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Title: |
Operating Agreement |
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Date: |
2006 |
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Preview shows 13KB of 71KB total |
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$51 |
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ID: |
#1217953 |
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OPERATING AGREEMENT
OF
LIGHTSTONE MEMBER III, LLC
Dated as of June 30, 2005
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OPERATING AGREEMENT This Operating Agreement is entered into this 30th day of June, 2005, by and among DAVID LICHTENSTEIN, an individual (Managing Member), with an address c/o The Lightstone Group LLC, 326 Third Street, Lakewood, New Jersey 08701; PRESIDENTIAL REALTY CORPORATION, a Delaware corporation, with an address at 180 South Broadway, White Plains, New York 10605 (PRC); ROBERT BRVENIK, an individual, (Brvenik) with an address at 11410 Seymour Lane, Spotsylvania, Virginia 22553 and NICHOLAS KING, an individual (King), with an address at 217 E. Redwood, Suite 20, Baltimore, Maryland 21202. WHEREAS, David Lichtenstein, as the sole member, formed the Company by the filing of a Certificate of Formation with the Delaware Secretary of State on June 16, 2005, and WHEREAS, on June 30, 2005, the Property Owners, each of which is wholly owned by the Macon Burlington Owner, LLC, acquired the Properties, subject to the Mortgage Loan; and WHEREAS, on the date hereof, the Mezzanine Lender is making the Mezzanine Loan to the Company; and WHEREAS, David Lichtenstein desires to admit PRC, Brvenik and King as members of the Company. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Agreement is hereby amended and restated in its entirety to read as follows: EXPLANATORY STATEMENT The parties have agreed to organize and operate a Delaware limited liability company, which limited liability company shall henceforth be organized and operated in accordance with the terms and subject to the conditions set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, the parties, intending legally to be bound, hereby agree as follows: ARTICLE I The following capitalized terms shall have the meanings specified in this Article I. |
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Act means the Delaware Limited Liability Company Act, Delaware Code, Title 6, Sections 18-101, et seq., as amended from time to time. Additional Capital Contribution shall have the meaning set forth in Section 3.2. Adjusted Book Value means, with respect to each Company asset, the carrying value of each such asset on the books of the Company for federal income tax accounting purposes, as calculated pursuant to the rules set forth in Code (as hereinafter defined) Section 704 and Regulation (as hereinafter defined) Section 1.704. Adjusted Capital Account Deficit means, with respect to any Member, the deficit balance, if any, in the Members Capital Account as of the end of the relevant taxable year, after giving effect to the following adjustments: (a) credit to such Capital Account the amounts which the Member is obligated to restore or is deemed obligated to restore pursuant to the penultimate sentences of Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5); and (b) debit to such Capital Account the items described in Regulation Sections 1.704-1(b)(2)(ii)-(d)(4), (5), and (6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith. Affiliate means, with respect to any Member, any Person which directly or indirectly through one or more intermediaries Controls, is Controlled by or is under common Control with a specified Person. Agreement means this Operating Agreement, as amended from time to time. Approval (and any variation thereof) of a Member shall mean the prior written approval of such Member. Use of the term reasonable or reasonably in connection with the teem Approval or any variation thereof or with the term satisfactory means that such Approval shall not be withheld, conditioned or delayed unreasonably. Unless either of such terms is used in connection with the term Approval (or any variation thereof), such Approval may be granted or withheld in a Members (or its authorized representatives) sole discretion. Bankruptcy Action means, with respect to a Person, (a) instituting proceedings to be adjudicated bankrupt or insolvent; (b) consenting to the institution of bankruptcy or insolvency proceedings against it; (c) filing a petition seeking, or consenting to, reorganization or relief under any applicable federal or state law relating to bankruptcy; (d) consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or a substantial part of its property; (e) making any assignment for the benefit of creditors; (f) admitting in writing its inability to pay its debts generally as they become due or |
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