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Operating Agreement

 

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Title:

Operating Agreement

Entities:

Inland Western Retail Real Estate Trust Inc.

Date:

2007

Size:

Preview shows 63KB of 189KB total

Price:

$77

ID:

#2867240

 

 

► Business ► Operating Agreements
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OPERATING AGREEMENT


OF


MS INLAND FUND, LLC

(A DELAWARE LIMITED LIABILITY COMPANY)



Dated as of


April ___, 2007








 




Table of Contents


Page(s)

ARTICLE 1 DEFINITIONS

1

1.1

Definitions

1

1.2

Construction

9

1.3

Headings

9

1.4

Captions

9

ARTICLE 2 FORMATION OF COMPANY

9

2.1

Effect of this Agreement and the Delaware Act

9

2.2

Name

9

2.3

Principal Place of Business

9

2.4

Registered Office and Registered Agent

9

2.5

Filing of Documents

10

2.6

Qualification in Foreign Jurisdictions

10

2.7

Ownership; Waiver of Right of Partition

10

2.8

Limitations

10

2.9

Term

10

2.10

Modification to Structure for ERISA Issues

10

2.10

Modification to Structure for ERISA Issues

11

ARTICLE 3 REPRESENTATIONS AND WARRANTIES

11

3.1

Authority; Enforceability

11

3.2

Securities Compliance

11

3.3

Compliance With Anti-Terrorism Laws

11

3.4

Financial Capacity

12

ARTICLE 4 BUSINESS OF COMPANY; INVESTMENT ACTIVITIES

12

4.1

Business of the Company

12

4.2

Acquisition of Existing Portfolio Interest

12

4.3

Identification of Potential Projects/Evaluation Costs

12

4.4

Financing

14

4.5

Guarantees

14

4.6

Standard of Care

14

4.7

Exclusivity

14

4.8

Project Entity Formation

15

ARTICLE 5 MANAGEMENT OF THE COMPANY

15

5.1

Management

15

5.2

Major Decisions

16

5.3

Meetings

19

5.4

Investment Advisor

19

5.5

Liability for Certain Acts

20

5.6

Representatives Have No Exclusive Duty to Company

20

5.7

Bank Accounts

20

5.8

Resignation; Removal

20

5.9

Compensation and Reimbursement

20

5.10

Officers

21

5.11

Indemnification of Officers

21

5.12

Project Entity Officers

21



i

 


ARTICLE 6 RIGHTS AND OBLIGATIONS OF MEMBERS

21

6.1

May Not Bind Company

21

6.2

Limitation on Liability

22

6.3

List of Members

22

6.4

Priority and Return of Capital

22

6.5

Members Have No Exclusive Duty to Company

22

6.6

Indemnification of Members

22

ARTICLE 7 CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

22

7.1

Capital Contributions

22

7.2

Withdrawal of Members Contributions to Capital

26

7.3

Capital Accounts

26

ARTICLE 8 ALLOCATIONS OF PROFITS AND LOSSES

27

8.1

Definitions Related to Allocations of Net Profits and Net Losses

27

8.2

Allocations of Fiscal Year Items

28

8.3

Proration of Items

29

8.4

Limitation on Loss Allocations

29

8.5

Intentions and Construction of Allocations

29

8.6

Special Allocations

29

8.7

Built-In Gain or Loss/Section 704(c) Tax Allocations

31

8.8

Recapture

31

8.9

Retention of Section 751 Assets

31

8.10

Prohibition Against Retroactive Allocations

31

8.11

Allocation of Nonrecourse Liabilities

31

ARTICLE 9 DISTRIBUTIONS TO MEMBERS

31

9.1

Operating Distributable Cash

31

9.2

Acquired Project Operating Distributable Cash

32

9.3

Capital Event Distributable Cash Existing Portfolio Projects

32

9.4

 Capital Event Distributable Cash Acquired Projects

33

9.5

Annual Reconciliation; Incentive Distribution for Existing Portfolio; Clawback

34

9.6

Limitation Upon Distributions

34

ARTICLE 10 CERTAIN FEES

34

10.1

Certain Fees to Inland and Inland Affiliates

34

ARTICLE 11 BOOKS AND RECORDS

35

11.1

Accounting Period

35

11.2

Records

35

11.3

Audits and Reports

35

11.4

Methods of Accounting

36

11.5

Tax Matters Member

37

11.6

Matters Concerning Banking

37

11.7

Company Attorney

37

ARTICLE 12 TRANSFERABILITY AND WITHDRAWAL

38

12.1

Transfer Limitations

38

12.2

Right of First Offer

38

12.3

Buy/Sell Agreement

39

12.4

Provisions Applicable to Right of First Offer and Buy/Sell Agreement

40

12.5

Certain Permitted Transfers by the Board

41

12.6

Certain Permitted Transfer by Inland

41

12.7

Termination of Obligations

41



ii

 


12.8

Restraining Order

42

12.9

No Termination

42

12.10

Withdrawal

42

ARTICLE 13 DISSOLUTION AND TERMINATION

42

13.1

Waiver of Rights

42

13.2

Voluntary Termination

42

13.3

Events of Involuntary Dissolution

42

13.4

Reformation of Company

43

13.5

Effect of Dissolution

43

13.6

Winding Up, Liquidation and Distribution of Assets

43

13.7

Certificate of Termination

44

13.8

Return of Contribution Nonrecourse to Other Members

44

ARTICLE 14 ADDITIONAL MEMBERS

44

14.1

Admission of a New Member

44

ARTICLE 15 MISCELLANEOUS PROVISIONS

45

15.1

Governing Laws

45

15.2

No Action for Partition


 

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