EXHIBIT 10.58
================================================================================
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
G&L HAMPDEN, LLC
A DELAWARE LIMITED LIABILITY COMPANY
Dated as of October 15, 1997
================================================================================
TABLE OF CONTENTS
-----------------
ARTICLE 1
DEFINITIONS
1.1 ADJUSTED CAPITAL ACCOUNT DEFICIT 1
1.2 AFFILIATE 1
1.3 AGREEMENT 2
1.4 ARTICLES OF ORGANIZATION 2
1.5 AVAILABLE CASH FLOW 2
1.6 BUSINESS OF THE LLC 2
1.7 CAPITAL ACCOUNT 2
1.8 CAPITAL CONTRIBUTION 2
1.9 CODE 2
1.10 DEPRECIATION 2
1.11 DISSOLUTION 2
1.12 ECONOMIC INTEREST 2
1.13 FACILITIES 3
1.14 FISCAL YEAR 3
1.15 INITIAL MEMBER 3
1.16 LENDER 3
1.17 LLC 3
1.18 LLC INTEREST 3
1.19 LLC LOANS 3
1.20 LLC MINIMUM GAIN 3
1.21 MAJORITY IN INTEREST OF THE MEMBERS 3
1.22 MANAGER 3
1.23 MEMBER NONRECOURSE DEBT 3
1.24 MEMBER NONRECOURSE DEBT MINIMUM GAIN 4
1.25 MEMBER NONRECOURSE DEDUCTIONS 4
1.26 MEMBER 4
1.27 NET CAPITAL CONTRIBUTIONS 4
1.28 NET PROFITS AND NET LOSS 4
1.29 PERCENTAGE INTEREST 5
1.30 PERIOD OF DURATION 5
1.31 PERSON 5
1.32 PRINCIPAL 5
1.33 PROPERTY 5
1.34 REGULATIONS 5
1.35 RESERVES 5
1.36 SECRETARY OF STATE 6
1.37 STATUTE 6
1.38 VOTE 6
i
ARTICLE 2
INTRODUCTORY MATTERS
2.1 FORMATION OF LLC 6
2.2 NAME 6
2.3 PRINCIPAL OFFICE 6
2.4 AGENT FOR SERVICE OF PROCESS 6
2.5 PERIOD OF DURATION 6
2.6 BUSINESS AND PURPOSE OF THE LLC 7
ARTICLE 3
MEMBERS AND CAPITAL CONTRIBUTIONS
3.1 NAMES AND ADDRESSES OF INITIAL MEMBERS 9
3.2 CONTRIBUTIONS 9
3.3 ADDITIONAL CONTRIBUTIONS 9
3.4 RIGHTS WITH RESPECT TO CAPITAL 9
3.5 GENERAL RULES FOR ADJUSTMENT OF CAPITAL ACCOUNTS 10
3.6 SPECIAL RULES WITH RESPECT TO CAPITAL ACCOUNTS 10
3.7 TRANSFEREE'S CAPITAL ACCOUNT 11
ARTICLE 4
ALLOCATION OF PROFITS AND LOSSES
4.1 ALLOCATION OF NET PROFITS AND LOSSES 11
4.2 RESIDUAL ALLOCATIONS 12
4.3 QUALIFIED INCOME OFFSET 12
4.4 MINIMUM GAIN CHARGEBACK 12
4.5 MEMBER NONRECOURSE DEBT MINIMUM GAIN CHARGEBACK 12
4.6 MEMBER NONRECOURSE DEDUCTIONS 12
4.7 SPECIAL ALLOCATIONS 12
4.8 FEES TO MEMBERS OR AFFILIATES 13
4.9 SECTION 704(c) ALLOCATION 13
ARTICLE 5
DISTRIBUTIONS
5.1 AVAILABLE CASH FLOW 13
ARTICLE 6
RIGHTS, DUTIES, OBLIGATIONS AND COMPENSATION
OF MANAGERS AND OFFICERS
6.1 MANAGER 14
ii
6.2 CO-MANAGERS 15
6.3 LIMITATIONS ON RIGHTS AND POWERS 16
6.4 COMPENSATION OF MANAGER 17
6.5 COMPENSATION OF MEMBERS 17
6.6 EXPENSE REIMBURSEMENT 17
ARTICLE 7
MEMBERS' MEETINGS
7.1 PLACE OF MEETINGS 17
7.2 ANNUAL MEETINGS OF MEMBERS 17
7.3 SPECIAL MEETINGS 17
7.4 NOTICE OF MEETINGS 18
7.5 VALIDATION OF MEMBERS' MEETINGS 18
7.6 ACTIONS WITHOUT A MEETING 18
7.7 QUORUM AND EFFECT OF VOTE 18
ARTICLE 8
RESTRICTIONS ON TRANSFER OR CONVERSION
OF LLC INTERESTS, ADDITIONAL CAPITAL CONTRIBUTIONS;
ADMISSION OF NEW MEMBERS
8.1 TRANSFER OR ASSIGNMENT OF MEMBER'S INTEREST 19
8.2 VOID TRANSFERS 19
8.3 ADDITIONAL CAPITAL 19
8.4 ADMISSION OF NEW MEMBERS 20
ARTICLE 9
BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
9.1 MAINTENANCE OF BOOKS AND RECORDS 20
9.2 ANNUAL ACCOUNTING 21
9.3 INSPECTION AND AUDIT RIGHTS 21
9.4 RIGHTS OF MEMBERS AND NON-MEMBERS 21
9.5 BANK ACCOUNTS 21
9.6 TAX MATTERS HANDLED BY MANAGERS 21
9.7 FEDERAL INCOME TAX ELECTIONS MADE BY MANAGERS 22
9.8 OBLIGATIONS OF MEMBERS TO REPORT ALLOCATIONS 22
ARTICLE 10
TERMINATION AND DISSOLUTION
10.1 DISSOLUTION 22
10.2 STATEMENT OF INTENT TO DISSOLVE 23
10.3 CONDUCT OF BUSINESS 23
iii
10.4 DISTRIBUTION OF NET PROCEEDS 23
ARTICLE 11
INDEMNIFICATION OF THE MEMBERS, MANAGERS,
AND THEIR AFFILIATES
11.1 INDEMNIFICATION OF THE MEMBERS AND THEIR PRINCIPALS 23
11.2 EXPENSES 24
11.3 INDEMNIFICATION RIGHTS NON-EXCLUSIVE 24
11.4 ERRORS AND OMISSIONS INSURANCE 24
11.5 ASSETS OF THE LLC 24
ARTICLE 12
ISSUANCE OF LLC CERTIFICATES
12.1 ISSUANCE OF LLC CERTIFICATES 24
12.2 TRANSFER OF LLC CERTIFICATES 25
12.3 LOST, STOLEN OR DESTROYED CERTIFICATES 25
ARTICLE 13
AMENDMENTS
13.1 AMENDMENT, ETC. OF OPERATION AGREEMENT 26
13.2 AMENDMENT, ETC. OF ARTICLES OF ORGANIZATION 26
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 COUNTERPARTS 26
14.2 SURVIVAL OF RIGHTS 26
14.3 SEVERABILITY 26
14.4 NOTIFICATION OR NOTICES 26
14.5 CONSTRUCTION 27
14.6 SECTION HEADINGS 27
14.7 GOVERNING LAW 27
14.8 ADDITIONAL DOCUMENTS 27
14.9 PRONOUNS AND PLURALS 27
14.10 TIME OF THE ESSENCE 27
14.11 FURTHER ACTIONS 27
14.12 WAIVER OF JURY 27
14.13 THIRD PARTY BENEFICIARIES 28
14.14 TAX ELECTIONS 28
14.15 PARTITION 28
14.16 ENTIRE AGREEMENT 28
iv
14.17 WAIVER 28
14.18 ATTORNEYS' FEES 28
14.19 CONFIDENTIALITY AND PRESS RELEASES 28
v
G&L HAMPDEN, LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
This Limited Liability Company Operating Agreement (the "AGREEMENT") is made
and entered into and effective as of October 15, 1997, by and between G&L
HAMPDEN, INC., a Delaware corporation, and G&L REALTY PARTNERSHIP, L.P., a
Delaware limited partnership, with reference to the recitals set forth below.
R E C I T A L S
G&L Hampden, Inc. ("HAMPDEN") and G&L Realty Partnership, L.P. ("GLR") have
formed a limited liability company (hereinafter called the "LLC") pursuant to
the provisions of the Delaware Limited Liability Company Act, as amended from
time to time (the "Statute").
In consideration of the covenants and the promises made herein, the parties
hereto hereby agree as follows.
ARTICLE 1
---------
DEFINITIONS
-----------
1.1 ADJUSTED CAPITAL ACCOUNT DEFICIT. "Adjusted Capital Account
Deficit" means, with respect to any Member, the deficit balance, if any, in such
Member's Capital Account as of the end of the relevant Fiscal Year, after giving
effect to the following adjustments:
1.1.1 increase such Capital Account by any amounts which such
Member is obligated to contribute to the LLC (pursuant to the terms of this
Agreement or otherwise) or is deemed to be obligated to contribute to the
LLC pursuant to Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
1.1.2 reduce such Capital Account by the amount of the items
described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
1.2 AFFILIATE. "Affiliate" means, when used with reference to a
specified Person, (i) the Principal of the Person, (ii) any Person directly or
indirectly controlling, controlled by or under common control with such Person,
(iii) any Person owning or controlling 10% or more of the outstanding voting
interests of such Person, and (iv) any relative or spouse of such Person.
-1-
1.3 AGREEMENT. "Agreement" means this Limited Liability Company
Operating Agreement, as originally executed and as amended from time to time, as
the context requires. Words such as "herein", "hereinafter", "hereto", "hereby"
and "hereunder", when used with reference to this Agreement, refer to this
Agreement as a whole, unless the context otherwise requires.
1.4 ARTICLES OF ORGANIZATION. "Articles of Organization" means the
articles of organization filed with the Secretary of State for State of Delaware
for the purpose of forming the LLC.
1.5 AVAILABLE CASH FLOW. "Available Cash Flow" means, with respect to
any Fiscal Year or other period, the sum of all cash receipts of the LLC from
any and all sources, less all cash disbursements (including loan repayments,
capital improvements and replacements) and a reasonable allowance for Reserves,
contingencies and anticipated obligations as determined by the Manager.
1.6 BUSINESS OF THE LLC. "Business of the LLC" shall have the meaning
set forth in Section 26 hereof.
1.7 CAPITAL ACCOUNT. "Capital Account" of a Member shall have the
meaning set forth in Sections 3.4 and 35 hereof.
1.8 CAPITAL CONTRIBUTION. "Capital Contribution" shall have the meaning
set forth in Article 3 hereof.
1.9 CODE. "Code" means the Internal Revenue Code of 1986, as amended
(or any corresponding provision or provisions of any succeeding law).
1.10 DEPRECIATION. "Depreciation" means, for each Fiscal Year or other
period, an amount equal to the depreciation, amortization or other cost recovery
reduction allowable with respect to an asset for such Fiscal Year or other
period.
1.11 DISSOLUTION. "Dissolution" means (i) when used with reference to
the LLC, the earlier of (a) the date upon which the LLC is terminated under the
Statute, or any similar provision enacted in lieu thereof, or (b) the date upon
which the LLC ceases to be a going concern, and (ii) when used with reference to
any Member, the earlier of (a) the date upon which there is a Dissolution of the
LLC or (b) the date upon which such Member's entire interest in the LLC is
terminated by means of a distribution or series of distributions by the LLC to
such Member.
1.12 ECONOMIC INTEREST. "Economic Interest" means a Person's right to
share in the Net Profits, Net Loss or similar items of, and to receive
distributions from, the LLC, but does not include any other rights of a Member
including, without limitation, the right to vote or to participate in the
management of the LLC, or, except as provided in Section 94, any right to
information concerning the business and affairs of the LLC.
-2-
1.13 FACILITIES. "Facilities" means those three senior care facilities
located in Hampden County, Massachusetts, commonly known as: (a) Xxxx Xxxx
Nursing Home, 00 Xxxx Xxxxxx, Xxxxxxx, improved with a 100 bed nursing home, (b)
Riverdale Gardens Rehabilitation and Nursing Center, 00 Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxxxx, improved with a 168 bed nursing home, and (c) Chestnut Hill
Rehabilitation and Nursing Center, 00 Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxxx,
improved with a 128 bed nursing home.
1.14 FISCAL YEAR. "Fiscal Year" means the period of January 1 to and
including December 31.
1.15 INITIAL MEMBER. "Initial Member" shall mean any of the Members
listed in Section 3.1.
1.16 LENDER. "Lender" means, collectively, Nomura Asset Capital
Corporation or its successors or assigns.
1.17 LLC. "LLC" means G&L HAMPDEN, LLC.
1.18 LLC INTEREST. "LLC Interest" or "Interest" means an ownership
interest in the LLC, which includes the Economic Interest, the right to vote or
participate in the management of the LLC, and the right to information
concerning the business and affairs of the LLC, as provided in this Agreement
and under the Statute.
1.19 LLC LOANS. "LLC Loans" shall refer to any loans or advances made by
any Member to the LLC at the Member's option, without obligation to so do, to
the extent the LLC does not have sufficient resources (assets, borrowings or
otherwise) to meet its LLC obligations. Such LLC Loans shall bear interest at
the rate agreed to between the Member and the Manager.
1.20 LLC MINIMUM GAIN. "LLC Minimum Gain" means the amount determined by
computing with respect to each nonrecourse liability of the LLC, the amount of
gain (of whatever character), if any, that would be realized by the LLC if it
disposed (in a taxable transaction) of the Property subject to such liability in
full satisfaction thereof, and by then aggregating the amounts so computed as
set forth in Regulations Section 1.704-2(d).
1.21 MAJORITY IN INTEREST OF THE MEMBERS. "Majority in Interest of the
Members," unless otherwise provided in the Agreement, means more than fifty
percent (50%) of the interests of the Members in the current profits of the LLC.
1.22 MANAGER. "Manager" means the Person elected to manage the LLC
pursuant to Section 61 of this Agreement. At any time that the Members shall
have elected to have more than one Manager, all such Persons so elected shall be
referred to as the "Managers."
1.23 MEMBER NONRECOURSE DEBT. "Member Nonrecourse Debt" has the meaning
set forth in Regulations Section 1.704-2(b)(4).
-3-
1.24 MEMBER NONRECOURSE DEBT MINIMUM GAIN. "Member Nonrecourse Debt
Minimum Gain" means an amount, with respect to each Member Nonrecourse Debt,
equal to the LLC Minimum Gain that would result if such Member Nonrecourse Debt
were treated as a nonrecourse liability of the LLC, determined in accordance
with Regulations Sections 1.704-2(i)(2) and (3).
1.25 MEMBER NONRECOURSE DEDUCTIONS. "Member Nonrecourse Deductions" has
the meaning set forth in Regulations Section 1.704-2(i)(2). The amount of
Member Nonrecourse Deductions with respect to a Member Nonrecourse Debt for a
Fiscal Year of the LLC equals the excess (if any) of the net increase (if any)
in the amount of Member Nonrecourse Debt Minimum Gain attributable to such
Member Nonrecourse Debt during that Fiscal Year over the aggregate amount of any
distributions during that Fiscal Year to the Member that bears (or is deemed to
bear) the economic loss for such Member Nonrecourse Debt to the extent such
distributions are from the proceeds of such Member Nonrecourse Debt and are
allocable to an increase in Member Nonrecourse Debt Minimum Gain attributable to
such Member Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(2).
1.26 MEMBER. "Member" means a Person who:
1.26.1 Has been admitted to the LLC as a member in accordance with
the Articles of Organization or this Agreement, or an assignee of an
Interest, other than an Economic Interest, who has become a Member pursuant
to Section 81.
1.26.2 Has not resigned, withdrawn or been expelled as a Member or,
if other than an individual, been dissolved.
1.27 NET CAPITAL CONTRIBUTIONS. "Net Capital Contributions" means the
aggregate of a Member's Capital Contributions over the aggregate distributions
theretofore made to such Member pursuant to Section 51.
1.28 NET PROFITS AND NET LOSS. "Net Profits" and "Net Loss" mean, for
each Fiscal Year or other period, an amount equal to the LLC's taxable income or
loss for such year or period, determined in accordance with Code Section 703(a)
(for this purpose, all items of income, gain, loss or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be included in
taxable income or loss), with the following adjustments:
1.28.1 Any income of the LLC that is exempt from Federal income tax
and not otherwise taken into account in computing Net Profits or Net Loss
shall be added to such taxable income or loss;
1.28.2 Any expenditures of the LLC described in Code Section
705(b)(2)(B) or treated as Code Section 705(b)(2)(B) expenditures pursuant
to Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into
account in computing Net Profits or Net Loss shall be subtracted from such
taxable income or loss;
-4-
1.28.3 Gain or loss resulting from any disposition of Property with
respect to which gain or loss is recognized for Federal income tax purposes
shall be computed by reference to the fair market value of the Property
disposed of, notwithstanding that the adjusted tax basis of such Property
differs from its fair market value;
1.28.4 In lieu of depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal Year
or other period, computed in accordance with the subsection hereof entitled
"Depreciation"; and
1.28.5 Notwithstanding any other provision of this subsection, any
items of income, gain, loss or deduction which are specifically allocated
shall not be taken into account in computing Net Profits or Net Loss.
1.29 PERCENTAGE INTEREST. The Initial Members' "Percentage Interests"
shall be in the following percentages:
G&L REALTY PARTNERSHIP, L.P. 99%
G&L HAMPDEN, INC. 1%
-----------
100%
1.30 PERIOD OF DURATION. "Period of Duration" shall have the meaning set
forth in Section 25 hereof.
1.31 PERSON. "Person" means an individual, partnership, limited
partnership, corporation, trust, estate, association, limited liability company,
or other entity, whether domestic or foreign.
1.32 PRINCIPAL. "Principal" means the natural Person which is in
ultimate control of a Member.
1.33 PROPERTY. "Property" means all assets of the LLC, both tangible and
intangible, or any portion thereof.
1.34 REGULATIONS. "Regulations" means the federal income tax regulations
promulgated by the Treasury Department under the Code, as such regulations may
be amended from time to time. All references herein to a specific section of
the Regulations shall be deemed also to refer to any corresponding provisions of
succeeding Regulations.
1.35 RESERVES. "Reserves" means funds set aside from Capital
Contributions or gross cash revenues as reserves. Such Reserves shall be
maintained in amounts reasonably deemed sufficient by the Manager for working
capital and the payment of taxes, insurance, debt service,
-5-
repairs, replacements renewals, or other costs or expenses incident to the
Business of the LLC, or in the alternative, the Dissolution of the LLC.
1.36 SECRETARY OF STATE. "Secretary of State" shall mean the Secretary of
State of the State of Delaware.
1.37 STATUTE. "Statute" shall mean the Delaware Limited Liability
Company Act, as amended from time to time (or any corresponding provision or
provisions of any succeeding law).
1.38 VOTE. Except where superseded by another Section of this Agreement,
or required by the terms of the Statute, Code or applicable Regulations
thereunder, all decisions made by the LLC shall be approved by fifty-one percent
(51%) of the votes ("Vote") of the Members, wherein each Member casts a number
of votes equal to the Member's Percentage Interest in the LLC.
ARTICLE 2
---------
INTRODUCTORY MATTERS
--------------------
2.1 FORMATION OF LLC. The parties have formed the LLC pursuant to the
provisions of the Statute by filing the Articles of Organization with the
Secretary of State.
2.2 NAME. The name of the LLC is "G&L HAMPDEN, LLC". The Members shall
operate the Business of the LLC under such name or use such other or additional
names as the Members may deem necessary or desirable provided that: (i) no such
name shall contain the words "bank," "insurance," "trust," "trustee,"
"incorporated," "inc.," "corporation," "corp.," or any similar name or variation
thereof; (ii) the Members shall have reasonably determined, before use of any
such name, that the LLC is entitled to use such name and will not by reason of
such use infringe upon any rights of any other Person, or violate any applicable
laws or governmental regulations; and (iii) the Members shall register such name
under assumed or fictitious name statutes or similar laws of the states in which
the LLC operates.
2.3 PRINCIPAL OFFICE. The LLC shall maintain its principal place of
business at 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, or any
other location mutually agreed upon by the Members.
2.4 AGENT FOR SERVICE OF PROCESS. The name and address of the LLC's
agent for service of process is Xxxxx X. Xxxxxxx, Esq., Xxxxxxxxx & Xxxxxx, 0000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
2.5 PERIOD OF DURATION. The period of duration of the LLC ("Period of
Duration") shall be thirty (30) years, commencing on the date of the filing of
the Articles of Organization with the Delaware Secretary of State, unless the
LLC is terminated or dissolved sooner, in accordance with the provisions of this
Agreement.
-6-
2.6 BUSINESS AND PURPOSE OF THE LLC. The purpose of the LLC is to engage
in any lawful activities for which a LLC may be organized under the Statute,
including, but not limited to, the acquisition and leasing of the Facilities;
provided that the LLC shall not conduct any banking, insurance or trust company
business. Notwithstanding the foregoing, for so long as any indebtedness
remains owed by the LLC to Nomura Asset Capital Corporation or its successors or
assigns (collectively, "Lender") the LLC:
(i) will be organized solely for the purpose of owning or operating the
Facilities,
(ii) will not engage in any business unrelated to the ownership or
operation of the Facilities,
(iii) will not have any assets other than those related to the Facilities,
(iv) will not engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation or merger, and, except as otherwise
expressly permitted by the loan documents between Lender and the LLC
(the "Loan Documents"), has not and will not engage in, seek or
consent to any asset sale, transfer of membership interests, or
amendment of its certificate of formation or operating agreement,
(v) will have at least one member that is and will be a Single-Purpose
Entity which is and will be a corporation, which corporation will be
G&L HAMPDEN, INC., a Delaware corporation ("Hampden"), and Hampden
is and will be the Manager of the LLC,
(vi) without the unanimous consent of all the Members including the vote
of the independent director of Hampden, has not and will not with
respect to itself or to any other entity in which it has a direct or
indirect legal or beneficial ownership interest (a) file a
bankruptcy, insolvency or reorganization petition or otherwise
institute insolvency proceedings or otherwise seek any relief under
any laws relating to the relief from debts or the protection of
debtors generally; (b) seek or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator, custodian or
any similar official for such entity or all or any portion of such
entity's properties; (c) make any assignment for the benefit of such
entity's creditors; or (d) take any action that might cause such
entity to become insolvent,
(vii) will maintain its accounts, books and records separate from any
other person or entity
(viii) will maintain its books, records, resolutions and agreements as
official records;
(ix) will not commingle its funds or assets with those of any other
entity,
(x) will conduct its business in its name,
-7-
(xi) will hold its assets in its own name,
(xii) will maintain its financial statements, accounting records and other
entity documents separate from any other person or entity,
(xiii) will pay its own liabilities out of its own funds and assets
(xiv) will observe all limited liability company formalities
(xv) will maintain arms-length relationship with its Affiliates,
(xvi) will have no indebtedness other than the Indebtedness as defined in
the Loan Documents and unsecured trade payables in the ordinary
course of business relating to the ownership and operation of the
Facilities which (1) do not exceed, at any time, a maximum amount of
one percent (1%) of the Loan Amount as defined in the Loan Documents
and (2) are paid within thirty (30) days of the date incurred,
(xvii) will not assume or guarantee or become obligated for the debts of
any other entity or hold out its credit as being available to
satisfy the obligations of any other entity except for the
Indebtedness as defined in the Loan Documents,
(xviii)has not acquired and will not acquire obligations or securities of
its Members
(xix) has allocated and will allocate fairly and reasonably shared
expenses, including, without limitation, shared office space and
uses separate stationary, invoices and checks,
(xx) except pursuant to the Loan Documents, will not pledge its assets
for the benefit of any person or entity,
(xxi) will hold itself out and identify itself as a separate and distinct
entity under its own name and not as a division or part of any other
person or entity,
(xxii) will not make loans to any person or entity,
(xxiii)will not identify its members or any Affiliates of any of them as
a division or part of it,
(xxiv) will not enter into or be a party to, any transaction with its
members or its Affiliates except in the ordinary course of business
and on terms which are intrinsically fair and are no less favorable
to it than would be obtained in a comparable arms-length transaction
with an unrelated third party,
(xxv) will pay the salaries of its own employees from its own funds,
-8-
(xxvi) will maintain adequate capital in light to its contemplated business
operations and
(xxvii)shall continue (and not dissolve) for so long as a solvent Manager
exists and such entity's organizational documents shall contain such a
provision.
2.7 In the event of a termination event, the vote of a majority of the
remaining members is sufficient to continue the life of the Company, and in the
event such vote of the remaining members is not obtained, the Company will not
liquidate collateral without the consent of the holders of the related
securities.
ARTICLE 3
---------
MEMBERS AND CAPITAL CONTRIBUTIONS
---------------------------------
3.1 NAMES AND ADDRESSES OF INITIAL MEMBERS. The names and addresses of
the Initial Members are as follows:
3.1.1 G&L HAMPDEN, INC., a Delaware corporation, whose address is
000 Xxxxx Xxxxxxx Drive, Second Floor, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
3.1.2 G&L REALTY PARTNERSHIP, L.P., a Delaware limited partnership,
whose address is 000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
3.2 CONTRIBUTIONS. The Initial Members shall contribute the following
to the LLC:
3.2.1 Hampden shall contribute the sum of One Hundred Dollars
($10.00) in cash.
3.2.2 GLR shall contribute the sum of Nine Hundred Ninety Dollars
($990.00) in cash.
3.3 ADDITIONAL CONTRIBUTIONS. Except as shall be expressly set forth
herein, no Member shall be required to (a) make any additional Capital
Contributions, (b) make any loan, or (c) cause to be loaned any money or other
assets to the LLC.
3.4 RIGHTS WITH RESPECT TO CAPITAL.
3.4.1 LLC CAPITAL. No Member shall have the right to withdraw, or
receive any return of, its Capital Contribution, and no Capital
Contribution may be returned in the form of property other than cash except
as specifically provided herein.
3.4.2 NO INTEREST ON CAPITAL CONTRIBUTIONS. Except as expressly
provided in this Agreement, no Capital Contribution of any Member shall
bear any
-9-
interest or otherwise entitle the contributing Member to any compensation
for use of the contributed capital.
3.4.3 ESTABLISHMENT OF CAPITAL ACCOUNTS. A separate capital
account ("Capital Account") shall be maintained for each Member. For book
purposes, each Member's Capital Account will be separated into a
contribution account and an income (loss) account and will be maintained
according to generally accepted accounting principles. Sections 36 and 37
below describe the appropriate accounting treatment for tax purposes of the
Capital Accounts.
3.5 GENERAL RULES FOR ADJUSTMENT OF CAPITAL ACCOUNTS. The Capital
Account of each Member shall be:
3.5.1 INCREASES. Increased by:
(i) Such Member's cash contributions;
(ii) The agreed fair market value of property contributed by
such Member (net of liabilities secured by such contributed property
that the LLC is considered to assume or take subject to under Code
Section 752);
(iii) All items of LLC income and gain (including income
and gain exempt from tax) allocated to such Member pursuant to
Article 4 or other provisions of this Agreement; and
3.5.2 DECREASES. Decreased by:
(i) The amount of cash distributed to such Member;
(ii) The agreed fair market value of all actual and deemed
distributions of property made to such Member pursuant to this
Agreement (net of liabilities secured by such distributed property
that the Member is considered to assume or take subject to under
Code Section 752);
(iii) All items of LLC deduction and loss allocated to
such Member pursuant to Article 4 or other provisions of this
Agreement.
3.6 SPECIAL RULES WITH RESPECT TO CAPITAL ACCOUNTS.
3.6.1 TIME OF ADJUSTMENT FOR CAPITAL CONTRIBUTIONS. For purposes
of computing the balance in a Member's Capital Account, no credit shall be
given for any Capital Contribution which such Member is to make until such
contribution is actually made. "Capital Contribution" refers to the total
amount of cash and the agreed fair market value (net of liabilities)
contributed to the LLC by that Member and any subsequent
-10-
contributions of cash and the agreed fair market value (net of liabilities)
of any other property subsequently contributed to the LLC by that Member.
3.6.2 INTENT TO COMPLY WITH TREASURY REGULATIONS. The foregoing
provisions of Sections 36 and 37 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a
manner consistent with such Regulations Section. To the extent such
provisions are inconsistent with such Regulations Section or are incomplete
with respect thereto, Capital Accounts shall be maintained in accordance
with such Regulations Section.
3.7 TRANSFEREE'S CAPITAL ACCOUNT. In the event a Member, of the holder
of an Economic Interest, transfers an Interest in accordance with the terms of
this Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred Interest.
ARTICLE 4
---------
ALLOCATION OF PROFITS AND LOSSES
--------------------------------
4.1 ALLOCATION OF NET PROFITS AND LOSSES. Except as otherwise provided
in this Article 4, Net Profits and Net Loss of the LLC in each Fiscal Year shall
be allocated among the Members as follows:
4.1.1 NET PROFITS. Net Profits shall be allocated among the
Members as follows:
(i) first, to each of the Members until the cumulative Net
Profits allocated to such Member pursuant to this Section 411 is
equal to the cumulative Net Loss allocated to the Member pursuant to
Section 412 for any prior period; and
(ii) thereafter, to the Members in accordance with their
Percentage Interests.
4.1.2 ALLOCATION OF NET LOSS. Except as otherwise provided in this
Article 4, Net Loss shall be allocated among the Members as follows:
(i) first, to offset any Net Profits allocated pursuant to
Section 411 hereof, and then to offset any Net Profits allocated
pursuant to Section 411 hereof (in each case pro rata in proportion
to their shares of Net Profits being offset);
-11-
(ii) second, in proportion to the positive balances, if any,
in the Members' respective Capital Accounts, until such balances are
reduced to zero; and
(iii) third, to the Members, pro rata, in accordance with
their Percentage Interests; provided, however, that if, and to the
extent that the allocation of Net Loss in this manner would cause a
Member to have an Adjusted Capital Account Deficit at the end of the
Fiscal Year, then such Net Loss shall instead be allocated to the
Member who has the largest Percentage Interest.
4.2 RESIDUAL ALLOCATIONS. Except as otherwise provided in this
Agreement, all items of LLC income, gain, loss, deduction, and any other
allocations not otherwise provided for shall be divided among the Members in the
same proportions as they share Net Profits or Net Losses, as the case may be,
for the Fiscal Year.
4.3 QUALIFIED INCOME OFFSET. If any Member unexpectedly receives any
adjustments, allocation or distributions described in clauses (4), (5) or (6) of
Regulations Section 1.704-1(b)(2)(ii)(d), items of LLC income shall be specially
allocated to such Member in an amount and manner sufficient to eliminate the
Adjusted Capital Account Deficit created by such adjustments, allocations or
distributions as quickly as possible. This Section 43 is intended to constitute
a "qualified income offset" within the meaning of Regulations Section 1.704-
1(b)(2)(ii)(d)(3).
4.4 MINIMUM GAIN CHARGEBACK. If there is a net decrease in LLC Minimum
Gain during a Fiscal Year, each Member will be allocated, before any other
allocation under this Article 4, items of income and gain for such Fiscal Year
(and if necessary, subsequent years) in proportion to and to the extent of an
amount equal to such Member's share of the net decrease in LLC Minimum Gain
determined in accordance with Regulations Section 1.704-2(g)(2). This Section
44 is intended to comply with, and shall be interpreted consistently with, the
"minimum gain chargeback" provisions of Regulations Section 1.704-2(f).
4.5 MEMBER NONRECOURSE DEBT MINIMUM GAIN CHARGEBACK. Notwithstanding
any other provision of this Article 4, but except Section 44, if there is a net
decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member
Nonrecourse Debt during any Fiscal Year of the LLC, each Member who has a share
of the Member Nonrecourse Debt Minimum Gain attributable to such Member
Nonrecourse Debt, determined in accordance with Treasury Regulations Section
1.704-2(i)(5), shall be specially allocated items of LLC income and gain for
such year (and, if necessary, subsequent years) in an amount equal such Member's
share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable
to such Member Nonrecourse Debt, determined in accordance with Regulations
Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be determined in
accordance with Regulations Section 1.704-2(i)(4). This Section 45 is intended
to comply with a minimum gain chargeback requirement of that Section of the
Regulations and shall be interpreted consistently therewith.
-12-
4.6 MEMBER NONRECOURSE DEDUCTIONS. Any Member Nonrecourse Deductions for
any Fiscal Year or other period shall be specially allocated to the Member who
bears (or is deemed to bear) the economic risk of loss with respect to the
Member Nonrecourse Debt to which such Member Nonrecourse Deductions are
attributable in accordance with Regulations Section 1.704-2(i)(2).
4.7 SPECIAL ALLOCATIONS. Any special allocations of items of Net
Profits pursuant to Sections 44, 45 and 46 shall be taken into account in
computing subsequent allocations of Net Profits pursuant to Section 41, so that
the net amount of any items so allocated and the gain, loss and any other item
allocated to each Member pursuant to Section 41 shall, to the extent possible,
be equal to the net amount that would have been allocated to each such Member
pursuant to the provisions of this Article if such special allocations had not
occurred.
4.8 FEES TO MEMBERS OR AFFILIATES. Notwithstanding the provisions of
Section 41, in the event that any fees, interest, or other amounts paid to any
Member or any Affiliate thereof pursuant to this Agreement or any other
agreement between the LLC and any Member or Affiliate thereof providing for the
payment of such amount, and deducted by the LLC in reliance on Section 707(a)
and/or 707(c) of the Code, are disallowed as deductions to the LLC on its
federal income tax return and are treated as LLC distributions, then
4.8.1 the Net Profits or Net Loss, as the case may be, for the
Fiscal Year in which such fees, interest, or other amounts were paid shall
be increased or decreased, as the case may be, by the amount of such fees,
interest, or other amounts that are treated as LLC distributions; and
4.8.2 there shall be allocated to the Member to which (or to whose
Affiliate) such fees, interest, or other amounts were paid, prior to the
allocations pursuant to Section 41, an amount of gross income for the
Fiscal Year equal to the amount of such fees, interest, or other amounts
that are treated as LLC distributions.
4.9 SECTION 704(C) ALLOCATION. Any item of income, gain, loss, and
deduction with respect to any property (other than cash) that has been
contributed by a Member to the capital of the LLC and which is required or
permitted to be allocated to such Member for income tax purposes under Section
704(c) of the Code so as to take into account the variation between the tax
basis of such property and its fair market value at the time of its contribution
shall be allocated to such Member solely for income tax purposes in the manner
so required or permitted.
-13-
ARTICLE 5
---------
DISTRIBUTIONS
-------------
5.1 AVAILABLE CASH FLOW. Available Cash Flow of the LLC shall be
distributed to the Members in accordance with the following priority and
agreements:
5.1.1 FIRST. Pro rata among the Members, in the ratio of the
principal loan balances outstanding, until all of the accrued but unpaid
interest on all LLC Loans, if any, has been paid, and then the principal
amounts thereof.
5.1.2 SECOND. Pro rata among Members who have positive Net Capital
Contributions, in the ratio of their positive Net Capital Contributions,
until all Net Capital Contributions are reduced to zero.
5.1.3 THIRD. To the Members in accordance with their applicable
Percentage Interests as of the time of such distribution.
ARTICLE 6
---------
RIGHTS, DUTIES, OBLIGATIONS AND COMPENSATION
--------------------------------------------
OF MANAGERS AND OFFICERS
6.1 MANAGER. The LLC shall be managed initially by G&L HAMPDEN, INC.
(the "Manager"). The Manager shall have such rights, duties and powers as are
specified in this Agreement, or conferred upon the Manager by Vote of the
Members.
6.1.1 DUTIES OF THE MANAGER. The Manager is the general manager
and chief executive officer of the LLC and has, subject to the control of
the Members (except as otherwise provided in Section 2.6(v)), general
supervision, direction, and control of the business of the LLC. The
Manager shall preside at all meetings of the Members. The Manager shall
have the general powers and duties of management typically vested in the
office of president of a corporation, and such other powers and duties as
may be prescribed by the Members. Until the Members shall have elected
more than one Manager for the LLC, the term "Manager" as used in this
Agreement shall mean the Person who alone has the powers and duties
specified in this Section 611.
6.1.2 ELECTION. Except as otherwise provided in Section 2.6(v),
each Manager of the LLC shall be chosen annually by the Vote of the
Members. In voting for Managers, each Member shall have a number of votes
equal to its Percentage Interest in the LLC. The candidate for each
Manager position who obtains the majority of Member votes
-14-
cast shall succeed to that Manager position. Each Manager shall hold office
until the Manager resigns or shall be removed or otherwise disqualified to
serve, or the Manager's successor is elected and qualified.
6.1.3 SUBORDINATE OFFICERS. The Members may appoint a secretary, a
chief financial officer, and such other officers of the LLC as the Business
of the LLC may require, each of whom shall hold office for such period,
have such authority and perform such duties as are provided in this
Agreement, or as the Members determine.
6.1.4 REMOVAL AND RESIGNATION. Except as otherwise provided in
Section 2.6(v), any Manager or other officer of the LLC may be removed,
with or without cause, by the Vote of the Members. Any Manager or other
officer of the LLC may resign at any time without prejudice to any rights
of the LLC under any contract to which the Manager or other officer of the
LLC is a party, by giving written notice to the Members, or to the Manager,
as applicable. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
6.1.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled
by a Vote of the Members through the appointment of a successor officer who
shall hold the office for the unexpired term.
6.2 CO-MANAGERS. Except as otherwise provided in Section 2.6(v), if at
any time during the Period of Duration, the Members by Vote shall determine to
have more than one Manager, the Managers shall be elected pursuant to the
provisions of Section 612 and shall be subject to removal pursuant to the
provisions of Section 614. Each Manager shall also have the right to resign
provided in Section 614, and any vacancy in a Manager position shall be filled
pursuant to the provisions of Section 615. The following provisions of this
Section 62 shall govern the manner in which the Managers shall manage the
Business of the LLC if the Members have elected more than one Manager.
6.2.1 The Managers shall share in the duties described in Section
611.
6.2.2 Meetings of the Managers shall be held at the principal
office of the LLC, unless some other place is designated in the notice of
the meeting. Any Manager may participate in a meeting through use of a
conference telephone or similar communication equipment so long as all
Managers participating in such a meeting can hear one another. Accurate
minutes of any meeting of the Managers shall be maintained by the officer
designated by the Managers for that purpose.
6.2.3 Regular meetings of the Managers shall be held immediately
following the adjournment of the annual meeting of the Members at which the
Managers are elected. No notice need be given of such regular meetings.
-15-
6.2.4 Special meetings of the Managers for any purpose may be
called at any time by any Manager. At least forty-eight (48) hours notice
of the time and place of a special meeting of the Managers shall be
delivered personally to the Managers or personally communicated to them by
an officer of the LLC by telephone, telegraph or facsimile. If the notice
is sent to a Manager by letter, it shall be addressed to him at his last
known business address as it is shown on the records of the LLC. In case
such notice is mailed, it shall be deposited in the United States mail,
first-class postage, prepaid, in the place in which the principal office of
the LLC is located at least four (4) days prior to the time of the holding
of the meeting. Such mailing, telegraphing, telephoning or delivery as
above provided shall be considered due, legal and personal notice to such
Manager.
6.2.5 With respect to a special meeting which has not been duly
called or noticed pursuant to the provisions of Section 624, all
transactions carried out at the meeting are as valid as if had at a meeting
regularly called and noticed if: (i) all Managers are present at the
meeting, and sign a written consent to the holding of such meeting, or (ii)
if a majority of the Managers are present and if those not present sign a
waiver of notice of such meeting or a consent to holding the meeting or an
approval of the minutes thereof, whether prior to or after the holding of
such meeting, which waiver, consent or approval shall be filed with the
other records of the LLC, or (iii) if a Manager attends a meeting without
notice and does not protest prior to the meeting or at its commencement
that notice was not given to him or her.
6.2.6 Any action required or permitted to be taken by the Managers
may be taken without a meeting and will have the same force and effect as
if taken by a vote of Managers at a meeting properly called and noticed, if
authorized by a writing signed individually or collectively by all, but not
less than all, the Managers. Such consent shall be filed with the records
of the LLC.
6.2.7 A majority of the total number of incumbent Managers shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Managers, and except as otherwise provided in this Agreement
or by the Statute, the action of a majority of the Managers present at any
meeting at which there is a quorum, when duly assembled, is valid. A
meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of Managers, if any action taken
is approved by a majority of the required quorum for such meeting.
6.3 LIMITATIONS ON RIGHTS AND POWERS. Except by the written approval by
a Majority in Interest of the Members, neither the Manager nor any other officer
of the LLC shall have authority to:
6.3.1 Enter into or commit to any agreement, contract, commitment
or obligation on behalf of the LLC obligating any Member or Principal to
find additional capital, to make or guarantee a loan or to increase its
personal liability either to the LLC or to third parties;
-16-
6.3.2 Materially alter the Business of the LLC;
6.3.3 Permit or cause the LLC to place title to any Property in the
name of a nominee;
6.3.4 Permit the LLC's funds to be commingled with the funds of any
other Person;
6.3.5 Do any act in contravention of this Agreement;
6.3.6 Do any act which would make it impossible to carry on the
Business of the LLC;
6.3.7 Confess a judgment against the LLC;
6.3.8 Possess Property, or assign rights in specific Property, for
other than a LLC purpose;
6.3.9 Admit any person as a Member, except as otherwise provided in
this Agreement; and
6.3.10 Dissolve the LLC.
6.4 COMPENSATION OF MANAGER. The LLC shall pay to the Manager such
salary and other benefits as shall be approved from time to time by Vote of the
Members. The LLC shall reimburse the Manager for any expense paid by the
Manager that properly is to be borne by the LLC.
6.5 COMPENSATION OF MEMBERS. The Manager may cause the LLC to pay
compensation to any Member or any Principal of any Member for their services to
the LLC provided that said payment is for services rendered and is reasonable in
amount.
6.6 EXPENSE REIMBURSEMENT. The LLC shall reimburse the Members for any
expense paid by them that properly is to be borne by the LLC, as approved from
time to time by the Manager.
-17-
ARTICLE 7
---------
MEMBERS' MEETINGS
-----------------
7.1 PLACE OF MEETINGS. Meetings of the Members shall be held at the
principal office of the LLC, unless some other appropriate and convenient
location, either within or without the state where the Articles of Organization
were filed, shall be designated for that purpose from time to time by the
Manager.
7.2 ANNUAL MEETINGS OF MEMBERS. An annual meeting of the Members shall be
held, each year, on October 1st, at 10:00 a.m. If this day shall be a legal
holiday, then the meeting shall be held on the next succeeding business day, at
the same time. Except as otherwise provided in Section 2.6, at the annual
meeting, the Members shall elect the Manager (or Managers) and transact such
other business as may be properly brought before the meeting.
7.3 SPECIAL MEETINGS. Special meetings of the Members may be called at
any time by the Manager or by one or more Members holding in the aggregate more
than ten percent (10%) of the Percentage Interests. Upon receipt of a written
request, which request may be mailed or delivered personally to the Manager, by
any Person entitled to call a special meeting of Members, the Manager shall
cause notice to be given to the Members that a meeting will be held at a time
requested by the Person or Persons calling the meeting, which time for the
meeting shall be not less than ten (10) nor more than sixty (60) days after the
receipt of such request. If such notice is not given within twenty (20) days
after receipt of such request, the Persons calling the meeting may give notice
thereof in the manner provided by this Agreement.
7.4 NOTICE OF MEETINGS. Except as provided for in Section 73 for
special meetings, notice of meetings shall be given to the Members in writing
not less than ten (10) nor more than sixty (60) days before the date of the
meeting by the Manager. Notices for regular and special meetings shall be given
personally, by mail, or by facsimile, and shall be sent to each Member's last
known business address appearing on the books of the LLC. Such notice shall be
deemed given at the time it is delivered personally, or deposited in the mail,
or sent by facsimile. Notice of any meeting of Members shall specify the place,
the day and the hour of the meeting, and (i) in case of a special meeting, the
general nature of the business to be transacted, or (ii) in the case of an
annual meeting, those matters which the Manager, at the date of mailing, intends
to present for action by the Members.
7.5 VALIDATION OF MEMBERS' MEETINGS. The transactions of a meeting of
Members which was not called or noticed pursuant to the provisions of Section 73
or 74 shall be valid as though transacted at a meeting duly held after regular
call and notice, if Members holding in the aggregate fifty-one percent (51%) or
more of the Percentage Interests are present, and if, either before or after the
meeting, each of the Members entitled to vote but not present (whether in person
or by proxy, as that term is used in the Statute) at the meeting signs a written
waiver of notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers,
-18-
consents or approvals shall be filed with the records of the LLC. Attendance
shall constitute a waiver of notice, unless objection shall be made.
7.6 ACTIONS WITHOUT A MEETING.
7.6.1 Any action which may be taken at any annual or special
meeting of Members may be taken without a meeting and without prior notice
if a consent in writing, setting forth the action so taken, shall be signed
by Members holding in the aggregate the number of votes equal to or greater
than the Vote, unless a lesser vote is provided for by this Agreement or
the Statute; provided, however, that any action which by the terms of this
Agreement or by the Statute is required to be taken pursuant to a
greater vote of the Members may only be taken by a written consent which
has been signed by Members holding the requisite number of votes.
7.6.2 Unless the consents of all Members have been given in
writing, notice of any approval made by the Members without a meeting by
less than unanimous written consent shall be given at least ten (10) days
before the consummation of the action authorized by such approval. Any
Member giving a written consent may revoke the consent by a writing
received by the LLC prior to the time that written consents of Members
required to authorize the proposed action have been filed with the LLC.
Such revocation is effective upon its receipt by the LLC.
7.7 QUORUM AND EFFECT OF VOTE. Each Member shall have a number of votes
equal to the Percentage Interest held by such Member, provided that if, pursuant
to the Statute or the terms of this Agreement, a Member is not entitled to vote
on a specific matter, then such Member's number of votes and Percentage Interest
shall not be considered for purposes of determining whether a quorum is present,
or whether approval by Vote of the Members has been obtained, in respect of such
specific matter. Members holding an aggregate of fifty-one percent (51%) or
more of the Percentage Interests shall constitute a quorum at all meetings of
the Members for the transaction of business, and the Vote of Members shall be
required to approve any action, unless a greater vote is required or a lesser
vote is provided for by this Agreement or by the Statute.
-19-
ARTICLE 8
---------
RESTRICTIONS ON TRANSFER OR CONVERSION
--------------------------------------
OF LLC INTERESTS, ADDITIONAL CAPITAL CONTRIBUTIONS;
ADMISSION OF NEW MEMBERS
8.1 TRANSFER OR ASSIGNMENT OF MEMBER'S INTEREST. The Interest of each
Member and the Economic Interest of a Person who is not a Member constitutes
personal property of the Member or Economic Interest holder. Each Member and
each Economic Interest holder has no interest in the Property.
8.1.1 A Member's Interest or an Economic Interest may be
transferred or assigned only as provided in this Agreement.
8.1.2 No transfer, hypothecation, encumbrance or assignment
("Transfer") of a Member's Interest, or any part thereof, in the LLC will
be valid without the consent of a Majority in Interest of the Members,
other than the Member proposing to dispose of its Interest.
8.1.3 A Transfer of an Economic Interest may be done without the
consent of the other Members or of the Manager. Any holder of an Economic
Interest shall have no right to participate in the management of the
business and affairs of the LLC or to become a Member thereof.
8.2 VOID TRANSFERS. Any Transfer of an Interest which does not satisfy
the requirement of Section 812 shall only effect a Transfer of an Economic
Interest, and the transferring Member shall continue to be obligated under each
and every provision of this Agreement.
8.3 ADDITIONAL CAPITAL. During the Period of Duration, each of the
Members shall be required to make additional Capital Contributions to the LLC if
such additional Capital Contributions are approved by Members holding, in the
aggregate, seventy-five percent (75%) or more of the Percentage Interests.
8.3.1 Each Member shall be obligated to contribute an amount of
additional capital equal to such Member's Percentage Interest times the
total Capital Contribution amount required of all Members.
8.3.2 The Members' Percentage Interests shall be adjusted to
recognize any Member's failure to make the required additional Capital
Contribution.
8.3.3 Any Member who fails to contribute some or all of the
required additional capital shall be in default of this Agreement and shall
have no right to participate
-20-
in the management of the business and affairs of the LLC, but such Member
shall not forfeit its rights to distributions and Net Profits and Net Loss
allocations.
8.4 ADMISSION OF NEW MEMBERS. A new Member may be admitted into the LLC
only upon the consent of a Majority in Interest of the Members.
8.4.1 The amount of Capital Contribution which must be made by a
new Member shall be determined by the vote of all existing Members.
8.4.2 A new Member shall not be deemed admitted into the LLC until
the Capital Contribution required of such Person shall have been made and
such Person has become a party to this Agreement.
-21-
ARTICLE 9
---------
BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
-----------------------------------------
9.1 MAINTENANCE OF BOOKS AND RECORDS. The LLC shall cause books and
records of the LLC to be maintained in accordance with generally accepted
accounting principles, and shall give reports to the Members in accordance with
prudent business practices and the Statute. There shall be kept at the
principal office of the LLC, as well as at the office of record of the LLC
specified in Section 2.3, if different, the following LLC documents:
9.1.1 A current list of the full name and last known business or
residence address of each Member and of each holder of an Economic Interest
in the LLC set forth in alphabetical order, together with the Capital
Contributions and share in Net Profits and Net Loss of each Member and
holder of an Economic Interest;
9.1.2 A current list of the full name and business or residence
address of each Manager;
9.1.3 A copy of the Articles of Organization and any amendments
thereto, together with any powers of attorney pursuant to which the
Articles of Organization and any amendments thereto were executed;
9.1.4 Copies of the LLC's federal, state and local income tax or
information returns and reports, if any, for the six most recent Fiscal
Years;
9.1.5 A copy of this Agreement and any amendments thereto, together
with any powers of attorney pursuant to which this Agreement and any
amendments thereto were executed;
9.1.6 Copies of the financial statements of the LLC, if any, for
the six most recent Fiscal Years;
9.1.7 The LLC's books and records as they relate to the internal
affairs of the LLC for at least the current and past four Fiscal Years;
9.1.8 Originals or copies of all minutes, actions by written
consent, consents to action and waivers of notice to Members and Member
Votes, actions and consents; and
9.1.9 Any other information required to be maintained by the LLC
pursuant to the Statute.
9.2 ANNUAL ACCOUNTING. Within 120 days after the close of each Fiscal
Year of the LLC, the LLC shall (i) cause to be prepared and submitted to each
Member a balance sheet
-22-
and income statement for the preceding Fiscal Year of the LLC (or portion
thereof) in conformity with generally accepted accounting principles and (ii)
provide to the Members all information necessary for them to complete federal
and state tax returns.
9.3 INSPECTION AND AUDIT RIGHTS. Each Member and each holder of an
Economic Interest in the LLC who is not a Member has the right upon reasonable
request, for purposes reasonably related to the interest of that Person, to
inspect and copy during normal business hours any of the XXX xxxxx and records
required to be maintained in accordance with Section 91. Such right may be
exercised by the Person or by that Person's agent or attorney. Any Member may
require a review and/or audit of the books, records and reports of the LLC. The
determination of the Manager as to adjustments to the financial reports, books,
records and returns of the LLC, in the absence of fraud or gross negligence,
shall be final and binding upon the LLC and all of the Members.
9.4 RIGHTS OF MEMBERS AND NON-MEMBERS. Upon the request of a Member or a
holder of an Economic Interest who is not a Member, for purposes reasonably
related to the interest of that Person, the Manager shall promptly deliver to
the Member or holder of an Economic Interest, at the expense of the LLC, a copy
of this Agreement and a copy of the information listed in Sections 911, 912 and
914 of this Agreement.
9.5 BANK ACCOUNTS. The bank accounts of the LLC shall be maintained in
such banking institutions as the Manager shall determine, provided such
institutions have a net worth in excess of One Hundred Million Dollars
($100,000,000).
9.6 TAX MATTERS HANDLED BY MANAGERS. One of the Managers who is also a
Member, or in the event no Manager is a Member, a Member or an officer of a
corporate Member, shall be designated as "Tax Matters Partner" (as defined in
Code section 6231), to represent the LLC (at the LLC's expense) in connection
with all examinations of the LLC's affairs by tax authorities, including
resulting judicial and administrative proceedings, and to expend LLC funds for
professional services and costs associated therewith. In its capacity as "Tax
Matters Partner," the designated Person shall oversee the LLC tax affairs in the
overall best interests of the LLC. Unless the Members designate another to be
"Tax Matters Partner," the Manager shall be the "Tax Matters Partner," provided
that Person is a Member or an officer of a corporate Member.
9.7 FEDERAL INCOME TAX ELECTIONS MADE BY MANAGERS. The Manager on
behalf of the LLC may make all elections for federal income tax purposes,
including but not limited to, the following:
9.7.1 USE OF ACCELERATED DEPRECIATION METHODS. To the extent
permitted by applicable law and regulations, the LLC may elect to use an
accelerated depreciation method on any depreciable unit of the assets of
the LLC; and
9.7.2 ADJUSTMENT OF BASIS OF ASSETS. In case of a transfer of all
or part of the Interest of any Member, the LLC may elect, pursuant to code
Sections 734, 743, and 754 of the Code to adjust the basis of the assets of
the LLC.
-23-
9.7.3 ACCOUNTING METHOD. For financial reporting purposes, the
books and records of the LLC shall be kept on the accrual method of
accounting applied in a consistent manner and shall reflect all
transactions of the LLC and be appropriate and adequate for the purposes of
the LLC.
9.8 OBLIGATIONS OF MEMBERS TO REPORT ALLOCATIONS. The Members are aware
of the income tax consequences of the allocations made by this Agreement and
hereby agree to be bound by the provisions of this Section 98 in reporting their
shares of the LLC income and loss for income tax purposes.
ARTICLE 10
----------
TERMINATION AND DISSOLUTION
---------------------------
10.1 DISSOLUTION. Except as otherwise provided in Section 6.2, the LLC
shall be dissolved upon the occurrence of any of the following events:
10.1.1 When the Period of Duration of the LLC expires;
10.1.2 The written approval by a Majority In Interest of the
Members to dissolve the LLC;
10.1.3 The death, withdrawal, resignation, expulsion, bankruptcy or
dissolution of a Member or the occurrence of any other event which
terminates the Member's continued membership in the LLC, unless the
business of the LLC is continued by the unanimous vote of all remaining
Members within ninety (90) days of the happening of that event.
10.2 STATEMENT OF INTENT TO DISSOLVE. As soon as possible after the
occurrence of any of the events specified in Section 101 above, the LLC shall
execute a Statement of Intent to Dissolve in such form as prescribed by the
Secretary of State.
10.3 CONDUCT OF BUSINESS. Upon the filing of the Statement of Intent to
Dissolve with the Secretary of State, the LLC shall cease to carry on its
business, except insofar as may be necessary for the winding up of its business,
but the LLC's separate existence shall continue until the Articles of
Dissolution have been filed with the Secretary of State or until a decree
dissolving the LLC has been entered by a court of competent jurisdiction.
10.4 DISTRIBUTION OF NET PROCEEDS. The Members shall continue to divide
Net Profits and Losses and Available Cash Flow during the winding-up period in
the same manner and the same priorities as provided for in Articles 4 and 5
hereof. The proceeds from the liquidation of Property shall be applied in the
following order:
-24-
10.4.1 To the payment of creditors, in the order of priority as
provided by law, except to Members on account of their contributions;
10.4.2 To the payment of loans or advances that may have been made
by any of the Members or their Principals for working capital or other
requirements of the LLC;
10.4.3 To the Members in accordance with the positive balances in
their Capital Accounts after adjustments for all allocations of Net Profits
and Net Loss.
Where the distribution pursuant to this Section 104 consists both of cash
(or cash equivalents) and non-cash assets, the cash (or cash equivalents)
shall first be distributed, in a descending order, to fully satisfy each
category starting with the most preferred category above. In the case of
noncash assets, the distribution values are to be based on the fair market
value thereof as determined in good faith by the liquidator, and the
shortest maturity portion of such non-cash assets (e.g., notes or other
indebtedness) shall, to the extent such non-cash assets are readily
divisible, be distributed, in a descending order, to fully satisfy each
category above, starting with the most preferred category.
ARTICLE 11
----------
INDEMNIFICATION OF THE MEMBERS, MANAGERS,
-----------------------------------------
AND THEIR AFFILIATES
11.1 INDEMNIFICATION OF THE MEMBERS AND THEIR PRINCIPALS. The LLC shall
indemnify and hold harmless the Members, the Managers, their Affiliates and
their respective officers, directors, employees, agents and Principals
(individually, an "Indemnitee") from and against any and all losses, claims,
demands, costs, damages, liabilities, joint and several, expenses of any nature
(including reasonable attorneys' fees and disbursements), judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
in which the Indemnitee was involved or may be involved, or threatened to be
involved, as a party or otherwise, arising out of or incidental to the Business
of the LLC, excluding liabilities to any Member, regardless of whether the
Indemnitee continues to be a Member, an Affiliate, or an officer, director,
employee, agent or Principal of the Member at the time any such liability or
expense is paid or incurred, to the fullest extent permitted by the Statute and
all other applicable laws.
11.2 EXPENSES. Expenses incurred by an Indemnitee in defending any
claim, demand, action, suit or proceeding subject to Section 111 shall, from
time to time, be advanced by the LLC prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the LLC of an
undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that such Person is not entitled to be indemnified as authorized
in Section 111.
11.3 INDEMNIFICATION RIGHTS NON-EXCLUSIVE. The indemnification provided
by Section 111 shall be in addition to any other rights to which those
indemnified may be
-25-
entitled under any agreement, vote of the Members, as a matter of law or equity
or otherwise, both as to action in the Indemnitee's capacity as a Member, as an
Affiliate or as an officer, director, employee, agent or Principal of a Member
and as to any action in another capacity, and shall continue as to an Indemnitee
who has ceased to serve in such capacity and shall inure to the benefit of the
heirs, successors, assigns and administrators of the Indemnitee.
11.4 ERRORS AND OMISSIONS INSURANCE. The LLC may purchase and maintain
insurance, at the LLC's expense, on behalf of the Members and such other Persons
as the Members shall determine, against any liability that may be asserted
against, or any expense that may be incurred by, such Person in connection with
the activities of the LLC and/or the Members' acts or omissions as the Members
of the LLC regardless of whether the LLC would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
11.5 ASSETS OF THE LLC. Any indemnification under Section 111 shall be
satisfied solely out of the assets of the LLC. No Member shall be subject to
personal liability or required to fund or to cause to be funded any obligation
by reason of these indemnification provisions.
ARTICLE 12
----------
ISSUANCE OF LLC CERTIFICATES
----------------------------
12.1 ISSUANCE OF LLC CERTIFICATES. The interest of each Member in the
LLC shall be represented by an LLC Certificate. Upon the execution of this
Agreement and the payment of the Capital Contributions by the Members pursuant
to Section 3.2 hereof, the Manager shall cause the LLC to issue one or more LLC
Certificates in the name of each Member certifying that the Person named therein
is the record holder of the LLC Units set forth therein. For purposes of this
Agreement, the term "record holder" shall mean the person whose name appears in
Section 3.1 as the Member owning the LLC Interest at issue.
12.2 TRANSFER OF LLC CERTIFICATES. An LLC Interest which is transferred
in accordance with the terms of Section 81 of this Agreement shall be
transferable on the books of the LLC by the record holder thereof in person or
by such record holder's duly authorized attorney, but, except as provided in
Section 123 hereof with respect to lost, stolen or destroyed certificates, no
transfer of an LLC Interest shall be entered until the previously issued LLC
Certificate representing such LLC Interest shall have been surrendered to the
LLC and cancelled and a replacement LLC Certificate issued to the assignee of
such LLC Interest in accordance with such procedures as the Manager may
establish. The Manager shall issue to the transferring Member a new LLC
Certificate representing the LLC Interests not being transferred by the Member,
in the event such Member only transferred some, but not all, of the LLC
Interests represented by the original LLC Certificate. Except as otherwise
required by law, the LLC shall be entitled to treat the record holder of an LLC
Certificate on its books as the owner thereof for all purposes regardless of any
notice or knowledge to the contrary.
-26-
12.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The LLC shall issue a new
LLC Certificate in place of any LLC Certificate previously issued if the record
holder of the LLC Certificate:
12.3.1 makes proof by affidavit, in form and substance satisfactory
to the Manager, that a previously issued LLC Certificate has been lost,
destroyed or stolen;
12.3.2 requests the issuance of a new LLC Certificate before the
LLC has notice that the LLC Certificate has been acquired by a purchaser
for value in good faith and without notice of an adverse claim;
12.3.3 if requested by the Manager, delivers to the LLC a bond, in
form and substance reasonably satisfactory to the Manager, with such surety
or sureties and with fixed or open penalty as the Manager may direct, in
his reasonable discretion, to indemnify the LLC against any claim that may
be made on account of the alleged loss, destruction or theft of the LLC
Certificate; and
12.3.4 satisfies any other reasonable requirements imposed by the
Manager.
If a Member fails to notify the LLC within a reasonable time after
it has notice of the loss, destruction or theft of an LLC
Certificate, and a transfer of the LLC Interest represented by the
LLC Certificate is registered before receiving such notification,
the LLC shall have no liability with respect to any claim against
the LLC for such transfer or for a new LLC Certificate.
ARTICLE 13
----------
AMENDMENTS
----------
13.1 AMENDMENT, ETC. OF OPERATION AGREEMENT. This Agreement may be
adopted, altered, amended, or repealed and a new operating agreement may be
adopted by a Majority In Interest of the Members.
13.2 AMENDMENT, ETC. OF ARTICLES OF ORGANIZATION. Notwithstanding any
provision to the contrary in the Articles of Organization or this Agreement, in
no event shall the Articles of Organization be amended without the vote of
Members representing a Majority In Interest of the Members.
-27-
ARTICLE 14
----------
MISCELLANEOUS PROVISIONS
------------------------
14.1 COUNTERPARTS. This Agreement may be executed in several
counterparts, and all counterparts so executed shall constitute one Agreement,
binding on all of the parties hereto, notwithstanding that all of the parties
are not signatory to the original or the same counterpart.
14.2 SURVIVAL OF RIGHTS. This Agreement shall be binding upon, and, as
to permitted or accepted successors, transferees and assigns, inure to the
benefit of the Members and the LLC and their respective heirs, legatees, legal
representatives, successors, transferees and assigns, in all cases whether by
the laws of descent and distribution, merger, reverse merger, consolidation,
sale of assets, other sale, operation of law or otherwise.
14.3 SEVERABILITY. In the event any Section, or any sentence within any
Section, is declared by a court of competent jurisdiction to be void or
unenforceable, such sentence or Section shall be deemed severed from the
remainder of this Agreement and the balance of this Agreement shall remain in
full force and effect.
14.4 NOTIFICATION OR NOTICES. Except for notices to be given under
Articles 6 and 7 for purposes of meetings of Managers and meetings of Members,
any notice or other communication required or permitted hereunder shall be in
writing and shall be deemed to have been given if personally delivered,
transmitted by facsimile (with mechanical confirmation of transmission), or
deposited in the United States mail, registered or certified, postage prepaid,
addressed to the parties' addresses set forth below. Notices given in the
manner provided for in this Section 144 shall be deemed effective on the third
day following deposit in the mail or on the day of transmission or delivery if
given by facsimile or by hand. Notices must be addressed to the parties hereto
at the following addresses, unless the same shall have been changed by notice in
accordance herewith:
14.5 CONSTRUCTION. The language in all parts of this Agreement shall be
in all cases construed simply according to its fair meaning and not strictly for
or against any of the Members.
14.6 SECTION HEADINGS. The captions of the Articles or Sections in this
Agreement are for convenience only and in no way define, limit, extend or
describe the scope or intent of any of the provisions hereof, shall not be
deemed part of this Agreement and shall not be used in construing or
interpreting this Agreement.
14.7 GOVERNING LAW. This Agreement shall be construed according to the
laws of the State of Delaware.
14.8 ADDITIONAL DOCUMENTS. Each Member, upon the request of another
Member, agrees to perform all further acts and execute, acknowledge and deliver
all documents
-28-
which may be reasonably necessary, appropriate or desirable to carry out the
provisions of this Agreement, including but not limited to acknowledging before
a notary public any signature heretofore or hereafter made by a Member.
14.9 PRONOUNS AND PLURALS. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine and
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
14.10 TIME OF THE ESSENCE. Except as otherwise provided herein, time is
of the essence in connection with each and every provision of this Agreement.
14.11 FURTHER ACTIONS. Each of the Members agrees to execute, acknowledge
and deliver such additional documents, and take such further actions, as may
reasonably be required from time to time to carry out each of the provisions,
and the intent, of this Agreement, and every agreement or document relating
hereto, or entered into in connection herewith.
14.12 WAIVER OF JURY. WITH RESPECT TO ANY DISPUTE ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, AS TO WHICH NO MEMBER
INVOKES THE RIGHT TO ARBITRATION HEREINABOVE PROVIDED, OR AS TO WHICH LEGAL
ACTION NEVERTHELESS OCCURS, EACH MEMBER HEREBY IRREVOCABLY WAIVES ALL RIGHTS IT
MAY HAVE TO DEMAND A JURY TRIAL. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY THE MEMBERS AND EACH MEMBER ACKNOWLEDGES THAT NONE OF THE
OTHER MEMBERS NOR ANY PERSON ACTING ON BEHALF OF THE OTHER PARTIES HAS MADE ANY
REPRESENTATION OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. THE MEMBERS EACH FURTHER ACKNOWLEDGE THAT IT HAS
BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THIS WAIVER WITH COUNSEL. THE MEMBERS EACH FURTHER ACKNOWLEDGES THAT IT HAS
READ AND UNDERSTAND THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
14.13 THIRD PARTY BENEFICIARIES. There are no third party beneficiaries
of this Agreement except (i) Affiliates and Principals of the Members and (ii)
any other Persons as may be entitled to the benefits of Section 111 hereof.
14.14 TAX ELECTIONS. The Manager, in his sole discretion, shall cause the
LLC to make or not make all elections required or permitted to be made for
income tax purposes.
14.15 PARTITION. The Members agree that the Property that the LLC may own
or have an interest in is not suitable for partition. Each of the Members
hereby irrevocably waives any and all rights that it may have to maintain any
action for partition of any Property in which the LLC may at any time have an
interest.
-29-
14.16 ENTIRE AGREEMENT. This Agreement and the Articles of Organization
constitute the entire agreement of the Members with respect to, and supersedes
all prior written and oral agreements, understandings and negotiations with
respect to, the subject matter hereof.
14.17 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement or
condition.
14.18 ATTORNEYS' FEES. In the event of any litigation, arbitration or
other dispute arising as a result of or by reason of this Agreement, the
prevailing party in any such litigation, arbitration or other dispute shall be
entitled to, in addition to any other damages assessed, its reasonable
attorneys' fees, and all other costs and expenses incurred in connection with
settling or resolving such dispute. The attorneys' fees which the prevailing
party is entitled to recover shall include fees for prosecuting or defending any
appeal and shall be awarded for any supplemental proceedings until the final
judgment is satisfied in full. In addition to the foregoing award of attorneys'
fees to the prevailing party, the prevailing party in any lawsuit or arbitration
procedure on this Agreement shall be entitled to its reasonable attorneys' fees
incurred in any post judgment proceedings to collect or enforce the judgment.
This attorneys' fees provision is separate and several and shall survive the
merger of this Agreement into any judgment.
14.19 CONFIDENTIALITY AND PRESS RELEASES. The Members and their
respective Affiliates and Principals hereby agree that it is in all of their
best interests to keep this Agreement and the Business of the LLC and all
information concerning such business confidential. Such parties each agree that
they will not take any action nor conduct themselves in any fashion, including
giving press releases or granting interviews, that would disclose to third
parties unrelated to the LLC or the Business of the LLC any aspect of the LLC or
the Business of the LLC without the written approval of a Majority in Interest
of the Members. To the extent such prior approval is given, it may be
conditioned upon approval of the text of any press release or the scope of any
intended interview.
-30-
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the date first written above.
G&L REALTY PARTNERSHIP, L.P.,
A Delaware Limited Partnership
By: G&L Realty Corp.,
a Maryland Corporation,
as General Partner
By: /s/ Xxxx X. Xxxxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxxxx
Its: Sr. Vice President
G&L HAMPDEN, INC.,
A Delaware Corporation
By: /s/ Xxxx X. Xxxxxxxxx
________________________________
Name: Xxxx X. Xxxxxxxxx
Its: Sr. Vice President
-31-
EXHIBIT A
(FACE OF CERTIFICATE)
THE MEMBERSHIP PERCENTAGE INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE. SUCH INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS
SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE LLC AGREEMENT (AS DEFINED BELOW) PROVIDES FOR FURTHER RESTRICTIONS ON
TRANSFER OF THE INTEREST REPRESENTED HEREBY.
CERTIFICATE FOR A MEMBERSHIP PERCENTAGE INTEREST
IN
G&L HAMPDEN, LLC
Certificate No. ______________ ____________ Percentage Interest
G&L HAMPDEN, INC., as the Manager of G&L HAMPDEN, LLC, a Delaware
limited liability company (the "LLC"), hereby certifies that
_____________________________________________________________ is the
holder of a Membership Percentage Interest, as that term is defined in
the Operating Agreement of G&L HAMPDEN, LLC, dated as of OCTOBER 15,
1997, as amended and restated from time to time (the "Agreement")
(copies of which are on file at the principal office of the LLC).
This Certificate is not negotiable or transferable except by operation
of law, or as otherwise provided in the Agreement, and any such
transfer will be valid only upon delivery of this Certificate,
together with an assignment in the form set forth on the reverse
hereof (or otherwise acceptable to the Manager and sufficient to
convey an interest in an limited liability company pursuant to the
Delaware Limited Liability Company Act, as it may be amended and in
effect from time to time, or any successor statute thereto), duly
executed, to the Manager of the LLC.
Dated: ______________________
MANAGER
G&L HAMPDEN, INC.,
A Delaware Corporation
By: _____________________________
Xxxx X. Xxxxxxxxx
Senior Vice President
EXHIBIT A
- 1 -
(REVERSE OF CERTIFICATE)
ASSIGNMENT OF PERCENTAGE INTEREST
IN
G&L HAMPDEN, LLC
FOR VALUE RECEIVED, the undersigned ("Assignor") hereby assigns,
conveys, sells and transfers unto
("Assignee")
(Please insert Social Security (Please print or typewrite
or other identifying number of Assignee) name and address of Assignee)
all rights and interest of Assignor in _________ of the Membership Percentage
Interest evidenced hereby and directs that all future distributions and
allocations with respect to such specified assigned Percentage Interest be paid
or allocated by the LLC to such Assignee. The Assignor hereby irrevocably
constitutes and appoints the Manager as Assignor's attorney-in-fact with full
power of substitution in the premises to transfer the same on the books of the
LLC.
Dated:
Signature of Assignor
Signature guaranteed:
Note: The signature to any assignment must correspond with the name as
written upon the face of this Certificate, in every particular,
without alteration or enlargement or any change whatever. If the
assignment is executed by an attorney, executor, administrator,
trustee or guardian, the person executing the assignment must give
such person's full title in such capacity, and proper evidence of
authority to act in such capacity, if not on file with the LLC or its
transfer agent, must be forwarded with this Certificate.
The undersigned, the Manager of the LLC, hereby consents to this
Assignment pursuant to Section 122 of the Agreement.
Dated: ______________________________
EXHIBIT A
- 2 -
THE CLASS A MEMBERSHIP PERCENTAGE INTEREST EVIDENCED HEREBY ARE SUBJECT TO ALL
TERMS AND CONDITIONS OF THE AGREEMENT AND UNLESS AND UNTIL ADMITTED TO THE LLC
AS A MEMBER, NO ASSIGNEE SHALL BE ENTITLED TO ANY OF THE RIGHTS, POWERS OR
PRIVILEGES OF THE ASSIGNOR EXCEPT THAT ASSIGNEE SHALL BE ENTITLED TO THE
DISTRIBUTIONS PAID AND ALLOCATIONS MADE WITH RESPECT TO SUCH INTEREST AS
DIRECTED BY THE ASSIGNOR ABOVE.
MANAGER
G&L HAMPDEN, INC.,
A Delaware Corporation
By:___________________________
Xxxx X. Xxxxxxxxx
Senior Vice President
FOOTER PAGE:
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
G&L HAMPDEN, LLC
A DELAWARE LIMITED LIABILITY COMPANY
EXHIBIT A
- 3 -
