform like duties for the standing committees
when required. The Secretary shall give, or shall cause to be given, notice
of
all meetings of the Member, if any, and shall perform such other duties as
may
be prescribed by the President, under whose supervision the Secretary shall
serve. The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Managing Member (or if there be
no
such determination, then in order of their election), shall, in the absence
of
the Secretary or in the event of the Secretary's inability to act, perform
the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Managing Member may from time to time
prescribe
(e)
Officers
as Agents.
The
Officers, to the extent of their powers set forth in this Agreement or otherwise
vested in them by action of the Managing Member not inconsistent with this
Agreement, are agents of the Company for the purpose of the Company's business
and the actions of the Officers taken in accordance with such powers shall
bind
the Company.
(f)
Duties
of Officers.
Except
to the extent otherwise provided herein, each Officer shall have a fiduciary
duty of loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section
11. Limited
Liability.
Subject
to the terms of this Agreement, 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 the Members shall not be obligated personally for
any
such debt, obligation or liability of the Company solely by reason of being
a
Member of the Company.
7
Section
12. Capital
Contributions.
The
Members have contributed to the Company property of an agreed value as listed
on
Schedule
B
attached
hereto in consideration of their respective Percentage Interests (hereinafter
defined) in the Company. “Percentage
Interest”
means
the ownership
interest
of each Member
in the
Company (the “Membership
Interests”),
expressed as a percentage, as set forth on Schedule
B.
Section
13. Additional
Contributions.
The
Members are not required to make any additional capital contribution to the
Company. However, the Members may make additional capital contributions to
the
Company at any time upon the written consent of the Members. To the extent
that
a Member makes an additional capital contribution to the Company, the Managing
Member shall revise Schedule
B
of this
Agreement accordingly. The provisions of this Agreement, including this
Section
13,
are
intended to benefit the Members and, to the fullest extent permitted by law,
shall not be construed as conferring any benefit upon any creditor of the
Company and the Members shall not 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.
Section
14. Allocation
of Profits and Losses.
All
items
of Company profit, loss, gain, deduction and credit shall be allocated among
the
Members in proportion to their respective Percentage Interests.
Section
15. Distributions.
(a)
Distributions of Available Cash shall
be
distributed to the Members from time to time, as determined by the Managing
Member. All
distributions shall be made
on
a pro rata
basis
in
accordance with each
Member’s
respective
Percentage Interest. The Managing Member shall use its commercially reasonable
efforts to distribute sufficient Available Cash to permit Lightstone
Value Plus Real Estate Investment Trust, Inc. (the “REIT”),
the
indirect parent of the Managing Member, to satisfy its obligation to distribute
annually to its stockholders at least 90% of its taxable income, subject to
certain exclusions.
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 the Act or any other applicable
law or any Basic Document.
(b)
Notwithstanding anything to the contrary contained herein, the Managing Member
shall be entitled to a one-time preferential distribution equal to 10 percent
per annum on the agreed value of its capital contribution which amount shall
be
funded by a capital contribution by the Non-Managing Member. In the event such
contribution is not made on or before December 31, 2007, the Percentage
Interests of and Agreed Value of Capital Contribution of the Members shall
be
approximately adjusted to conform their economic interests.
8
Section
16. Books
and Records.
(a)
The
Managing 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 Managing Member. The Members
and
their duly authorized representatives shall have the right to examine the
Company books, records and documents during normal business hours. The Company,
and the Managing Member on behalf of the Company, shall not have the right
to
keep confidential from the other Member any information that the Managing Member
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 Managing Member in accordance with
generally accepted accounting principles in the United States of America and
in
a manner that will permit the REIT to satisfy any reporting requirements that
state regulators may impose upon it. The Company's independent auditor, if
any,
shall be an independent public accounting firm selected by the Managing
Member.
(b)
All
funds of the Company shall be deposited in a bank account or accounts in the
Company's name.
Section
17. Other
Business.
The
Members and any Affiliate of the Members may engage in or possess an interest
in
other business ventures (unconnected with the Company) of every kind and
description, independently or with others notwithstanding any other duty
existing at law or in equity. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section
18. Exculpation
and Indemnification.
(a)
Neither the Members nor any Officer, employee or agent of the Company nor any
employee, representative, agent or Affiliate of the Members nor any member
of
the board of directors of the REIT (collectively, the “Covered
Persons”)
shall,
to the fullest extent permitted by law, be liable to the Company or any other
Person who is bound by this Agreement 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
18
by the
Company shall be provided out of and to the extent of Company assets only,
and
the Members shall not have personal liability on account thereof and
provided further,
that so
long as any Obligation is outstanding, any indemnity payment from funds of
the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section
18
shall be
subordinate to payments then due pursuant to the Basic Documents.
9
(c)
To
the fullest extent permitted by applicable law, expenses (including reasonable
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
18.
(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 Members 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 Members to replace
such other duties and liabilities of such Covered Person.
(f)
The
foregoing provisions of this Section
18
shall
survive any termination of this Agreement.
Section
19. Assignments;
Transfers.
(a)
Except as otherwise provided in this Agreement, (i) no Member may sell,
transfer, assign, hypothecate, pledge or otherwise dispose of or encumber
(including the grant of an option with respect to any of the foregoing),
directly or indirectly (“Transfer”),
all
or any part of its Membership Interest or withdraw from the Company, and (ii)
no
Transfer of any direct or indirect interest in a Member shall be permitted,
except (in the case of both clauses (i) and (ii)) with the Approval of the
Managing Member, which Approval may be granted or withheld by the Managing
Member in its sole and absolute discretion.
(b)
Any
Transfer not in compliance with the requirements of this Section
19
shall be
void ab
initio
as
against the Company and the other Members and shall be disregarded by all of
the
Members and the Company for all purposes of allocations and distributions
hereunder. The Company shall be entitled to treat the record owner of a
Membership Interest as the absolute owner thereof for all purposes and shall
incur no liability to any purported transferee or any other Person for
distributions of money or other property in good faith made to the record owner
of such Membership Interest, unless and until all conditions of any Transfer
shall have been fulfilled in accordance herewith to the satisfaction of the
Company, subject to the Approval of the Managing Member which Approval may
be
granted or withheld by the Managing Member in its sole and absolute
discretion.
10
(c)
Unless a transferee is substituted as a Member in accordance with this
Section
19(c),
the
transferee shall not be entitled to any of the rights of a Member hereunder
with
respect to the Membership Interest transferred. A transferee of a Membership
Interest may be substituted as a Member and shall thereupon be entitled to
the
rights of a Member with respect to such Membership Interest, only upon
satisfaction of the following conditions, each of which may be waived by the
Managing Member (except as to transfers of its own Membership Interest) in
its
sole discretion:
(i) the
transferor shall have granted the transferee the right to be substituted as
a
Member in its place;
(ii) the
Managing Member has Approved the Transfer in writing, which it may refuse to
do
for any reason or for no reason;
(iii) the
transferee shall have paid, or made arrangement satisfactory to the Managing
Member to pay, to the Company all costs and expenses incurred by the Company
in
connection with such substitution, including any costs incurred in amending
this
Agreement, the certificate of formation, if necessary, or any other document
filed with respect to the Company in any jurisdiction;
(iv) the
transferee shall have executed and delivered such instruments, in form and
substance satisfactory to the Managing Member, as the Managing Member may deem
to be necessary or desirable to effect such substitution and to confirm the
agreement of the transferee to be bound by and subject to all of the terms
and
provisions of this Agreement and any other relevant agreements relating to
the
Company to which the transferor and the Company or other Members are
parties;
(v) such
Transfer shall not result in the termination of the Company pursuant to Code
Section 708;
(vi) the
Managing Member has received an opinion of the Company’s counsel that the
proposed Transfer is permissible under all applicable federal or state
securities laws and will not cause the Company to be classified other than
as a
partnership for federal income tax purposes or cause the Company to terminate
for federal income tax purposes; and
(vii) such
assignment shall not result in a default or event of default under the Loan
Documents or any other material instruments or agreements to which the Company
is a party or to which the Property is subject and the Company and the Managing
Member shall have obtained all consents to such assignment required pursuant
to
the Loan Documents.
11
Section
20. Resignation.
Except
as
expressly provided in this Agreement, the Managing Member shall not resign
or
withdraw as managing member of the Company without the Approval of the other
Members, which Approval may be withheld by such Members in their sole
discretion.
Section
21. Admission
of Additional Members.
One
or
more additional members of the Company may be admitted to the Company with
the
written consent of the Managing Member; provided,
however,
that,
notwithstanding the foregoing, so long as any Obligation remains outstanding,
no
additional Member may be admitted to the Company unless the Lender consents
in
writing.
Section
22. Dissolution.
(a)
The
Company shall be dissolved, and its affairs shall be wound up upon the first
to
occur of the following: (i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other event which
terminates the continued membership of the last remaining member of the Company
in the Company unless the Company is continued without dissolution in a manner
permitted by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. Upon the occurrence of any event
that causes the last remaining member of the Company to cease to be a member
of
the Company or that causes the last remaining Member to cease to be a member of
the Company (other than (i) upon an assignment by the last remaining Member
of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections
19 and 21,
or (ii)
the resignation of the last remaining Member and the admission of an additional
member of the Company pursuant to Sections
20 and 21),
to the
fullest extent permitted by law, the personal representative of such member
is
hereby authorized to, and shall, within ninety (90) days after the occurrence
of
the event that terminated the continued membership of such member in the
Company, agree in writing (i) to continue the Company and (ii) to the admission
of the personal representative or its nominee or designee, as the case may
be,
as a substitute member of the Company, effective as of the occurrence of the
event that terminated the continued membership of the last remaining Member
in
the Company.
(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.
(c)
The
Company shall terminate when (i) all of the assets of the Company, after payment
of or due provision for all debts, liabilities and obligations of the Company
shall have been distributed to the Members in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been canceled in
the
manner required by the Act.
12
Section
23. 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
Person 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. The Members shall not have any
interest in any specific assets of the Company, and the Members shall not have
the status of a creditor with respect to any distribution pursuant to
Section
15
hereof.
The interests of the Members in the Company are personal property.
Section
24. Right
to Force Sale of Property.
Notwithstanding any provision contained herein to the contrary, at any time
after seven (7) years from the date hereof, the Managing Member shall have
the
right to force the Company to dispose of the Property by delivering written
notice thereof (a “Forced
Sale Notice”)
to the
Non-Managing Member. Upon receipt of a Forced Sale Notice, the Non-Managing
Member shall agree to the initiation of the sale of the Property by the Managing
Member.
Section
25. INTENTIONALLY
DELETED.
Section
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 other than the Lender (for so long as any Obligation
is outstanding) or by any creditor of the Members. 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.
Section
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.
Section
28. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
Section
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.
13
Section
30. Amendments.
Except
as
provided in Section 9(d), this Agreement may be modified, altered, supplemented
or amended pursuant to a written agreement executed and delivered by the
Managing Member. Notwithstanding anything to the contrary in this Agreement,
so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Lender consents in writing except:
(i) to cure any ambiguity or (ii) to convert or supplement any provision in
a
manner consistent with the intent of this Agreement and the other Basic
Documents.
Section
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.
Section
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.
Section
33. Tax
Matters.
It is
the intention of the Members that the Company shall be taxed as a "partnership"
for federal, state, local and foreign income tax purposes. The Members shall
take all reasonable actions, including the amendment of this Agreement and
the
execution of other documents, as may reasonably be required in order for the
Company to qualify for and receive "partnership" treatment for Federal, state,
local and foreign income tax purposes. The books and records of the Company
shall be maintained by the Managing Member in accordance with generally accepted
accounting principles, consistently applied, and Section 704(b) of the Internal
Revenue Code of 1986, as amended (the “Code”)
and
the Regulations promulgated thereunder. A
capital
account shall be established and maintained by the Managing Member on behalf
of
each Member in accordance with the Treasury Regulation issued pursuant to
Section 704(b) of the Code. The Managing Member shall be the “tax matters
partner” as defined in Section 6231(a)(6) of the Code, with respect to the
Company.
Section
34. Effectiveness.
Pursuant
to the Act, this Agreement shall be effective as of the execution of this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
14
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Limited Liability Company Agreement as of the
15th day
of
November, 2007.
MEMBERS:
|
LIGHTSTONE
SARASOTA INDUSTRIAL LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
Lightstone
Value Plus REIT LP,
|
|||
|
its
sole member
|
||||
|
|
By:
|
|||
|
a
Maryland corporation, its general partner
|
||||
|
|
By:
|
|||
|
Name:
Xxxxx Xxxxxxxxxxxx
|
||||
|
Title:
CEO
|
||||
|
LVP
SARASOTA INDUSTRIAL LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
Lightstone
Holdings LLC,
|
|||
|
its
managing member
|
||||
|
|
By:
|
|||
|
|
Name:
Xxxxx Xxxxxxxxxxxx
|
|||
|
Title:
CEO
|
||||
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”
means,
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with such
Person.
“Agreement”
means
this Limited Liability Company Agreement of the Company, together with the
schedules attached hereto, as amended, restated or supplemented or otherwise
modified from time to time.
“Assistant
Secretary”
has
the
meaning set forth in Section
10(a).
“Assistant
Treasurer”
has
the
meaning set forth in Section
10(a).
“Available
Cash”
means,
at any particular time, all cash and cash items (from whatever source received)
held by the Company at such time, to the extent such cash is not reasonably
necessary (in the judgement of the Board) to cover (a) obligations or expenses
of the Company at such time, or reserves for working capital and capital
expenditures (taking into account expected revenues) anticipated within a
reasonable period thereafter.
“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 a bankrupt or insolvent, or has entered against it an order for relief,
in any bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation 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
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. The foregoing definition of “Bankruptcy” is intended
to replace and shall supersede and replace the definition of “Bankruptcy” set
forth in Sections 18-101(1) and 18-304 of the Act.
“Bankruptcy
Action”
means
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 declare or effectuate a moratorium on
the
payment of any obligation, or take action in furtherance of any such
action.
“Basic
Documents”
means
this Agreement, any documents required in connection with obtaining legal or
beneficial ownership of the Property and any loan documents to which the Company
is a party or to which the Property is subject and all documents and
certificates contemplated thereby or delivered in connection
therewith.
“Certificate
of Formation”
means
the Certificate of Formation of the Company filed with the Secretary of State
of
the State of Delaware on November 1, 2007, as amended or amended and restated
from time to time.
“Code”
has
the
meaning set forth in Section
31.
“Company”
means
Xxxxxxxxx Sarasota LLC, a Delaware limited liability company.
“Control”
means
the possession, directly or indirectly, of 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, ten percent (10%) or more of the ownership interests.
“Cooling-Off
Period”
has
the
meaning set forth in Section
9(e).
“Covered
Persons”
has
the
meaning set forth in Section
18(a).
“Deadlock”
has
the
meaning set forth in Section
9(e).
“Deciding
Member”
has
the
meaning set forth in Section
9(e).
“Forced
Purchase Notice”
has
the
meaning set forth in Section
19(e).
“Forced
Sale Notice”
has
the
meaning set forth in Section
19(d).
“Initiating
Member”
has
the
meaning set forth in Section
9(e).
“Lease”
shall
mean to grant to a Person, through a commercial,
retail or residential lease agreement (including, without limitation, a
sublease) with an initial term of not less than five years, and any amendments
thereof, the
right
to
use
all or any portion of the Property for the purposes, and in exchange for the
consideration, set forth in such lease agreement. “Leases”,
“Leasing”
and
“Leased”
shall
have correlative meanings.
“Lender”
shall
mean any provider of debt financing to the Company or any of its subsidiaries,
which debt is secured by the Property.
“Loan
Documents”
shall
mean the documentation governing the terms of any financing provided by any
Lender.
“Major
Decision”
has
the
meaning set forth in Section
9(d).
“Members”
means,
collectively, LVP Sarasota Industrial LLC and Lightstone Sarasota Industrial
LLC, each a Delaware limited liability company, as the initial members of the
Company, 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, each in its capacity as a member of the Company.
“Membership
Interests”
has
the
meaning set forth in Section
12.
“Obligation”
shall
mean any obligation of the Company or any of its subsidiaries pursuant to any
Loan Document.
“Offer
Notice”
has
the
meaning set forth in Section
9(e).
“Offer
Price”
has
the
meaning set forth in Section
9(e).
“Officer”
means
an officer of the Company described in Section
10.
“Percentage
Interest”
has
the
meaning set forth in Section
12.
“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.
“President”
has
the
meaning set forth in Section
10(a).
“Property”
means
that certain real property located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000,
owned, operated and held subject to the Loan Documents.
“REIT”
has
the
meaning set forth in Section
15.
“Response
Notice”
has
the
meaning set forth in Section
9(e).
“Secretary”
has
the
meaning set forth in Section
10(a).
“Termination
Date”
has
the
meaning set forth in Section
9(e).
“Transfer”
has
the
meaning set forth in Section
19(a).
“Vice
President”
has
the
meaning set forth in Section
10(a).
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
Members
|
Name
|
Mailing
Address
|
Agreed
Value of
Capital
Contribution
|
Percentage
Interest
|
|
Lightstone
Sarasota Industrial
LLC
|
000
Xxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
$13,095,412.80*
|
90%***
|
|
LVP
Sarasota Industrial LLC
|
000
Xxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
$1,309,541.28**
|
10%***
|
| * |
To
include costs associated with the acquisition of the Property, including
title insurance, transfer
taxes, counsel fees and any other related
costs.
|
|
**
|
To
include 10 percent preference to be paid to the Managing Member pursuant
to Section 15.
|
|
***
|
Subject
to automatic adjustment pursuant to Section 15(b).
|
SCHEDULE
C
|
OFFICERS
|
TITLE
|
|
Xxxxx
Xxxxxxxxxxxx
|
President
|
|
Xxxxxx
Xxxxxxxx
|
Secretary
|
