EXHIBIT 10.45
FIRST AMENDMENT TO
GL/PHP, LLC LIMITED LIABILITY COMPANY AGREEMENT
This FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT OF GL/PHP, LLC
is made as of August 15, 1997 (this "First Amendment"), by and among G&L Realty
Partnership, L.P., a Delaware limited partnership, as the retiring Manager (the
"Retiring Manager"), G&L Realty Partnership, L.P., a Delaware limited
partnership, as a Member ("G&L Member"), and G&L Management Delaware Corp as a
Member and as the new Manger ("Manager Member" and, together with G&L Member,
collectively called, the "Members"). All capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Original
Agreement, as defined below.
R E C I T A L S:
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GL/PHP, LLC, a Delaware limited liability company (the "Company"), has been
formed and is operating pursuant the GL/PHP, LLC to a Limited Liability Company
Agreement, dated as of February 26, 1997 (the "Original Agreement" and, as
amended by this First Amendment, is hereafter called the "Agreement"), by and
among the Members and the Retiring Manager.
Pursuant to the Redemption Agreement, dated as of the date hereof (the
"Redemption Agreement"), between the Company and PHP Healthcare Corporation, a
Delaware corporation ("PHP"), the Company has redeemed a portion of the
Interests held by PHP equal to 18.50% of the Interests in the Company. Pursuant
to the Assignment and Assumption Agreement, dated as of the date hereof (the
"Assignment and Assumption Agreement"), between PHP and Manager Member, PHP has
conveyed, transferred and assigned to Manager Member and Manager Member has
acquired and assumed a portion of the Interests held by PHP equal to 1% of the
Interests in the Company. Upon the consummation of the foregoing transactions,
PHP will have no Interests in the Company and Manager Member will constitute a
new Member of the Company.
Retiring Manager has retired as Manager of the Company but remains a
Member, and Manager Member has become the sole Manager of the Company.
In connection with a loan to the Company, the prospective lender has
required that the purposes of the Company be restricted to the ownership and
leasing of the properties currently owned by the Company. To satisfy such
requirement, the purposes and powers of the Company are being restricted.
In accordance with Section 14.4 of the Original Agreement, the Members and
the Retiring Manager desire to amend the Original Agreement. In accordance with
Section 13.8.2 of the Original
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Agreement, the Members desire to consent to the retirement of the Retiring
Manager and the Manager Member desires to evidence its acceptance of its
appointment as Manager.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency are hereby acknowledged, the
parties hereto agree to amend the Original Agreements as set forth herein.
Section 1 Amendments to the Original Agreement.
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1.1 In each place where the name "PHP Healthcare Corporation" or the
term "PHP Member" appears in the Original Agreement, such references are hereby
deleted and "G&L Management Delaware Corp" and "Manager Member", respectively,
are hereby inserted in their place.
1.2 Section 1.8 of the Original Agreement is hereby amended by deleting
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the reference to "or Reston, Virginia," as it appears therein.
1.3 Section 1.31 of the Original Agreement is hereby amended by changing
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"G&L Realty Corp." to "G&L Management Delaware Corp."
1.4 Section 6 of the Original Agreement is hereby deleted in its
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entirety and the following inserted in its place:
6.1 Purpose. The business and purpose of the Company shall be to (a)
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accomplish any lawful business or activity conducive to or expedient for the
protection or benefit of the Company and its Assets and related (directly or
indirectly, including but not limited to origination, purchase, disposition,
financing, and securitization of Property and/or the Credit Leases) to (i) the
acquisition of the properties more particularly described on Exhibit B attached
hereto (the "Properties") and the origination of Credit Leases approved pursuant
hereto; (ii) the sale, assignment, disposition or securitization of any of the
Properties and/or the Credit Leases; (iii) incurring indebtedness and obtaining
financing for the Company to acquire the Properties and originate the Credit
Leases, including interest or other hedging facilities all in accordance with
Section 6.2 below; (b) exercise all other powers necessary to or reasonably
connection with the foregoing Company's business which may be legally exercised
by a limited liability company under the Act, and (c) engage in all activities
necessary, or incidental to any of the foregoing.
6.2(a) Nomura Loan. Notwithstanding anything in this Agreement to the
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contrary, (i) unless and until that certain loan (the "Loan") from Nomura Asset
Capital Corporation (together with its successors and assigns, the "Lender") to
the LLC made pursuant to that certain Mortgage with Assignment of Leases and
Security Agreement dated on or about August 15, 1997 (the
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"Mortgage") is paid in full in accordance with the Loan Documents, each Member
agrees and covenants as follows: with capitalized terms used but not defined in
this Article 12 having the meanings ascribed to them in the Mortgage:
(b) Single-Purpose Entity. (a) the LLC and each SPE Equity Owner shall
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each be a Single-Purpose Entity as defined in Section 6.2(c) hereof, and (b) the
LLC and each Member shall act in a manner to cause the LLC and each SPE Equity
Owner to be and neither the LLC nor any Member shall take any action that could
cause the LLC or any SPE Equity Owner not to be a Single-Purpose Entity as
defined in Section 6.2(c) hereof.
(c) Definition of Single-Purpose Entity. "Single-Purpose Entity" means a
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corporation, limited partnership or limited liability company which at all times
since its formation and thereafter:
(1) Was and will be organized solely for the purpose of (i) owning the
Mortgaged Property (as defined in the Mortgage) or (ii) acting as the managing
member of the limited liability company which owns the Mortgaged Property or
(iii) acting as the general partner of a limited partnership which owns the
Facility or (iv) acting as the managing member of the limited liability company
which acts as managing member of the limited liability company which owns the
Mortgaged Property;
(2) Has not and will not engage in any business unrelated to (i) the
ownership of the Mortgaged Property or (ii) acting as a member of a limited
liability company which owns the Mortgaged Property or (iii) acting as a general
partner of a limited partnership which owns the Mortgaged Property or (iv)
acting as a member of a limited liability company which acts as the managing
member of the limited liability company which owns the Mortgaged Property;
(3) Has not and will not have any assets other than (i) those related
to the Mortgaged Property or (ii) its member interest in the limited liability
company which owns the Mortgaged Property or (iii) its general partnership
interest in the limited partnership which owns the Mortgaged Property, as
applicable or (iv) its member interest in the limited liability company which
acts as managing member of the limited liability company which owns the
Mortgaged Property;
(4) Has not and will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation or merger, and, except as
otherwise expressly permitted by this Agreement, has not and will not engage in,
seek or consent to any asset sale, transfer of partnership or membership or
shareholder interests, or amendment of its limited partnership agreement,
articles of incorporation, articles of organization, certificate of formation or
operating agreement (as applicable);
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(5) If such entity is a limited partnership, has and will have as its
only general partners, general partners which are and will be Single-Purpose
Entities which are corporations;
(6) If such entity is a corporation, at all relevant times, has and
will have at least one independent Director (as defined in the Mortgage, Section
10(p));
(7) The board of directors of such entity if any has not taken and
will not take any action requiring the unanimous affirmative vote of 100% of the
members of the board of directors unless all of the directors, including without
limitation all Independent Directors, shall have participated in such vote;
(8) Has not and will not fail to correct any known misunderstanding
regarding the separate identity of such entity;
(9) If such entity is a limited liability company, has and will have
as its only managing members (i) one or more corporations which are and will be
Single-Purpose Entities or (ii) one or more limited liability companies which
are and will be Single-Purpose Entities and which have and will have as their
only managing members, one or more corporations which are and will be
Single-Purpose Entities;
(10) Without the unanimous consent of all of the partners, directors
(including without limitation all Independent Directors) or members, as
applicable, has not and will not with respect to itself or to any other entity
in which it has a direct or indirect legal or beneficial ownership interest (i)
file a bankruptcy, insolvency or reorganization petition or otherwise institute
insolvency proceedings or otherwise seek any relief under any laws relating to
the relief from debts or the protection of debtors generally; (ii) seek or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such entity or all or any
portion of such entity's properties; (iii) make any assignment for the benefit
of such entity's creditors; or (iv) take any action that might cause such entity
to become insolvent;
(11) Has maintained and will maintain its accounts, books and records
separate from any other person or entity;
(12) Has maintained and will maintain its books, records, resolutions
and agreements as official records;
(13) Has not commingled and will not commingle its funds or assets
with those of any other entity;
(14) Has held and will hold its assets in its own name;
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(15) Has conducted and will conduct its business in its name;
(16) Has maintained and will maintain its financial statements,
accounting records and other entity documents separate from any other person or
entity;
(17) Has paid and will pay its own liabilities out of its own funds
and assets;
(18) Has observed and will observe all partnership, corporate or
limited liability company formalities as applicable;
(19) Has maintained and will maintain an arms-length relationship with
its affiliates;
(20) (i) If such entity owns the Mortgaged Property, has and will have
no indebtedness other than the indebtedness and unsecured trade payables in the
ordinary course of business relating to the ownership and operation of the
Mortgaged Property, which unsecured trade payables (1) do not exceed, at any
time, a maximum amount of two and one half percent (2.5%) of the Loan Amount and
(2) are paid within sixty (60) days of the date incurred, or (ii) if such entity
acts as the general partner of a limited partnership which owns the Mortgaged
Property, has and will have no indebtedness other than unsecured trade payables
in the ordinary course of business relating to acting as general partner of the
limited partnership which owns the Mortgaged Property which (1) do not exceed,
at any time, $10,000 and (2) are paid within sixty (60) days of the date
incurred, or (iii) if such entity acts as a member of a limited liability
company which owns the Mortgaged Property, has and will have no indebtedness
other than unsecured trade payables in the ordinary course of business relating
to acting as a member of the limited liability company which owns the Mortgaged
Property which (1) do not exceed, at any time, $10,000 and (2) are paid within
thirty (30) days of the date incurred, or (iv) if such entity acts as a member
of a limited liability company which is the managing member of the limited
liability company which owns the Mortgaged Property, has and will have no
indebtedness other than unsecured trade payables in the ordinary course of
business relating to acting as a member of the limited liability company which
owns the Mortgaged Property which (1) do not exceed, at any time, $10,000 and
(2) are paid within thirty (30) days of the date incurred.
21. Has not and will not assume or guarantee or become obligated for
the debts of any other entity or hold out its credit as being available to
satisfy the obligations of any other entity except for the indebtedness;
22. Has not acquired and will not acquire obligations or securities
of its partners, members or shareholders;
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23. Has allocated and will allocate fairly and reasonably shared
expenses, including, without limitation, shared office space and uses separate
stationary, invoices and checks;
24. Except pursuant to the Mortgage, has not and will not pledge its
assets for the benefit of any other person or entity;
25. Has held and identified itself and will hold itself out and
identify itself as a separate and distinct entity under its own name and not as
a division or part of any other person or entity;
26. Has not made and will not make loans to any person or entity;
27. Has not and will not identify its partners, members or
shareholders, or any affiliates of any of them as a division or part of it;
28. If such entity is a limited liability company, such entity shall
dissolve only upon the bankruptcy of the managing member, and such entity's
articles of organization, certificate of formation and/or operating agreement,
as applicable, shall contain such provision;
29. Has not entered and will not enter into or be a party to any
transaction with its partners, members, shareholders or its affiliates except in
the ordinary course of its business and on terms which are intrinsically fair
and are no less favorable to it than would be obtained in a comparable
arms-length transaction with an unrelated third party;
30. Has paid and will pay the salaries of its own employees from its
own funds;
31. Has maintained and will maintain adequate capital in light of its
contemplated business operations; and
32. If such entity is a limited liability company or limited
partnership, and such entity has one or more managing members or general
partners, as applicable, then such entity shall continue (and not dissolve) for
so long as a solvent managing member of general partner, as applicable, exists
and such entity's organizational documents shall contain such provision.
(d) Transfers. The LLC and each Member shall not engage in or consent to
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any Transfer (as hereinafter defined) other than a Permitted Transfer (as
defined in the Mortgage). As used in this Section 6.2(d), "Transfer" means any
conveyance, transfer (including, without limitation, any transfer of any direct
or indirect legal or beneficial interest (including, without limitation, any
profit interest) in the LLC or any SPE Equity Owner), sale, Lease (including,
without limitation, any amendment, extension, modification, waiver or renewal
thereof), or Lien, whether by law or
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otherwise, of, on or affecting any Collateral, the LLC or any SPE Equity Owner,
other than a Permitted Transfer.
(e) Dissolution and Winding Up.
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1. Notwithstanding any provision of this Agreement to the
contrary, the LLC shall be dissolved only upon the bankruptcy of the last
remaining Member and if such bankruptcy occurs, the Members hereby agree and
covenant to reconstitute the LLC with a Member that is a Single-Purpose Entity.
2. Except as otherwise required by applicable law, the proceeds
from liquidation of the LLC's assets shall be utilized to satisfy fully any and
all of the LLC's obligations and liabilities to Lender in accordance with the
Loan Documents prior to paying or distributing any of such proceeds to satisfy
other obligations or liabilities of the LLC.
(f) Priority of Distributions. At all times, the LLC's assets shall
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be utilized to satisfy fully any and all of the LLC's obligations and
liabilities to Lender in accordance with the Loan Documents prior to paying or
distributing any of such proceeds to satisfy other obligations or liabilities of
the LLC. Any and all fees, distributions or other payments owned by Borrower to
any third party pursuant to this Agreement (including without limitation all of
the Members and the property manager of the Mortgaged Property) shall be in all
respects subordinate to and subject to the terms and conditions of the Loan
Documents.
(g) Conflicts. To the extent that this Article 6 conflicts with any
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other provision of this Agreement, this Article 6 shall control. To the extent
that this Article 6 or this Agreement conflicts with any Loan Documents such
Loan Documents shall control.
1.5 Section 19.1 of the Original Agreement is hereby amended by
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deleting the address for PHP Healthcare Corporation.
1.6 Exhibit A to the Original Agreement is hereby amended by
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i. deleting the Percentage equal to "80.50%" set forth
opposite G&L Realty Partnership, L.P. and inserting "99.0%"
in its place;
ii. deleting the Percentage equal to "19.50%" set forth
opposite PHP Healthcare Corporation and inserting "1.0%" in
its place; and
iii. deleting the addresses for Notices to PHP Member and
inserting in its place the following address(es): 000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx Xxxxx,
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Xxxxxxxxxx 00000 with copies to the same recipients as in
the case of notices to G&L Member.
Section 2. Change of Manager.
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Retiring Manager hereby retires as Manager of the Company and the Members
consent to such retirement. Manager Member is hereby appointed the sole Manager
of the Company, and hereby accepts such appointment.
Section 3. Miscellaneous
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Except as otherwise expressly amended by this First Amendment, the Original
Agreement shall continue in full force and effect and is confirmed and ratified
hereby. This First Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original. Such counterparts shall
constitute but one and the same agreement. The First Amendment shall be
governed by and construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
date first set forth above.
G&L Realty Partnership, L.P., as Retiring Manager
By: G&L Realty Corp., its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Sr. VP
G&L Realty Partnership, L.P., as Member
By: G&L Realty Corp., its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Sr. VP
G&L Management Delaware Corp, as a Member
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Sr. VP
G&L Management Delaware Corp, as a Manager
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Sr. VP
