LIMITED LIABILITY COMPANY AGREEMENT OF
OF
_________________________________
This
Limited Liability Company Agreement (together with the schedules attached
hereto, this "Agreement") of
_____________________ (the "Company"), is entered
into by RESOURCE REAL ESTATE INVESTORS 6, L.P., a Delaware limited partnership,
as the initial equity member (the "Member") and
_____________________, a Delaware limited liability company, as the Manager and
the Special Member (as defined on Schedule A hereto). Capitalized
terms used and not otherwise defined herein have the meanings set forth on Schedule A
hereto.
The
Member, by execution of this Agreement, hereby forms the Company as a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del. C. § 18-101
et seq.), as amended
from time to time (the "Act"), and this
Agreement, and the Member, the Manager and Special Member hereby agree as
follows:
Section
1. Name.
The name
of the limited liability company formed hereby is
_____________________.
Section
2. Principal Business
Office.
The
principal business office of the Company shall be located at Xxx Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxx Xxxxxxxxx Center, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or
such other location as may hereafter be determined by the Member.
Section
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is 000
X. Xxxxxx Xxxxxx, Xxxxx 000, in the City of Wilmington, County of Xxx Xxxxxx,
Xxxxxxxx 00000.
Section
4. Registered
Agent.
The name
and address of the registered agent of the Company for service of process on the
Company in the State of Delaware is Xxxxxx Xxxxx, 000 X. Xxxxxx Xxxxxx, Xxxxx
000, in the City of Wilmington, County of Xxx Xxxxxx,
Xxxxxxxx 00000.
Section
5. Members.
(a) The
mailing address of the Member is set forth on Schedule B attached
hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this
Agreement.
(b) Subject
to Section
9(f), the Member may act by written consent.
(c) Upon the
occurrence of any event that causes the Member to cease to be a member of the
Company (other than (i) upon an assignment by the Member of all of its limited
liability company interest in the Company and the admission of the transferee
pursuant to Sections
21 and 23, or (ii) the resignation of the Member and the admission of an
additional member of the Company pursuant to Sections 22 and 23),
the Manager shall, without any action of
Section
6. Certificates.
Xxxxx
Xxxxxxxx is hereby designated as an "authorized person" within the meaning of
the Act, and has executed, delivered and filed the Certificate of Formation of
the Company with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Formation with the
Secretary of State of the State of Delaware, her powers as an "authorized
person" ceased, and the Manager thereupon became the designated "authorized
person" and shall continue as the designated "authorized person" within the
meaning of the Act. The Manager shall execute, deliver and file any
other certificates (and any amendments and/or restatements thereof) necessary
for the Company to qualify to do business in Texas and in any other jurisdiction
in which the Company may wish to conduct business.
The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the
Act.
Section
7. Purposes.
(a) The
purpose to be conducted or promoted by the Company is to engage in the following
activities:
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(i)
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to
acquire and hold title to the real property and improvements located
thereon situate at _______________________________, commonly known as the
_____________________;
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(ii)
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to
engage in any lawful act or activity and to exercise any powers permitted
to limited liability companies organized under the laws of the State of
Delaware that are related or incidental to and necessary, convenient or
advisable for the accomplishment of the above-mentioned
purposes.
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(b) The
Company, the Member and/or the Manager may, on behalf of the Company, enter
into, execute, deliver and perform the Company’s obligations under the Loan
Documents and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of the Member, Manager or other Person notwithstanding any other
provision of this Agreement, the Act or applicable law, rule or
regulation. The foregoing authorization shall not be deemed a
restriction on the powers of the Member or the Manager to enter into other
agreements on behalf of the Company.
Section
8. Powers.
Subject
to Section
9(f), the Company, and the Manager on behalf of the Company, (i) shall
have and exercise all powers necessary, convenient or incidental to accomplish
its purposes as set forth in Section 7 and (ii)
shall have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
Section
9. Management.
(a) Management by
Manager. The management of the business and affairs of the
Company shall be the sole and complete responsibility of the
Manager. The Members, as such, shall not take part in, or interfere
in any manner with, the management, conduct or control of the business and
affairs of the Company, and shall not have any right or authority to act for or
bind the Company. The Company may act only by actions taken by or
under the direction of the Manager in accordance with this
Agreement.
(b) Manager. _____________________, a
Delaware limited liability company, is hereby designated as the Manager of the
Company. The Manager, and any additional or substitute manager of the
Company, may not be an individual and shall at all times have as its sole
purpose to act as the Manager and Special Member of the Company, and shall be
engaged in no other business or have any other purpose.
(c) Powers of the
Manager. Subject to Section 9(f), the
Manager shall have the power to do any and all acts necessary or convenient to
or for the furtherance of the purposes described herein, including all powers,
statutory or otherwise, possessed by the Manager under the laws of the State of
Delaware. The Manager shall have the authority to bind the
Company.
(d) Intentionally
Omitted.
(e) Limitation of
Liability. To the fullest extent permitted by law, the Manager
shall not be personally liable, as such, for monetary damages (other than under
criminal statutes and under Federal, state and local laws imposing liability on
managers for the payment of taxes) for any action taken, or any failure to take
any action, unless the person’s conduct constitutes self-dealing, willful
misconduct or recklessness. No amendment or repeal of this Section
shall apply to or have any effect on the liability or alleged liability of any
person who is or was the Manager of the Company for or with respect to any acts
or omissions of the Manager occurring prior to the effective date of such
amendment or repeal. If the Act is amended to permit a Delaware
limited liability company to provide greater protection from personal liability
for its managers than the express terms of this Section provides, then this
Section shall be construed to provide for such greater protection.
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(f) Limitations on the Company's
Activities.
The Manager shall cause the
Company to do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Manager shall determine
that the preservation thereof is no longer desirable for the conduct of its
business and that the loss thereof is not disadvantageous in any material
respect to the Company. The Manager also shall cause the
Company to and the Company shall:
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(i)
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maintain
its own separate books, records and bank
accounts;
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(ii)
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at
all times hold itself out to the public and all other Persons as a legal
entity separate from the Member and any other
Person;
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(iii)
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file
its own tax returns, if any, as may be required under applicable law, to
the extent (1) not part of a consolidated group filing a consolidated
return or returns or (2) not treated as a division for tax purposes of
another taxpayer, and pay any taxes so required to be paid under
applicable law;
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(iv)
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except
as contemplated by the Loan Documents, not commingle its assets with
assets of any other Person;
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(v)
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conduct
its business in its own name and strictly comply with all organizational
formalities to maintain its separate
existence;
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(vi)
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maintain
separate financial statements;
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(vii)
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pay
its own liabilities only out of its own
funds;
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(viii)
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maintain
an arm's length relationship with its Affiliates and the
Member;
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(ix)
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pay
the salaries of its own employees, if
any;
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(x)
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not
hold out its credit or assets as being available to satisfy the
obligations of others;
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(xi)
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allocate
fairly and reasonably any overhead for shared expenses, including, without
limitation, shared office space;
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(xii)
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use
separate stationery, invoices and
checks;
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(xiii)
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except
as contemplated by the Loan Documents, not guarantee or pledge its assets
for the benefit of any other
Person;
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(xiv)
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correct
any known misunderstanding regarding its separate identity and not
identify itself as a department or division of another
Person;
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(xv)
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be
solvent and maintain adequate capital and a sufficient number of employees
in light of its contemplated business purpose, transactions and
liabilities;
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(xvi)
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observe
all Delaware limited liability company
formalities;
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(xvii)
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not
acquire any obligation or securities of the Member or of any Affiliate of
the Company;
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(xviii)
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cause
the Manager, agents and other representatives of the Company to act at all
times with respect to the Company consistently and in furtherance of the
foregoing and in the best interests of the
Company;
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(xix)
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not
enter into or be a party to any transaction with 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
arm’s length transaction with an unrelated third party;
and
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(xx)
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maintain its assets in such a manner that is not
costly or difficult to segregate or identify its individual assets from
those of any Person.
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Failure
of the Company, or the Member or Manager on behalf of the
Company, to comply with any of the foregoing covenants or any other covenants
contained in this Agreement shall not affect the status of the Company as a
separate legal entity or the limited liability of the Member or Manager. The
foregoing notwithstanding, none of the terms or provisions of this Section 9(f) shall
cause, require or be construed to cause or require the Member to make any
additional capital contributions to the Company.
Section
10. Intentionally
Omitted.
Section
11. Intentionally
Omitted.
Section
12. Limited
Liability.
Except as
otherwise expressly provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be the
debts, obligations and liabilities solely of the Company, and none of the
Member, the Special Member or Manager shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being a member,
Special Member or manager of the Company.
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Section
13. Capital
Contributions.
The
Member has contributed to the Company cash in the amount listed on Schedule B attached
hereto. In accordance with Section 5(c), the
Special Member shall not be required to make any capital contributions to the
Company.
Section
14. Additional
Contributions.
The
Member is not required to make any additional capital contribution to the
Company. However, the Member may make additional capital contributions to the
Company at any time upon the written consent of such Member. To the
extent that the Member makes an additional capital contribution to the Company,
the Member shall revise Schedule B of this
Agreement. The provisions of this Agreement, including this Section 14, are
intended to benefit the Member and the Special Member and, to the fullest extent
permitted by law, shall not be construed as conferring any benefit upon any
creditor of the Company (and no such creditor of the Company shall be a
third-party beneficiary of this Agreement) and the Member and the Special Member
shall not have any duty or obligation to any creditor of the Company to make any
contribution to the Company or to issue any call for capital pursuant to this
Agreement.
Section
15. Allocation of Profits and
Losses.
The
Company's profits and losses shall be allocated to the Member.
Section
16. Distributions.
Distributions
shall be made to the Member at the times and in the aggregate amounts determined
by the Manager. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not be required to make a
distribution to the Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or any other applicable
law.
Section
17. Books and
Records.
The
Manager shall keep, or cause to be kept, complete and accurate books of account
and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Manager. The Member
and its duly authorized representatives shall have the right to examine the
Company books, records and documents during normal business
hours. The Company, and the Manager on behalf of the Company, shall
not have the right to keep confidential from the Member any information that the
Manager would otherwise be permitted to keep confidential from the Member
pursuant to Section 18-305(c) of the Act. The Company's books of
account shall be kept using the method of accounting determined by the
Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
Section
18. Reports.
(a) Within 60
days after the end of each fiscal quarter, the Manager shall cause to be
prepared an unaudited report setting forth as of the end of such fiscal
quarter:
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(i)
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unless
such quarter is the last fiscal quarter, a balance sheet of the Company;
and
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(ii)
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unless
such quarter is the last fiscal quarter, an income statement of the
Company for such fiscal quarter.
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(b) The
Manager shall use diligent efforts to cause to be prepared and mailed to the
Member, within 90 days after the end of each fiscal year, an audited or
unaudited report setting forth as of the end of such fiscal year:
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(i)
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a
balance sheet of the Company;
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(ii)
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an
income statement of the Company for such fiscal year;
and
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(iii)
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a
statement of the Member's capital
account.
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(c) The
Manager shall, after the end of each fiscal year, use reasonable efforts to
cause the Company's independent accountants, if any, to prepare and transmit to
the Member as promptly as possible any such tax information as may be reasonably
necessary to enable the Member to prepare its federal, state and local income
tax returns relating to such fiscal year.
Section
19. Other
Business.
The
Member, the Special Member and any Affiliate of the Member or the Special Member
may engage in or possess an interest in other business ventures (unconnected
with the Company) of every kind and description, independently or with others
notwithstanding any provision to the contrary at law or in
equity. The Company shall not have any rights in or to such
independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section
20. Exculpation and
Indemnification.
(a) None of
the Member, the Special Member or any Manager, employee or agent of the Company
or any employee, representative, agent or Affiliate of the Member, Manager or
the Special Member (collectively, the "Covered Persons") shall, to
the fullest extent permitted by law, be liable to the Company or any other
Person that is a party to or is otherwise bound by this Agreement for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
(b) To the
fullest extent permitted by applicable law, a Covered Person shall be entitled
to indemnification from the Company for any loss, damage or claim incurred by
such Covered Person by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Section 20 by the
Company shall be provided out of and to the extent of Company assets only, and
the Member and the Special Member shall not have personal liability on account
thereof.
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(c) To the
fullest extent permitted by applicable law, expenses (including legal fees)
incurred by a Covered Person defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person is not entitled to
be indemnified as authorized in this Section
20.
(d) A Covered
Person shall be fully protected in relying in good faith upon the records of the
Company and upon such information, opinions, reports or statements presented to
the Company by any Person as to matters the Covered Person reasonably believes
are within such other Person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, or any other facts pertinent to the existence and amount of
assets from which distributions to the Member might properly be
paid.
(e) To the
extent that, at law or in equity, a Covered Person has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other Covered Person, a Covered Person acting under this Agreement shall not be
liable to the Company or to any other Covered Person for its good faith reliance
on the provisions of this Agreement or any approval or authorization granted by
the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Member to replace such other duties and liabilities of such
Covered Person.
(f) The
foregoing provisions of this Section 20 shall
survive any termination of this Agreement.
Section
21. Assignments.
The
Member may assign in whole or in part its limited liability company interest in
the Company; provided, that for so long as any Obligation is outstanding, the
Member may not assign its limited liability company interest in the Company
except as permitted by the Loan Documents. Subject to Section 23, if the
Member transfers all of its limited liability company interest in the Company
pursuant to this Section 21, the
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such admission, the
transferor Member shall cease to be a member of the
Company. Notwithstanding anything in this Agreement to the contrary,
any successor to the Member by merger or consolidation in compliance with the
Loan Documents shall, without further act, be the Member hereunder, and such
merger or consolidation shall not constitute an assignment for purposes of this
Agreement and the Company shall continue without dissolution.
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Section
22. Resignation.
So long
as any Obligation is outstanding, the Member may not resign, except as permitted
under the Loan Documents and if an additional member is admitted to the Company
pursuant to Section
23. If the Member is permitted to resign pursuant to this
Section 22, an
additional member of the Company shall be admitted to the Company, subject to
Section 23,
upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the
Company.
Section
23. Admission of Additional
Members.
One or
more additional members of the Company may be admitted to the Company with the
written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Obligation remains outstanding, no
additional member may be admitted to the Company other than in accordance with
the Loan Documents.
Section
24. Dissolution.
(a) The
Company shall be dissolved, and its affairs shall be wound up upon the first to
occur of the following: (i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other event which
terminates the continued membership of the last remaining member of the Company
in the Company unless the Company is continued without dissolution in a manner
permitted by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. Upon the occurrence of
any event that causes the last remaining member of the Company to cease to be a
member of the Company or that causes the Member to cease to be a member of the
Company (other than (i) upon an assignment by the Member of all of its limited
liability company interest in the Company and the admission of the transferee
pursuant to Sections
21 and 23, or (ii) the resignation of the Member and the admission of an
additional member of the Company pursuant to Sections 22 and 23),
to the fullest extent permitted by law, the personal representative of such
member is hereby authorized to, and shall, within 90 days after the occurrence
of the event that terminated the continued membership of such member in the
Company, agree in writing (i) to continue the Company and (ii) to the admission
of the personal representative or its nominee or designee, as the case may be,
as a substitute member of the Company, effective as of the occurrence of the
event that terminated the continued membership of the last remaining member of
the Company or the Member in the Company.
(b) Notwithstanding
any other provision of this Agreement, the Bankruptcy of the Member or a Special
Member shall not cause the Member or Special Member, respectively, to cease to
be a member of the Company and upon the occurrence of such an event, the Company
shall continue without dissolution.
(c) Notwithstanding
any other provision of this Agreement, each of the Member and the Special Member
waives any right it might have to agree in writing to dissolve the Company upon
the Bankruptcy of the Member or a Special Member, or the occurrence of an event
that causes the Member or a Special Member to cease to be a member of the
Company.
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(d) In the
event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
(e) The
Company shall terminate when (i) all of the assets of the Company, after payment
of or due provision for all debts, liabilities and obligations of the Company,
shall have been distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been canceled in the
manner required by the Act.
Section
25. Right to Partition; Nature
of Interest.
To the
fullest extent permitted by law, each of the Member and the Special Member shall
have a right or power to cause the Company or any of its assets to be
partitioned, subject to all prohibitions and limitations with respect to such
right contained in any of the Loan Documents. The Member shall not
have any interest in any specific assets of the Company, and the Member shall
not have the status of a creditor with respect to any distribution pursuant to
Section 16
hereof. The interest of the Member in the Company is personal
property.
Section
26. Benefits of Agreement; No
Third-Party Rights.
None of
the provisions of this Agreement shall be for the benefit of or enforceable by
any creditor of the Company or by any creditor of the Member or a Special
Member. Nothing in this Agreement shall be deemed to create any right
in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third Person.
Section
27. Severability of
Provisions.
Each
provision of this Agreement shall be considered severable and if for any reason
any provision or provisions herein are determined to be invalid, unenforceable
or illegal under any existing or future law, such invalidity, unenforceability
or illegality shall not impair the operation of or affect those portions of this
Agreement which are valid, enforceable and legal.
Section
28. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
Section
29. Binding
Agreement.
Notwithstanding
any other provision of this Agreement, the Member agrees that this Agreement
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Manager, in accordance with its
terms.
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Section
30. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware (without regard to conflict of laws principles), all rights and
remedies being governed by said laws.
Section
31. Amendments.
This
Agreement may be modified, altered, supplemented or amended pursuant to a
written agreement executed and delivered by the Member.
Section
32. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original of this Agreement and all of which together shall constitute
one and the same instrument.
Section
33. Notices.
Any
notices required to be delivered hereunder shall be in writing and personally
delivered, mailed or sent by telecopy, electronic mail or other similar form of
rapid transmission, and shall be deemed to have been duly given upon receipt (a)
in the case of the Company, to the Company at its address in Section 2, (b) in the
case of the Member, to the Member at its address as listed on Schedule B attached
hereto and (c) in the case of either of the foregoing, at such other address as
may be designated by written notice to the other party.
Section
34. Effectiveness.
Pursuant
to Section 18-201 (d) of the Act, this Agreement shall be effective as of the
time of the filing of the Certificate of Formation with the Office of the
Delaware Secretary of State on December 10, 2007.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly
executed this Limited Liability Company Agreement as of the ____ day of
February, 2008.
MEMBER:
RESOURCE
REAL ESTATE INVESTORS 6, L.P., a Delaware limited partnership
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By: Resource
Capital Partners, Inc., its general
partner
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By:______________________________
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Name:
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Title:
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MANAGER AND SPECIAL
MEMBER:
_________________________________,
a Delaware limited liability
company
By:__________________________
Name:
Title:
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SCHEDULE
A
Definitions
A. Definitions
When used
in this Agreement, the following terms not otherwise defined herein have the
following meanings:
"Act" has the meaning
set forth in the preamble to this Agreement.
"Affiliate" means,
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with such
Person.
"Agreement" means this
Limited Liability Company Agreement of the Company, together with the schedules
attached hereto, as amended, restated or supplemented or otherwise modified from
time to time.
"Bankruptcy" means,
with respect to any Person, if such Person (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it an order for relief,
in any bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or regulation, (v) files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of this nature,
(vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver
or liquidator of the Person or of all or any substantial part of its properties,
or (vii) if 120 days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment, liquidation or
similar relief under any statute, law or regulation, if the proceeding has not
been dismissed, or if within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of such Person or
of all or any substantial part of its properties, the appointment is not vacated
or stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of "Bankruptcy"
is intended to replace and shall supersede and replace the definition of
"Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the Act.
"Bankruptcy
Action" means to institute
proceedings to have the Company be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against the Company
or file a petition seeking, or consent to, reorganization or relief with respect
to the Company under any applicable federal or state law relating to bankruptcy,
or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a substantial part of
its property, or make any assignment for the benefit of creditors of the
Company, or admit in writing the Company's inability to pay its debts generally
as they become due, or declare or effectuate a moratorium on the payment of any
obligation, or take action in furtherance of any such action.
"Certificate of
Formation" means the Certificate of Formation of the Company filed with
the Secretary of State of the State of Delaware on December 10, 2007, as amended
or amended and restated from time to time.
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"Company" means
_____________________, a Delaware limited liability company.
"Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise. "Controlling" and "Controlled" shall have
correlative meanings. Without limiting the generality of the
foregoing, a Person shall be deemed to Control any other Person in which it
owns, directly or indirectly 10% or more of the ownership
interests.
"Covered Persons" has
the meaning set forth in Section
20(a).
"Lender" means
Grandbridge Real Estate Capital LLC, a North Carolina limited liability company,
and its successors and/or assigns.
"Loan" means that
certain $10,430,000.00 loan from Lender.
"Loan Documents" means
the Multifamily Note, Multifamily Deed of Trust, Assignment of Rents and
Security Agreement and Fixture Filing, Borrower’s Certificate and Agreement,
Replacement Reserve Agreement, Repair Escrow Agreement, Replacement Reserve
Agreement, Repair Agreement, UCC Financing Statements, and all documents and
certificates contemplated thereby or delivered in connection
therewith.
“Manager” means the
Person designated by the Member as the Manager from time to time in accordance
with this Agreement, in its capacity as a manager of the Company. The
Manager is hereby designated as a “manager” within the meaning of Section
18-101(10) of the Act.
"Member" means
Resource Real Estate Investors 6, L.P. as the initial member of the Company, and
includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, the term
"Member" shall not include the Special Member.
"Obligation" shall
mean the indebtedness, liabilities and obligations of the Company under or in
connection with the Loan Documents.
"Person" means any
individual, corporation, partnership, joint venture, limited liability company,
limited liability partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or not a legal
entity, and any governmental authority.
"Special Member"
means, upon such person's admission to the Company as a member of the Company
pursuant to Section
5(c), the Manager of the Company, in such person's capacity as a member
of the Company. A Special Member shall only have the rights and
duties expressly set forth in this Agreement.
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B. Rules of
Construction
Definitions
in this Agreement apply equally to both the singular and plural forms of the
defined terms. The words "include" and "including" shall be deemed to
be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience
only and shall not affect the interpretation of this Agreement. All
Section, paragraph, clause, Exhibit or Schedule references not attributed to a
particular document shall be references to such parts of this
Agreement.
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SCHEDULE
B
Member
|
Name
|
Mailing Address
|
Agreed
Value of
Capital Contribution
|
Membership
Interest
|
|
Resource
Real Estate Investors 6, L.P.
|
000
Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx
Xxxx, XX 00000
|
$______________
|
100%
|
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