AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
CONCORD DEBT HOLDINGS LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, made as of the
21st day of September, 2007 by and among WRT REALTY L.P., a Delaware limited
partnership ("WRT"), THE LEXINGTON MASTER LIMITED PARTNERSHIP, a Delaware
limited partnership (formerly known as The Xxxxxxx Master Limited Partnership)
("Lexington"), and WRP MANAGEMENT LLC, a Delaware limited liability company (the
"Administrative Manager").
RECITALS:
WHEREAS, WRT, Lexington and FUR Holdings LLC ("FUR") are party to that
certain Limited Liability Company Agreement of 111 Debt Holdings LLC, a Delaware
limited liability company (the "Company"), dated as of March 31, 2006 (the
"Original Agreement");
WHEREAS, WRT and Lexington previously appointed the Administrative Manager
as the administrative manager of the Company;
WHEREAS, WRT, Lexington and WRP desire to amend and restate the Original
Agreement in its entirety;
NOW, THEREFORE, In consideration of the covenants and conditions set forth
in this Agreement, the parties agree as follows.
ARTICLE I
CERTAIN DEFINITIONS
1.1 General Terms. For purposes of this Agreement, the following terms
shall have the following respective meanings:
Administrative Manager: WRP Management LLC, a Delaware limited liability
company.
Affiliate: With respect to a specified Person, (i) a Person who, directly
or indirectly through one or more intermediaries, controls, is controlled by or
is under common control with, the specified Person, (ii) any Person who is an
officer, director, member or trustee of, or serves in a similar capacity with
respect to, the specified Person or of which the specified Person is an officer,
partner, member or trustee, or with respect to which the specified Person serves
in a similar capacity, (iii) any Person who, directly or indirectly, is the
beneficial owner of 25% or more of any class of equity securities of, or
otherwise has a substantial beneficial interest in, the specified Person or of
which the specified Person has a substantial beneficial interest and (iv) the
spouse, issue, or parent of the specified Person. An Affiliate does not include
a Person who is a partner in a partnership or joint venture with the Company or
any Member if such Person is not otherwise an Affiliate of the Company or any
Member.
Bankruptcy: With respect to any Member, (i) the filing by that Member of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of his debts under Title 11 of the United States Code
or any other Federal or state insolvency law, or a Member's filing an answer
consenting to or acquiescing in any such petition, (ii) the making by that
Member of any assignment for the benefit of his creditors or (iii) the
expiration of 60 days after the filing of an involuntary petition under Title 11
of the United States Code, an application for the appointment of a receiver,
trustee or custodian for the assets of that Member, or an involuntary petition
seeking assets of that Member, or an involuntary petition seeking liquidation,
reorganization, arrangement or readjustment of its debts under any other Federal
or state insolvency law, provided that the same shall not have been vacated, set
aside or stayed within such 60-day period.
Capital Accounts: The capital accounts of the Members, maintained in
accordance with Article IV.
Capital Contributions: The capital contributions of the Members set forth
in Section 4.2.
Cause: Either (i) the Administrative Manager's continuous and intentional
failure to perform its duties under this Agreement; (ii) intentional misconduct
by the Administrative Manager which is materially injurious to the Company or
any member, monetarily or otherwise; or (iii) the material breach by the
Administrative Manager of any of the terms or conditions of this Agreement
(including, without limitation, Section 6.3 hereof) or any agreement relating to
a Loan Asset or an Investment Entity Loan.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any similar Federal internal revenue law enacted in substitution for the Code.
Company: Concord Debt Holdings LLC
Company Interest. The ownership interest of any Member in the Company,
including, without limitation, all rights to receive Distributions and
allocations of Profit and Loss.
Company Law: The Delaware Limited Liability Company Law, as amended from
time to time.
Covered Person: Any Member, the Administrative Manager, the members of the
Investment Committee or any Affiliate thereof, or any officer, director,
shareholder, partner, employee, representative or agent of a Member, the
Administrative Manager or their respective Affiliates, or any employee or agent
of the Company or its Affiliates.
IC Transaction: As defined in Section 3.2(b)(i) hereof.
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Interest: A Member's share of the Profits and Losses of the Company and a
Member's rights to receive distributions in accordance with the provisions of
this Agreement and the Company Law.
Investment Committee: As defined in Section 3.2 hereof.
Investment Entities: 111 Debt Acquisition LLC, a Delaware limited
liability company, and 111 Debt Acquisition - Two LLC, a Delaware limited
liability company, each of which will be formed for the sole purpose of
acquiring and disposing of Loan Assets, and their respective subsidiaries, if
any.
Investment Entity Loan: Shall mean (i) any loan agreement, warehouse line
of credit or other financing arrangement obtained by an Investment Entity other
than a borrowing under the Warehouse Lines or a borrowing in connection with the
acquisition of a Loan Asset that is not an IC Transaction.
Lexington Change of Control: Any of
(A) The acquisition by any Person (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) ("Beneficial Ownership") of 20% or more of
either (i) the then outstanding common shares of beneficial interest of LXP (the
"Outstanding LXP Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of LXP entitled to vote generally in the election
of trustees (the "Outstanding LXP Voting Securities"); provided, however, that
for purposes of this subsection (A), the following acquisitions shall not
constitute a Change in Control: (1) any acquisition directly from LXP, (2) any
acquisition by LXP, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by LXP, or any entity controlled by LXP, or (4)
any acquisition by any entity pursuant to a transaction which complies with
clauses (1), (2) and (3) of subsection (C) of this definition; or
(B) Individuals who, as of the date hereof, constitute the Board of
Trustees of LXP (the "LXP Incumbent Board") cease for any reason to constitute
at least a majority of the Board of Trustees of LXP; provided, however, that any
individual becoming a trustee subsequent to the date hereof whose election, or
nomination for election by the applicable Person's shareholders, was approved by
a vote of at least a majority of the trustees then comprising the LXP Incumbent
Board shall be considered as though such individual were a member of the LXP
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board of Trustees of LXP; or
(C) Consummation of a reorganization, merger or consolidation of
Lexington or LXP (a "LXP Business Combination"), in each case, unless, following
such LXP Business Combination, (1) all or substantially all of the Persons who
had Beneficial Ownership, respectively, of the applicable Outstanding LXP Common
Stock and applicable Outstanding LXP Voting Securities immediately prior to such
LXP Business Combination, have Beneficial Ownership, of more than 50%,
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respectively, of the then outstanding common shares of beneficial interest and
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of trustees, as the case may be, of the entity
resulting from such LXP Business Combination (including, without limitation, an
entity which as a result of such transaction owns the applicable company or all
or substantially all of such company's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such LXP Business Combination of the applicable Outstanding
LXP Common Stock and Outstanding LXP Voting Securities, as the case may be, (2)
no Person (excluding any entity resulting from such Business Combination or any
employee benefit plan (or related trust) of such company or such entity
resulting from such Business Combination) acquires Beneficial Ownership of 20%
or more of, respectively, the then outstanding shares of common stock of the
entity resulting from such Business Combination or the combined voting power of
the then outstanding voting securities of such entity except to the extent that
such ownership existed prior to the LXP Business Combination and (3) at least a
majority of the members of the board of directors or board of trustees, as the
case may be, of the entity resulting from such LXP Business Combination were
members of the LXP Incumbent Board at the time of the execution of the initial
agreement with the successor or purchasing entity in respect of such LXP
Business Combination, or of the action of the Board of Trustees of LXP,
providing for such LXP Business Combination; or
(D) Approval of a complete liquidation or dissolution of Lexington
or LXP.
Loan Assets: Loan receivables, participation interests and other
instruments evidencing indebtedness of a third party.
LXP: Lexington Realty Trust, a Maryland real estate investment trust,
together with its permitted successors and assigns.
Management Agreement: The Management Advisory Agreement, dated as of
January 1, 2007, between the Company and the Administrative Manager, as the same
may be amended, modified and supplemented from time to time.
Maximum Capital Contribution: With respect to each Member, $137,500,000.
Members: WRT and Lexington and such other Persons who become party hereto,
together with their permitted successors and assigns.
Ownership Percentages. With respect to each Member, each Member's
Ownership Percentage shall be the percentage determined by dividing such
Member's Capital Contribution at the date of determination by the sum of all
Members' Capital Contributions as of such date.
Person: An individual, trust, estate, partnership, joint venture,
association, company, corporation, limited liability company or other entity.
Profit and Loss: With respect to each fiscal year or other period, an
amount equal to the Company'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:
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(i) Any income of the Company that is exempt from Federal income tax
and not otherwise taken into account in computing Profits or Losses
pursuant to this definition of Profits and Losses shall be added to such
taxable income or loss; and
(ii) Any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant
to Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into
account in computing Profit or Loss shall be subtracted from such taxable
income or loss.
Regulations: The final, temporary and proposed Income Tax Regulations
promulgated under the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
Securitized Entity: A collateralized debt obligation entity,
collateralized mortgage backed securities and similar securitized entities
established by the Company or its subsidiary.
Transfer: (i) any sale, conveyance, transfer or assignment, or the entry
into any agreement to sell, convey, transfer or assign, whether by law or
otherwise, of, on, in or affecting (x) all or part of a Member's Company
Interest (including any legal or beneficial direct or indirect interest
therein), (y) any direct or indirect interest in a Member (including any profit
interest), or (z) any direct or indirect interest in a Member, (ii) any
Lexington Change of Control, or (iii) any WRT Change of Control. For purposes
hereof, a Transfer of an interest in a Member shall be deemed to include (A) if
a Member or controlling equityholder of a Member is a corporation or trust, the
voluntary or involuntary sale, conveyance or transfer of such corporation's
stock or trust's beneficial interests (or the stock or beneficial interests of
any corporation or trust directly or indirectly controlling such corporation or
trust by operation of law or otherwise) and (B) if a Member or controlling
equityholder of a Member is a limited or general partnership, joint venture or
limited liability company, the change, removal, resignation or addition of a
general partner, managing partner, limited partner, joint venturer or member or
the transfer of the partnership interest of any general partner, managing
partner or limited partner or the transfer of the interest of any joint venturer
or member.
Warehouse Lines: Individually and collectively (i) that certain Master
Repurchase Agreement, dated March 30, 2006, among Column Financial Inc., 111
Debt Acquisition LLC, 111 Debt Acquisition Mezz LLC and Lexington and (ii) that
certain Master Repurchase Agreement to be entered into between Bear Xxxxxxx
International Limited and 111 Debt Acquisition-Two LLC.
Winthrop: Winthrop Realty Trust, an unincorporated association in the form
of an Ohio business trust, together with its permitted successors and assigns.
WRT Change of Control: Any of
(A) The acquisition by any Person (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) of Beneficial Ownership of 20% or more
of either (i) the then outstanding common shares of beneficial interest of
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Winthrop (the "Outstanding Winthrop Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of Winthrop entitled to vote
generally in the election of trustees (the "Outstanding Winthrop Voting
Securities"); provided, however, that for purposes of this subsection (A), the
following acquisitions shall not constitute a Change in Control: (1) any
acquisition directly from Winthrop, (2) any acquisition by Winthrop, (3) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Winthrop, or any entity controlled by Winthrop, or (4) any
acquisition by any entity pursuant to a transaction which complies with clauses
(1), (2) and (3) of subsection (C) of this definition; or
(B) Individuals who, as of the date hereof, constitute the Board of
Trustees of Winthrop (the "Winthrop Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Trustees of Winthrop; provided,
however, that any individual becoming a trustee subsequent to the date hereof
whose election, or nomination for election by the applicable Person's
shareholders, was approved by a vote of at least a majority of the trustees then
comprising the Winthrop Incumbent Board shall be considered as though such
individual were a member of the Winthrop Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Trustees of
Winthrop; or
(C) Consummation of a reorganization, merger or consolidation of WRT
or Winthrop (a "Winthrop Business Combination"), in each case, unless, following
such Winthrop Business Combination, (1) all or substantially all of the Persons
who had Beneficial Ownership, respectively, of the applicable Outstanding
Winthrop Common Stock and applicable Outstanding Winthrop Voting Securities
immediately prior to such Winthrop Business Combination, have Beneficial
Ownership, of more than 50%, respectively, of the then outstanding common shares
of beneficial interest and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of trustees, as the
case may be, of the entity resulting from such Winthrop Business Combination
(including, without limitation, an entity which as a result of such transaction
owns the applicable company or all or substantially all of such company's assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Winthrop Business
Combination of the applicable Outstanding Winthrop Common Stock and Outstanding
Winthrop Voting Securities, as the case may be, (2) no Person (excluding any
entity resulting from such Business Combination or any employee benefit plan (or
related trust) of such company or such entity resulting from such Business
Combination) acquires Beneficial Ownership of 20% or more of, respectively, the
then outstanding shares of common stock of the entity resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such entity except to the extent that such ownership existed prior
to the Winthrop Business Combination and (3) at least a majority of the members
of the board of directors or board of trustees, as the case may be, of the
entity resulting from such Winthrop Business Combination were members of the
Winthrop Incumbent Board at the time of the execution of the initial agreement
with the successor or purchasing entity in respect of such Winthrop Business
Combination, or of the action of the Board of Trustees of Winthrop, providing
for such Winthrop Business Combination; or
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(D) Approval of a complete liquidation or dissolution of WRT or
Winthrop.
1.2 Other Terms. Unless the context shall require otherwise:
(a) Words importing the singular number or plural number shall
include the plural number and singular number respectively;
(b) Words importing the masculine gender shall include the feminine
and neuter genders and vice versa;
(c) Reference to "include", "includes", and "including" shall be
deemed to be followed by the phrase "without limitation"; and
(d) Reference in this Agreement to "herein", "hereof", "hereby" or
"hereunder", or any similar formulation, shall be deemed to refer to this
Agreement as a whole, including the Exhibits.
ARTICLE II
GENERAL PROVISIONS
2.1 Continuation of the Company. The Members desire to continue the
existence of the Company under the Company Law pursuant to this agreement. The
provisions of the Company Law shall govern the rights and obligations of, and
the relationships among, the Members except as modified by the provisions of
this Agreement.
2.2 Further Action. The Administrative Manager shall take any and all
action, as may be required, from time to time, under the laws of the State of
Delaware, to give effect to, and continue in good standing, the Company.
2.3 Name of the Company. The name of the Company shall be Concord Debt
Holdings LLC, or such other name as the Members may from time to time determine.
The Administrative Manager shall have the right to cause the Company to operate
under one or more assumed names (which shall not include the name of any Member
or any similar name) where required to comply with the laws of any states in
which the Company is doing business. The Administrative Manager shall cause to
be filed on behalf of the Company such company or assumed or fictitious name
certificate or certificates or other similar documents as may from time to time
be required by law for the formation and continuation of the Company as a
limited liability company under the laws of Delaware applicable to a limited
liability company and the laws of such other states in which the Company is
doing business regarding the qualification of a foreign limited liability
company.
2.4 Business of the Company. The business of the Company shall be to: (i)
acquire, own, hold, sell, transfer, hypothecate and ultimately dispose of the
Investment Entities; (ii) make, enter into, perform and carry out any
arrangements, contracts or agreements relating to the foregoing, and (iii) do
any and all things necessary or incidental to any of the foregoing to carry out
and further the business of the Company as contemplated by this Agreement. The
Company shall not engage in any business or activity not authorized by this
Agreement.
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2.5 Place of Business; Registered Agent. The Company's principal place of
business is 0 Xxxxxxxx Xxxxx, Xxxxx 000, P.O. Box 9507, Xxxxxx, Xxxxxxxxxxxxx
00000 or such other place as the Administrative Manager may, from time to time,
determine. The Company's registered agent in Delaware shall be c/o Corporation
Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000. Such office and registered agent may be changed from
time to time in accordance with the Company Law, as may be approved the
Administrative Manager.
2.6 Duration of the Company. The Company shall commence upon the filing of
a Certificate of Formation for the Company in accordance with the Company Law,
and shall continue until dissolved in accordance with Article IX of this
Agreement.
2.7 Title to Company Property. A Member's interest in the Company shall
for all purposes be personal property. All property owned by the Company,
whether real or personal, tangible or intangible, shall be owned by the Company
as an entity, and no Member, individually, shall have any ownership interest in
that property.
ARTICLE III
MANAGEMENT
3.1 Management of the Company. Except as otherwise provided herein, the
overall management and control of the business and affairs of the Company shall
be vested in the Members.
3.2 Investment Committee. (a) The Members hereby establish an investment
committee (the "Investment Committee") which Investment Committee shall consist
of five individuals: each Member shall appoint two members, and the
Administrative Manager shall appoint one member.
(b) Except as otherwise expressly provided in this Agreement, all
decisions with respect to any matter set forth in this Agreement or otherwise
affecting or arising out of the conduct of the business of the Company shall be
made by the affirmative vote of at least three members of the Investment
Committee appointed by the Members including, without limitation:
(i) all acquisitions and dispositions of Loan Assets by an
Investment Entity with an initial value or purchase price of $20,000,000
or more (a "IC Transaction");
(ii) the entering into of an Investment Entity Loan;
(iii) the payment of any fees to a Member, the Administrative
Manager or an Affiliate thereof except as contemplated by Section 3.6
hereof;
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(iv) the retention of accountants or Xxxxxxxx-Xxxxx
consultants on behalf of the Company or an Investment Entity.
3.3 Limitation on the Investment Committee's Authority. Notwithstanding
anything herein to the contrary, the Investment Committee shall not have the
authority to do any of the following acts, except with the approval of all
Members:
(i) permit the merger or consolidation of the Company or an
Investment Entity with or an investment by it in any other Person;
(ii) admit any Person as a Member except as provided in
Article 7 or require any Capital Contribution except as provided in
Article 4;
(iii) enter into any transactions, agreements or other
arrangements on behalf of the Company with the Administrative Manager, a
Member or their respective Affiliates;
(iv) enter into any agreement which would cause any Member to
become personally liable on, in respect of, or to guaranty, any
indebtedness of the Company without such Member's consent;
(v) cause the Company or an Investment Entity to make any
Bankruptcy filing;
(vi) take any action that, if taken directly by WRT, would
require the approval of the Conflicts Committee or, if taken directly by
Lexington, would be subject to the provisions of Article XIV of
Lexington's bylaws; or
(vi) amend this Agreement.
3.4 Authority of the Administrative Manager. In addition to all other
rights granted to, and the obligations of, the Administrative Manager hereunder
and under the Management Agreement, the Administrative Manager shall have the
right to cause an Investment Entity to (i) acquire or dispose of a Loan Asset
with an initial value or purchase price of less than $20,000,000, (ii) modify
the terms of a document underlying a Loan Asset unless the economic terms of
such Loan Asset, the security for such Loan Asset or the maturity date of such
Loan Asset are modified, and (iii) take all actions on behalf of the Company
that are "ministerial" or "administrative" in nature.
3.5 Services of the Members. The Members, the Investment Committee and the
Administrative Manager shall devote such time and effort to the business of the
Company as shall reasonably be necessary to promote adequately the interests of
the Company and the mutual interests of the Members, and shall perform its
duties with the same degree of care it exercises with respect to loans where it
is the sole participant; however, it is specifically understood and agreed that
the Members and their respective Affiliates shall not be required to devote full
time to the business of the Company and that, except as otherwise provided in
this Section 3.5 the Members or in such other agreements in effect from time to
time among the two or more of the parties hereto, the Investment Committee the
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Administrative Manager and their respective Affiliates may at any time and from
time to time engage in and possess interests in other business ventures of any
and every type and description, and neither the Company, the Members nor the
Administrative Manager shall by virtue of this Agreement or otherwise have any
right, title or interest in or to such independent ventures.
3.6 Reimbursement of Expenses; Fees. Notwithstanding anything else herein
but subject to Article X hereof, neither the Members nor the Administrative
Manager shall be entitled to reimbursement or payment for their expenses
associated with Company activities. Without the consent of any Member, the
Administrative Manager shall have the right to cause the Company to enter into
the Management Agreement and cause the Company to consent to the entering into
by a Securitized Entity of a Collateral Management Agreement with an affiliate
of the Company on terms and conditions consistent with the terms and conditions
for collateral management agreements entered into between entities similar to
such Securitized Entity and third party collateral managers of comparable
experience and expertise.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Capital. The capital of the Company shall consist of the amounts
contributed to the Company pursuant to this Article IV.
4.2 Capital Contributions. Each of the Members s have previously made
Capital Contribution to the Company in the amounts set forth on the books and
records of the Company.
(b) At such time or times as the Investment Committee or the
Administrative Manager, as applicable, shall have authorized the acquisition by
an Investment Entity of a Loan Asset, the Administrative Member shall deliver
notice thereof to each Member (the "Capital Call") setting forth the total
amount required for the acquisition of the Loan Asset (the "Capital Call
Amount"). Within five days of receipt of the Capital Call, each Member shall,
make an Additional Capital Contribution to the Company in an amount equal to the
product of (1) the Ownership Percentage of such Member and (2) the Capital Call
Amount; provided, however, in no event shall a Member be required or permitted
to make an Additional Capital Contribution if, when added to all Capital
Contributions previously made to the Company by such Member, such amount exceeds
the Maximum Capital Contribution for such Member. If a Member shall fail to
timely make a required Additional Capital Contribution pursuant to this
paragraph (b), the other Members shall have the right, but not the obligation,
to satisfy such Member's Additional Capital Contribution by making a loan (the
"Default Loan") to the Company equal to the product of (i) the amount of the
defaulting Member's Additional Capital Contribution and (ii) a fraction, the
numerator of which is such Member's Ownership Percentage and the denominator of
which shall be the aggregate Ownership Percentages of all Members electing to
make a loan to the Company. All Default Loans shall bear interest at a rate of
15% per annum and shall be payable from the assets of the Company.
(c) Except as set forth in this Section 4.2, no additional Capital
Contributions shall be required or permitted of any Member without the consent
of all members.
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4.3 Capital Accounts. (a) The Administrative Manager shall cause to be
kept for each Member a capital account ("Capital Account") which shall be
computed from the date hereof and which shall initially be equal to the capital
contribution of each Member on the date hereof and shall be determined and
maintained in accordance with Regulations Section 1.704-1(b)(2)(iv), and shall
be interpreted and applied, and Capital Accounts shall be maintained, in a
manner consistent with such Regulations.
(b) No interest shall be paid by the Company on any Capital
Contribution. A Member shall not be entitled to demand the return of, or to
withdraw, any part of his Capital Contribution or any balance in his Capital
Account, or to receive any distribution, except as provided for in this
Agreement. Neither the Administrative Manager nor any Member shall be liable for
the return of the Capital Contributions of any other Member and no Member shall
have any obligation to restore the amount of any deficit in its Capital Account
to the Company.
ARTICLE V
DISTRIBUTIONS; ALLOCATION INCOME AND LOSSES
5.1 Distributions. Distributions pursuant to this Section 5.1 shall be
made at such time or times, and in such amounts, as the Investment Committee
shall determine. Distributions shall made to the Members in accordance with
their Ownership Percentages and in the form of cash only.
5.2 Allocations of Profit and Loss. Profit and Loss for any fiscal year of
the Company shall be allocated among the Members in accordance with their
Ownership Percentages from time to time.
5.3 Tax Elections. The Investment Committee shall determine whether the
Company shall make any applicable tax elections, including an election in
accordance with Section 754 of the Code to adjust the basis of the assets of the
Company for Federal income tax purposes in the event of a distribution of
Company property as described in Section 734 of the Code or a transfer by any
Member of its Company Interest as described in Section 734 of the Code.
ARTICLE VI
BOOKS AND RECORDS; ACCOUNTS
6.1 Books and Records. True and correct books of account with respect to
the operations of the Company shall be kept at the principal place of business
of the Company. The Administrative Manager shall be responsible for keeping the
books of account. The Company shall also maintain at its principal place of
business the following records: (a) a current list of the full name and last
known business or residence address of each Member set forth in alphabetical
order, (b) a copy of the Certificate of Formation of the Company and all
certificates of amendment thereto, together with executed copies of any powers
of attorney pursuant to which any certificate has been executed, (c) copies of
the Company's Federal, state and local income tax returns and reports, if any,
for the three most recent years and (d) copies of this Agreement and any
amendments hereto and of any financial statements of the Company for the three
most recent years.
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Any Member shall have the right, at its own expense, to examine, or have
its duly authorized representative examine, the books of account of the Company
and such other information reasonably related to such Member's interest in the
Company, and the Company shall make them available at the office at which those
books are maintained.
6.2 Accounting Basis and Fiscal Year. The Company's books shall be kept on
the cash method of accounting. The fiscal year of the Company shall be the
calendar year.
6.3 Tax Returns. (a) The Administrative Manager shall cause the Company to
prepare or cause to be prepared and shall file on or before the due date (or any
extension thereof) any Federal, state or local tax returns required to be filed
by the Company. The Company shall furnish each Member within 60 days of the end
of each fiscal year or as soon thereafter as such information is available to
the Company, with such information as may be needed to enable such Member to
file his or its Federal income tax return and any required state income tax
return. The Administrative Manager shall cause the Company to pay, out of
available cash flow and other assets of the Company, any taxes payable by the
Company. Except as otherwise set forth in this Agreement, all decisions
regarding tax elections shall be made by the Administrative Manager.
(b) Each Member agrees to report, on his or its own income tax
returns each year, each item of income, gain, loss, deduction and credit as
reported by the Company to such Member on the Schedule K-1 (or other similar tax
report) issued by the Company to such Member for such year. Except as otherwise
required by law, no Member shall take any tax reporting position that is
inconsistent in any respect with any tax reporting positions taken by the
Company or any entity in which the Company owns any equity interest, and, in the
event of a breach by such Member of the provisions of this Section 6.3(b), such
Member shall be liable to the Company and the other Members for any costs,
liabilities and damages (including, without limitation, consequential damages)
incurred by any of them on account of such breach.
6.4 Tax Matters Member. Lexington is hereby designated the "Tax Matters
Partner" pursuant to Section 6231 of the Code (and any comparable provision of
applicable state and local tax laws). The Members hereby consent to such
designation and agree to take any further action as may be required to
effectuate and maintain such designation and Lexington is authorized to take
such actions as may be required to effectuate and maintain such designation.
6.5 Reports to Members. The Administrative Manager shall cause all reports
and other documents received by it with respect to the Loan Participation or the
Loan to be delivered to the Members within five business days of receipt thereof
including, without limitation, all notices regarding the issuance of dividends
and all copies of all proxy material. The Administrative Manager shall promptly
give notice to the Members any development of which the Administrative Manager
is aware that in its reasonable judgment will result in a material adverse
effect to the Company or that would result in action requiring a consent of the
Members hereunder.
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ARTICLE VII
ASSIGNABILITY OF INTERESTS; ADDITIONAL MEMBERS
7.1 General Conditions. Whether or not otherwise permitted by this
Agreement, no Member shall Transfer all or any portion of its Company Interest,
or any rights to receive any Distributions under this Agreement if, in the
opinion of counsel to the Company or, in the opinion of counsel to the
non-transferring Members, which counsel is satisfactory to the transferring
Member, in its reasonable discretion, the Transfer would (a) cause the
termination or dissolution of the Company under the Company Law; (b) require
registration under the Securities Act of 1933, as amended, or under any other
securities law or result in the violation of any applicable state securities
laws; (c) cause the Company or any Member to be subject to any additional
regulatory requirements; (d) cause the Company to be taxed as a corporation
under the Code; or (e) cause a default under any agreement to which the Company
is a party.
7.2 Transfer by Members. No Member may Transfer all or any portion of its
Company Interest without the consent of all Members other than to an Affiliate
of such Member. Notwithstanding the preceding sentence, each Member agrees that
its consent will not be unreasonably withheld if such purported Transfer is to a
Person that has provided evidence sufficient to the consenting Member that such
Person has the financial capability to make capital contributions to the Company
equal to not less than 12.5% of the Company's total net asset value.
7.3 Additional Member. A transferee of all or part of the Company Interest
of a Member permitted under this Agreement shall be admitted to the Company as
an Additional Member and be listed as a Member on the books and records of the
Company only if (a) the transferring Member gives such right to the transferee,
(b) except for transfers to an Affiliate, the Members consent to the admission
of the transferee, which consent may be withheld in the Members' sole
discretion, (c) the transferee shall execute and deliver an agreement reasonably
satisfactory to and approved by the Members, agreeing to assume and to be bound
by and to comply with all of the terms and conditions of this Agreement
applicable to the Members, (d) the transferee shall execute, and deliver all
necessary certificates or other documents and perform such other acts as may be
required under the Company Law or other applicable laws and regulations to
effectuate the admission of the Additional Member and to preserve the status and
legal compliance of the Company as reasonably satisfactory to and approved by
the Members and (e) the transferee shall pay all reasonable expenses of the
Company and the Members connected with the admission including, but not limited
to, reasonable legal and accounting fees and disbursements.
7.4 Treatment. Until compliance with the provisions of Section 7.3, the
Company shall be entitled to treat the record owner of any Company Interest as
the absolute owner of such Company Interest in all respects and shall incur no
liability for Distributions made to such owner.
7.5 Other Transfers Void. Any Transfer made in violation of the provisions
of this Article VII or of Article VIII shall be null and void and shall not bind
the Company or any Member.
7.6 No Release. In the event of any such transfer by a Member in
compliance with the provisions of this Article VII, the transferor shall
continue to be obligated under this Agreement for any failure of the transferee
to perform any duty or obligation under this Agreement or otherwise to violate
the terms of this Agreement.
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Representations of the Members. Each Member severally represents and
warrants that it (i) is an Accredited Investor (as such term is defined in Rule
501 promulgated under the Securities Act of 1933, as amended), (ii) is acquiring
its Company Interest for investment purposes only (iii) has complied with all
applicable Federal and state securities laws in connection with the issuance of
its equity interests, except to the extent that such failure does not have a
material adverse effect on such Member; (iv) has received copies of all such
documents as it deems advisable in making his decision to invest in the Company
and has reviewed and understands such agreements and (v) has had a reasonable
opportunity to ask questions of and receive answers from a person or persons
acting on behalf of the Company, and all such questions have been answered to
the reasonable satisfaction of the Member.
8.2 Tax Identification Number. Each Member's true and correct social
security or tax identification number, as the case may be, is set forth below
such Member's name on Schedule 1 hereto.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND TERMINATION
9.1 Events of Dissolution. The Company shall be dissolved upon the
happening of any of the following events:
(a) The disposition of all or substantially all of the assets of the
Company;
(b) The unanimous vote of the Members to dissolve the Company;
(c) The occurrence of any event under the Company Law that
terminates the continued membership of a Member in the Company;
(d) The entry of a decree of judicial dissolution under Section 702
of the Company Law.
Dissolution of the Company shall be effective on the day the event occurs
giving rise to the dissolution, but the Company shall not terminate until the
Certificate of Formation of the Company have been canceled and the assets of the
Company have been distributed as provided herein.
9.2 Limited Return of Capital Contributions Upon Dissolution. Each Member
shall look solely to the assets of the Company for all distributions with
respect to the Company and its Capital Contribution, and shall have no recourse
therefor (upon dissolution or otherwise) against any Member. Notwithstanding the
dissolution of the Company, the business of the Company and the affairs of the
Members, as such, shall continue to be governed by this Agreement until
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termination of the Company, as provided in this Agreement. Upon dissolution of
the Company, the Administrative Manager, or a liquidator (who may be a Member)
appointed by the Administrative Manager shall liquidate the assets of the
Company, apply and distribute the proceeds thereof as contemplated by this
agreement and cause the cancellation of the Company's Certificate of Formation.
9.3 Distributions Upon Liquidation. (a) Upon dissolution of the Company,
the Administrative Manager or a liquidator appointed pursuant to Section 9.2,
shall liquidate the assets of the Company as promptly as is consistent with
obtaining the fair value thereof, and apply and distribute the proceeds thereof:
(i) First, to creditors in the order of priority provided by law;
(ii) Second, to the establishment of any reserves for contingencies
which the Administrative Manager (or liquidator) may consider necessary;
and
(iii) The balance, if any, to the Members in the manner provided in
Section 5.1 hereof, provided that no Member shall be distributed any
amount in excess of such Member's positive Capital Account balance, and
any excess shall instead be distributed to the Members with positive
Capital Account balances, in proportion to such positive Capital Account
balances.
(b) Notwithstanding the foregoing, in the event the Administrative
Manager (or liquidator) shall determine that an immediate sale of part or all of
the Company assets would cause undue loss to the Members, the Administrative
Manager (or liquidator), in order to avoid such loss, may, after giving notice
to all the Members, to the extent not then prohibited by the laws, including the
Company Law, of any jurisdiction in which the Company is then formed or
qualified and applicable in the circumstances, defer liquidation of and withhold
from distribution for a reasonable time any assets of the Company except those
necessary to satisfy the Company's debts and obligations.
(c) After the proceeds of the liquidation of the assets of the
Company have been distributed (which shall occur as soon as practical), the
Administrative Manager (or liquidator) shall cause the Certificate of Formation
of the Company to be canceled.
9.4 Final Accounting. Upon the dissolution of the Company a proper
accounting shall be made by the Company's independent public accountants from
the date of the last previous accounting to the date of dissolution.
ARTICLE X
LIABILITY, EXCULPATION
AND INDEMNIFICATION
10.1 Liability. (a) Except as otherwise provided by the Company Law, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
15
Company, and no liabilities of the Company, and no Covered Person shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Covered Person.
(b) Except as otherwise expressly required by law, a Member, in its
capacity as Member, shall have no liability in excess of (i) the amount of its
Capital Contributions, (ii) its share of any assets and undistributed Profit of
the Company, (iii) its obligation to make other payments expressly provided for
in this Agreement, and (iv) the amount of any distributions wrongfully
distributed to it.
10.2 Indemnification. 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
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 a breach of this
Agreement or the gross negligence or willful misconduct by such Covered Person
with respect to such acts or omissions; provided, however, that any indemnity
under this Section 10.2 shall be provided out of and to the extent of Company
assets only, and no Covered Person shall have any personal liability on account
thereof. No Covered Person may settle a third party claim without the consent of
all Members.
10.3 Expenses. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person in 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, 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 Section 10.2 hereof.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. Any notices, elections or demands permitted or required to
be made under this Agreement shall be in writing, signed by the Member giving
such notice, election or demand and shall be deemed to have been given (i) when
personally delivered with signed delivery receipt obtained, (ii) when
transmitted by facsimile machine with printed confirmation of successful
transmission to the appropriate facsimile number of the address listed below
being obtained by the sender from the sender's facsimile machine, or (iii) three
business days after such notice has been deposited in the United States first
class mail if sent postage prepaid by registered or certified mail, return
receipt requested, in each case addressed to such Member at the address set
forth on the books and records of the Company. A Member may change the address
to which notices shall be sent by written notice to all Members (said change of
addresses to be effective upon receipt by all Members).
11.2 Successors and Assigns. Subject to the restrictions on transfer set
forth in this Agreement, this Agreement, and each provision of this Agreement,
shall be binding upon and shall inure to the benefit of the Members, their
16
respective successors, successors-in-title, heirs and permitted assigns, and
each successor-in-interest to any Member, whether such successor acquires such
interest by way of gift, purchase, foreclosure or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
11.3 Amendments. This Agreement may be amended only by a written document
approved by and duly executed by all of the Members.
11.4 Partition. No Member or any successor-in-interest to any Member shall
have the right while this Agreement remains in effect to have any Company assets
partitioned, and each Member, on behalf of itself, its successors,
representatives, heirs and assigns, hereby waives any such right. It is the
intention of the Members that during the term of this Agreement the rights of
the Members and their successors-in-interest, as among themselves, shall be
governed by the terms of this Agreement, and that the rights of any Member or
successor-in-interest to assign, transfer, sell or otherwise dispose of any
interest in the Company shall be subject to the limitations and restrictions of
this Agreement.
11.5 No Waiver. The failure of any Member to insist upon strict
performance of a covenant under this Agreement or of any obligation under this
Agreement, irrespective of the length of time for which such failure continues,
shall not be a waiver of that Member's right to demand strict compliance in the
future. No consent or waiver, express or implied, to or of any breach or default
in the performance of any obligation under this Agreement shall constitute a
consent or waiver to or of any other breach or default in the performance of the
same or any other obligation under this Agreement. No waiver or consent shall be
effective unless in writing.
11.6 Entire Agreement. This Agreement constitutes the full and complete
agreement of the parties to this Agreement with respect to the subject matter of
this Agreement.
11.7 Captions. The titles or captions of Articles or Sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
are not a part of this Agreement, and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision of this
Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall for all purposes constitute one
agreement, binding on all the Members, notwithstanding that all Members have not
signed the same counterpart.
11.9 Separability. In case any of the provisions contained in this
Agreement or any application of any of those provisions shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement and other
applications of those provisions shall not in any way be affected or impaired
thereby.
11.10 Applicable Law. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by and interpreted, construed and
enforced in accordance with the law of the State of Delaware applicable to
agreements made and to be performed in the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written.
WRT REALTY L.P.
By: Winthrop Realty Trust
General Partner
By _____________________________
Xxxxx Xxxxxxxxx
President
THE LEXINGTON MASTER LIMITED PARTNERSHIP
By: Lex GP-1 Trust
General Partner
By _____________________________
WRP MANAGEMENT LLC
By: FUR Holdings LLC
Administrative Manager
By: WEM-FUR Investors LLC
Managing Member
By ___________________________
Xxxxxxx X. Xxxxxx
Managing Member
