AGREEMENT AMONG MEMBERS
THIS AGREEMENT AMONG MEMBERS (the "Agreement") is made as of April 10,
1998, by and among Blackacre Capital Group LLC, a Delaware limited liability
company ("Blackacre"), P.N.M. Capital LLC, a Delaware limited liability
company ("PNM"), Pem Mil Management LLC, a Delaware limited liability company
("Pem Mil"), and DVL, Inc., a Delaware corporation ("DVL").
WITNESSETH:
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WHEREAS, DVL is the general partner of those real estate limited
partnerships listed on Schedule 1 hereto (the "DVL Partnerships");
WHEREAS, Blackacre, PNM, Pem Mil and DVL desire to (i) acquire limited
partnership interests in, make loans to, acquire loans (wrap or otherwise)
owed by, and otherwise enter into transactions involving, the DVL
Partnerships and/or their assets and (ii) acquire limited partnership
interests, make investments in properties, or acquire loans (wrap or
otherwise), held by DVL (each, a "Transaction");
WHEREAS, Blackacre, PNM, Pem Mil and DVL desire to provide for certain
rights with respect to their interests in the Transactions;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
following respective meanings:
1.1 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 10% 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.
1.2 CLASS A PARTICIPANTS: Blackacre and PNM, together with their
permitted successors and assigns.
1.3 CLASS B PARTICIPANT: DVL and Pem Mil, together with their permitted
successors and assigns.
1.4 DVL PARTNERSHIPS: Those Partnerships listed on Schedule 1 hereto.
1.5 FEE PRIORITY RETURN: As of any date, the Unreturned Capital
Contribution of a Participant or its Affiliate in a particular Investment
Entity multiplied by 12% per annum (calculated on a cumulative, compounded
annual basis on the Unreturned Capital Contribution of such Participant and
its Affiliate in such Investment Entity, as adjusted from time to time, from
the date capital contributions are received by the Investment Entity to the
date of payment).
1.6 FEE REPAYMENT: The point in time as of which the Class A
Participants and their Affiliates, as the case may be, shall have received
aggregate distributions from the applicable Investment Entity equal to their
capital contributions in such Investment Entity and the Fee Priority Return
for such Investment Entity.
1.7 FIRST PRIORITY RETURN: As of any date, the Unreturned Capital
Contribution of a Participant or its Affiliate in a particular Investment
Entity multiplied by 12.75% per annum (calculated on a cumulative, compounded
annual basis on the Unreturned Capital Contribution of such Participant or
its Affiliate in such Investment Entity, as adjusted from time to time, from
the date capital contributions are received by such Investment Entity to the
date of payment).
1.8 FIRST REPAYMENT: The point in time as of which the Class A
Participants or their Affiliates, as the case may be, shall have received
aggregate distributions from the applicable Investment Entity equal to their
capital contributions in such Investment Entity and the First Priority Return
for such Investment Entity.
1.9 INVESTMENT ENTITIES: Those entities which are from time to time
formed by the Participants to enter into Transactions, including, without
limitation, Xxxxxxx Capital LLC.
1.10 MAXIMUM CAPITAL CONTRIBUTION: $20,000,000
1.11 PARTICIPANTS: The Class A and Class B Participants.
1.12 PERSON: An individual, trust, estate, partnership, joint venture,
association, company, corporation, limited liability company or other entity.
1.13 SECOND PRIORITY RETURN: As of any date, the Unreturned Capital
Contribution of a Participant or its Affiliate in a particular Investment
Entity multiplied by 16% per annum (calculated on a cumulative, compounded
annual basis on the Unreturned Capital Contribution of such Participant or
its Affiliate in such Investment Entity, as adjusted from time to time, from
the date capital contributions are received by such Investment Entity to the
date of payment).
1.14 SECOND REPAYMENT: The point in time as of which the Class A
Participants or their Affiliates, as the case may be, shall have received
aggregate distributions from the applicable Investment Entity equal to their
capital contributions in such Investment Entity and the Second Priority
Return for such Investment Entity.
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1.15 THIRD PRIORITY RETURN: As of any date, the Unreturned Capital
Contribution of a Participant or its Affiliate in a particular Investment
Entity multiplied by 20% per annum (calculated on a cumulative, compounded
annual basis on the Unreturned Capital Contribution of such Participant or
its Affiliate in such Investment Entity, as adjusted from time to time, from
the date capital contributions are received by such Investment Entity to the
date of payment).
1.16 THIRD REPAYMENT: The point in time as of which the Class A
Participants or their Affiliates, as the case may be, shall have received
aggregate distributions from the applicable Investment Entity equal to their
capital contributions in such Investment Entity and the Third Priority Return
for such Investment Entity.
1.17 TRANSACTION: Shall have the meaning set forth in the second
WHEREAS clause.
1.18 UNRETURNED CAPITAL CONTRIBUTION: As of any date, the capital
contributions made by a Participant and its Affiliates on or before such date
in the applicable Investment Entity, reduced (but not below zero) by the
amount by which distributions received by such Participant and its Affiliates
on or before the date of determination from such Investment Entity exceed
either (i) in determining Fee Priority Return, 12% per annum (calculated on
a cumulative, compounded annual basis) on the unreturned capital contribution
of such Participant or its Affiliate in such Investment Entity, as adjusted
from time to time pursuant hereto, (ii) in determining First Priority Return,
12.75% per annum (calculated on a cumulative, compounded annual basis) on the
unreturned capital contribution of such Participant or its Affiliate in such
Investment Entity, as adjusted from time to time pursuant hereto, (iii) in
determining Second Priority Return, 16% per annum (calculated on a
cumulative, compounded annual basis) on the then unreturned capital
contribution of such Participant or its Affiliate in such Investment Entity,
as adjusted from time to time pursuant hereto, or (iv) in determining the
Third Priority Return, 20% per annum (calculated on a cumulative, compounded
annual basis) on the then unreturned capital contribution of such Participant
or its Affiliate in such Investment Entity, as adjusted from time to time
pursuant hereto. It being contemplated hereby that the capital contribution
of a Participant and its Affiliate will be reduced at such times as the
aggregate distributions made by the Investment Entity up to the date of
determination exceeds the applicable priority return on such capital
contribution, as reduced hereby. For example, if a Participant's capital
contribution to an Investment Entity was $100,000, and such Investment Entity
made a distribution to such Participant of $18,000 exactly one year after the
capital contribution date, for purposes of determining (i) Fee Priority
Return from and after such date, the Unreturned Capital Contribution would be
$94,000 ([$100,000 + ($100,000 x 12%)] - $18,000); (ii) First Priority Return
from and after such date, the Unreturned Capital Contribution would be
$94,750 ([$100,000 + ($100,000 x 12.75%)] - $18,000); (iii) Second Priority
Return from and after such date, the Unreturned Capital Contribution would be
$98,000 ([$100,000 + ($100,000 x 16%)] - $18,000); and (iv) Third Priority
Return from and after such date, the Unreturned Capital Contribution would be
$100,000 as the distribution amount ($18,000) is not greater than the Third
Priority Return ($20,000).
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ARTICLE 2
INVESTMENTS
Section 2.1 DVL OPPORTUNITIES. (a) Until the earlier of (i) the date
on which the Maximum Capital Contribution has been invested in Investment
Entities or (ii) three years from the date hereof, the Participants shall not
enter into any Transaction except as provided by this Article 2.
(b) Pem Mil and/or, except as provided herein, DVL shall from time
to time present to the Participants various Transactions for their review.
DVL shall have the right to proceed with a Transaction in its individual
capacity by providing written notice to the Class A Participants within ten
business days of the date such Transaction is proposed that it is electing to
proceed with the Transaction. Notwithstanding anything to the contrary set
forth herein, DVL shall only be permitted to individually proceed with a
Transaction if it provides all of the capital for such Transaction from its
reserves or cash available from operations. If DVL is required to raise
capital to proceed with the Transaction, either by obtaining a loan, selling
additional shares of stock or otherwise, then the provisions of Section
2.1(c) shall control. DVL shall not be required to present any transaction
to the Class A Participants if DVL individually proceeds with such
Transaction as permitted by this Section 2.1.
(c) If DVL elects not to proceed with the Transaction or if DVL
requires additional funding for the Transaction, the Class A Participants
shall have the right to proceed with the Transaction on the terms and
conditions set forth in this Agreement. In such an event, the Class A
Participants shall, within ten business days following DVL's determination
not to proceed with the Transaction, elect whether or not to enter into a
Transaction. If both Class A Participants elect to proceed with the
Transaction, the Participants shall form an Investment Entity, or use an
existing Investment Entity, to consummate such Transaction and the
Participants shall use their best efforts to consummate such Transaction.
(d) If a Class A Participant elects not to participate in a
Transaction or, if a Class A Participant fails to timely make the required
capital contribution to the applicable Investment Entity necessary to
consummate the Transaction (the "Rejecting Participant"), the Class A
Participant that voted in favor of such Transaction or who timely made the
necessary capital contribution (the "Accepting Participant") and the Class B
Participant shall have the right, either jointly or together with any other
Person (other than the Rejecting Participant), for a period of three months
from the date on which the election was made not to proceed with the
Transaction or the failure by the Rejecting Participant to make the necessary
capital contribution, to enter into such Transaction (the "Rejected
Transaction") on terms which are not substantially different from those set
forth in the original proposal voted on by the Participants. In the event
that the Accepting Participant enters into such Rejected Transaction, neither
the Rejecting Participant nor any other Person shall have any rights with
respect to the Rejected Transaction. If the Accepting Participant shall not
consummate the Rejected Transaction in the aforementioned three month time
period, any subsequent transaction which is similar in form to the Rejected
Transaction shall be subject to the provisions of this Article 2 as if no
prior vote with respect to the Rejected Transaction had occurred.
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Section 2.2 UNAUTHORIZED TRANSACTIONS. If a Participant enters into a
Transaction in violation of this Article 2, such Participant shall, or shall
cause its Affiliate to, hold in trust for the benefit of the Participants all
assets acquired pursuant to such Transaction as if the Participants had
formed an Investment Entity, and shall take all steps necessary to transfer
ownership of such assets to an Investment Entity.
Section 2.3 INVESTMENT ENTITIES. Unless otherwise agreed, each
Investment Entity shall be a limited liability company, the operating
agreement for which shall be in substantially the form of Exhibit A attached
hereto with such changes as may be necessary for the specific Transaction.
The Participants agree that (i) all capital contributions made to an
Investment Entity shall be allocated 90% to Blackacre and 10% to PNM, or such
other proportion as the Class A Participants may agree, (ii) Pem Mil or its
Affiliate shall be the managing member or general partner of the Investment
Entity and (iii) profit and loss for each Investment Entity shall be
allocated, and distributions shall be paid, by each Investment Entity as
follows:
(1) First, in accordance with the Investment Entity's members
respective capital accounts until the First Repayment;
(2) Second, (a) to Blackacre, a percentage equal to (i) Blackacre's
capital contribution to the Investment Entity divided by the aggregate
capital contributions made by all Participants or their Affiliates to such
Investment Entity minus (ii) 10%, (b) to PNM, a percentage equal to PNM's
capital contribution to the Investment Entity divided by the aggregate
capital contributions made by all Participants or their Affiliates to such
Investment Entity, (c) to Pem Mil, 3.33% and (d) to DVL, 6.67% until the
Second Repayment;
(3) Third, (a) to Blackacre, a percentage equal to (i) Blackacre's
capital contribution to the Investment Entity divided by the aggregate
capital contributions made by all Participants or their Affiliates to such
Investment Entity minus (ii) 17.5%, (b) to PNM, a percentage equal to PNM's
capital contribution to the Investment Entity divided by the aggregate
capital contributions made by all Participants or their Affiliates to such
Investment Entity, (c) to Pem Mil, 5.83% and (d) to DVL, 11.67% until the
Third Payment; and
(4) Thereafter, (a) to Blackacre, a percentage equal to (i)
Blackacre's capital contribution to the Investment Entity divided by the
aggregate capital contributions made by all Participants or their Affiliates
to such Investment Entity minus (ii) 30%, (b) to PNM, a percentage equal to
PNM's capital contribution to the Investment Entity divided by the aggregate
capital contributions made by all Participants or their Affiliates to such
Investment Entity, (c) to Pem Mil, 10% and (d) to DVL, 20%.
Section 2.4 MAXIMUM CAPITAL CONTRIBUTIONS. Unless otherwise agreed by
the Class A Participants, in no event shall a Participant or its Affiliates
be required to make, nor shall they be permitted to make, a capital
contribution to an Investment Entity if such capital contribution, when added
to all other capital contributions made by all Participants to Investment
Entities, would exceed the Maximum Capital Contribution.
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ARTICLE 3
MANAGING MEMBER'S COMPENSATION
Section 3.1 SERVICES TO BE PROVIDED BY MANAGING MEMBER. Pem Mil shall
be the managing member of each Investment Entity to perform such duties and
services and have such rights and obligations as are customary for a managing
member of a limited liability company, including, without limitation, the
rights and obligations set forth in the Investment Entity's organizational
documents.
Section 3.2 COMPENSATION. For acting as the managing member of the
Investment Entities and for providing the services provided for herein and as
contemplated by the organizational documents of the Investment Entities, the
Participants shall cause the Investment Entities to pay to Pem Mil, in
addition to its allocable share of the Investment Entity's profits, losses
and distributions, an annual fee (the "Fee") equal to 2% of the total capital
contributions made from time to time by the Participants and their Affiliates
to Investment Entities; provided, however, in no event shall the Fee be, in
the aggregate for all Investment Entities, less than $24,000 or greater than
$100,000. The Fee shall be payable monthly in advance during the term of
this Agreement, the first payment of which shall be due on May 1, 1998.
Unless otherwise agreed, the Fee shall be allocated pro-rata among the
Investment Entities based on the amount of capital invested in such
Investment Entity and the total amount invested in all Investment Entities.
Section 3.3 FEE REIMBURSEMENT. Pem Mil agrees that in the event that
upon the liquidation of an Investment Entity the Class A Participants shall
not have received distributions from such Investment Entity in an amount at
least equal to Fee Repayment, Pem Mil shall reimburse such Investment Entity
an amount equal to the lesser of (i) the difference between (a) the amount
necessary to be distributed to the Class A Participants so that Fee Repayment
shall be reached determined as of the date of liquidation and (b) the
aggregate amount actually distributed to the Class A Participants by such
Investment Entity and (ii) the Fee actually paid to Pem Mil by such
Investment Entity.
ARTICLE 4
MISCELLANEOUS
Section 4.1 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 given either by
personal delivery sent postage prepaid by registered or certified mail,
return receipt requested or sent by overnight carrier, and shall be deemed to
have been given when evidence of receipt is received by the sender in each
case addressed as follows:
if to PNM:
c/o Millennium Capital Management LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxxxxx
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with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
if to Blackacre:
c/o Blackacre Capital Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
with a copy to:
Xxx Xxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to Pem Mil:
c/o Pembroke Companies
1325 Avenue of the Americas, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
if to DVL:
DVL, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
A party hereto may change the address to which notices shall be sent by
written notice to all parties hereto (said change of addresses to be
effective upon receipt by all parties hereto).
Section 4.2 SUCCESSORS AND ASSIGNS. This Agreement, and each provision
of this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective successors, successors-in-title, heirs
and permitted assigns, and each successor-in-interest to any party, 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.
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Section 4.3 NO MODIFICATION EXCEPT IN WRITING. This Agreement shall
not be changed, modified, or amended except by a writing signed by all
parties hereto.
Section 4.4 FURTHER ASSURANCES. Each of the parties hereto hereby
agrees to execute and deliver all such further documents and take all such
further actions as shall be necessary, desirable or expedient to consummate
the transactions contemplated hereby.
Section 4.5 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.
Section 4.6 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.
Section 4.7 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.
Section 4.8 SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected unless the
provision held invalid shall substantially impair the benefits of the
remaining portions of this Agreement.
Section 4.9 GENDER. Words used herein, regardless of the gender
specifically used, shall be deemed and construed to include any other gender,
masculine, feminine or neuter, as the context shall require.
Section 4.10 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.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
P.N.M. CAPITAL LLC
By: Millennium Capital Management LLC,
a Member
By: /s/ XXX XXXXXXXXX
_________________________________
Xxx Xxxxxxxxx
President
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BLACKACRE CAPITAL GROUP LLC
By: Blackacre Capital Partners, L.P.,
Managing Member
By: Old Stand Real Estate, LLC,
General Partner
By:
_________________________________
A Member
DVL, INC.
By: /s/ XXXXXX XXXXXXX
_________________________________
Xxxxxx Xxxxxxx
Vice President
PEM MIL MANAGEMENT LLC
By: Pembroke Companies Inc., a member
By: /s/ XXXXXXXX X. XXXXX
_________________________________
Xxxxxxxx X. Xxxxx
President
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