[Single Purpose Entity] LIMITED LIABILITY COMPANY AGREEMENT. XXX LLC A Delaware Limited Liability Company. Dated as of

Transcription

1 [Single Purpose Entity] LIMITED LIABILITY COMPANY AGREEMENT OF XXX LLC A Delaware Limited Liability Company Dated as of 1

2 TABLE OF CONTENTS ARTICLE I. DEFINITIONS Definitions Construction...2 ARTICLE II. ORGANIZATION Formation Name Registered Office; Registered Agent; Principal Office; Other Offices Purpose Foreign Qualification Term SPE Requirements ARTICLE III. MEMBERSHIP Member Information Liability to Third Parties....9 ARTICLE IV. CAPITAL CONTRIBUTIONS Initial Contributions Subsequent Contributions Return of Contributions Advances by Member Capital Accounts...9 ARTICLE V. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS Allocation of Net Profits and Net Losses Distributions...10 ARTICLE VI. MEETINGS Management by Member and Manager Action bv Written Consent Compensation Conflicts of Interest Meetings of Member Removal or Substitution of Manager Indemnity of Manager...12 ARTICLE VII. BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS Maintenance of Books Accounts Tax Returns...12 ARTICLE VIII. DISSOLUTION, LIQUIDATION, AND TERMINATION Dissolution i

3 8.02 Winding Up Certificate of Cancellation ARTICLE IX. GENERAL PROVISIONS Offset Notices Entire Agreement Effect of Waiver or Consent Amendment or Modification Binding Effect; No Third Party Beneficiaries Governing Law; Severability Counterparts...15 ii

4 ARTICLE I. DEFINITIONS 1.01 Definitions. As used in this Agreement, the following terms have the following meanings: "Act" means the Delaware Limited Liability Company Act and any successor statute, as amended from time to time. "Agreement" means this Limited Liability Company Agreement of the Company. 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 (1) and of the Act. "Capital Account" means the capital account of the Member in the Company. "Capital Contribution" means any contribution by a Member to the capital of the Company. "Certificate" has the meaning given that term in Section "Company" means XXX LLC, a Delaware limited liability company. "Loan" has the meaning given that term in Section 2.07(a). Loan. "Loan Documents" shall mean, collectively, all documents evidencing and securing the "Manager" means initially and any other Manager named by the Member pursuant to this Agreement. "Member" means, as the initial member of the Company.

5 "Membership Interest" means the limited liability company interest of the Member in the Company, including, without limitation, any rights to distributions (liquidating or otherwise), allocations, information, accounts and inspections and to consent or approve. "Net Losses" shall mean, for each fiscal year, the losses and deductions of the Company. "Net Profits" shall mean, for each fiscal year, the income and gains of the Company. "Person" has the meaning given that term in section (12) of the Act. "Property" shall mean the real property located at "Purchase and Sale Agreement" means that certain Agreement of Purchase and Sale of Real Property and Escrow Instructions dated as of, by and between, a, as seller, and, a, or its assigns, as buyer, the buyer's rights under which with respect to the Property have been assigned to the Company, as amended from time to time. "Special Member" means a member of the Company that becomes a member in accordance with Section 2.07(g) and shall only have the rights and duties expressly set forth in this Agreement. Other terms defined herein have the meanings so given them Construction. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter. All references to Articles and Sections refer to articles and sections of this Agreement Formation. A RTICLE II. ORGANIZATION The Company has been formed as a Delaware limited liability company by the filing of the certificate of formation (the "Certificate") under and pursuant to the Act. David Lautenberger ("Authorized Person") is hereby designated as an "authorized person" within the meaning of the Act and has executed, delivered and filed the Certificate of the Company with the Secretary of State of the State of Delaware. The Authorized Person is also authorized to file such documents as are required to qualify the Company to do business in the State of Florida and to obtain a federal tax identification number. After the foregoing have been completed by the Authorized Person or by another person so authorized by the Member, the Authorized Person's powers as an "authorized person" will cease, and the Member thereupon will became the designated "authorized person" and shall continue as the designated "authorized person" within the meaning of the Act. The Member 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 any other jurisdiction in which the Company may wish to conduct business. 2

6 2.02 Name. The name of the Company is "XXX LLC" and all Company business must be conducted in that name or such other names as the Member may select from time to time Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Member may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Member may designate from time to time in the manner provided by law. The principal office of the Company shall be at such place as the Member may designate from time to time, and the Company shall maintain records there as required by the Act and shall keep the street address of such principal office at the registered office of the Company in the State of Delaware. The Company may have such other offices as the Member may designate from time to time Purpose. (a) Subject to the provisions of this Agreement, the business of the Company is solely to (i) perform its obligations and exercise its rights under the Purchase and Sale Agreement and any other agreements or contracts contemplated thereby, and to carry out the terms of and engage in the transactions contemplated by such agreement; (ii) acquire, hold, maintain, operate, entitle, improve, develop, lease, sell and otherwise use the Property for profit; (iii) borrow money and issue evidence of indebtedness, in furtherance of any or all of the objectives of the Company's business and to secure the same by mortgage, pledge or other liens; and (iv) do any and all other acts or things that may be incidental or necessary to carry on the business of the Company as described in clauses (i), (ii) and (iii) above. The Company is not authorized to, and shall not, engage in any business other than as described in this Section. (b) The Company, and the Member, or any Manager, on behalf of the Company, may enter into and perform the Loan Documents and all documents, agreements, certificates and financing statements contemplated thereby or related thereto, all without any further act, vote or approval of any 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 any Manager to enter into other agreements on behalf of the Company Foreign Qualification. Prior to the Company's conducting business in any jurisdiction other than Delaware, the Member shall cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of the Member, with all requirements necessary or advisable to qualify the Company as a foreign limited liability company in that jurisdiction. 3

7 2.06 Term. The Company shall continue in existence perpetually or until such time as this Agreement may specify. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate as provided in the Act SPE Requirements. Notwithstanding anything in this Agreement to the contrary (including, but not limited to, Section 2.04 of this Agreement), unless and until that certain loan (the Loan ) from (together with its transferees, successors and assigns, the Lender ) to the Company evidenced and secured by certain loan documents ( Loan Documents ) including, without limitation, a mortgage (the Security Instrument ) encumbering the Property has been paid in full in accordance with the terms and provisions of such Security Instrument and other Loan Documents, the Company covenants and agrees that the following provisions shall apply: (a) Purpose. The Company s business and purpose shall consist solely of the acquisition, ownership, operation and maintenance of the Property and activities incidental thereto. (b) Powers and Duties. Without the consent of all members, the Company shall have no authority on behalf of the Company to: (1) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than obligations secured by the Security Instrument, except unsecured trade payables incurred in the ordinary course of its business of owning and operating the Property in such amounts as are normal and reasonable under the circumstances, provided that such debt is not evidenced by a note and is paid within 60 days of the date incurred, and provided in any event the outstanding principal balance of such debt shall not exceed at any one time four percent (4%) of the outstanding obligations secured by the Security Instrument; (2) to the fullest extent permitted by law, seek the dissolution or winding up, in whole or in part, of the Company; (3) merge into or consolidate with any person or entity or to the fullest extent permitted by law, dissolve, terminate or liquidate, in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure; (4) file a voluntary petition or otherwise initiate proceedings to have the Company adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Company, or file a petition seeking or consenting to reorganization or relief of the Company as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to the Company; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Company or of all or any substantial part of the properties and assets of the Company, or make any general assignment for the benefit of creditors of the Company, or admit in writing the inability of the Company to pay its debts generally as they 4

8 become due or declare or effect a moratorium on the Company debt or take any action in furtherance of any such action; or (5) amend, modify or alter all or any portion of this Section Notwithstanding the foregoing and so long as any obligation secured by the Security Instrument remains outstanding and not discharged in full, the Company shall have no authority to take any action in items (1) through (3) and (5) without the written consent of the holder of the Security Instrument. (c) Title to Company Property. All property owned by the Company shall be owned by the Company as an entity and, insofar as permitted by applicable law, no member shall have any ownership interest in any Company property in its individual name or right, and each member s interest in the Company shall be personal property for all purposes. (d) Separateness/Operations Matters. The Company has not and shall not: (1) engage in any business or activity other than the acquisition, development, ownership, operation, leasing and managing and maintenance of the Property, and entering into the Loan and activities incidental thereto; (2) acquire or own any material assets other than (i) the Property, and (ii) such incidental Personal Property (as defined in the Security Instrument) as may be necessary for the operation of the Property; (3) merge into or consolidate with any person or entity or, to the fullest extent permitted by law, dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the consent of Lender; (4) fail to observe its organizational formalities or preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualification to do business in the State where the Property is located, if applicable, or (ii) without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of the Company's Certificate of Formation, this Agreement or similar organizational documents, as the case may be; (5) own any subsidiary or make any investment in, any person or entity without the consent of Lender; (6) commingle its assets with the assets of any of its members, affiliates, principals or of any other person or entity, participate in a cash management system with any other entity or person, fail to use its own separate stationery, telephone number, invoices and checks, or permit the use of its stationary, telephone number, invoices and checks other than for the Company's own business; 5

9 (7) become insolvent and fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; (8) (i) fail to maintain its records (including financial statements), books of account and bank accounts separate and apart from those of the members, principals and affiliates of the Company, the affiliates of a member or principal of the Company, and any other person or entity, (ii) permit its assets or liabilities to be listed as assets or liabilities on the financial statement of any other entity or person, or (iii) include the assets or liabilities of any other person or entity on its financial statements; (9) enter into any contract or agreement with any member principal or affiliate of the Company, any guarantor of the Loan, or any member principal or affiliate thereof (other than a management agreement with an affiliate of the Company, so long as (i) such agreement is acceptable to Lender, (ii) the manager, or equivalent thereof, under such agreement holds itself out as an agent of the Company, and (iii) the agreement is on terms and conditions that are commercially reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any member, principal or affiliate of the Company, any guarantor of the Loan, or any member, principal or affiliate thereof); (10) fail to correct any known misunderstandings regarding the separate identity of the Company or any member, principal or affiliate thereof or any other person; (11) guarantee or become obligated for the debts of any other entity or person or hold itself out to be responsible for the debts of another person or entity, or use its assets to pay the debts of another entity or person; (12) make any loans or advances to any third party, including any member, principal or affiliate of the Company, or any member, principal or affiliate thereof, and shall not acquire obligations or securities of any member, principal or affiliate of the Company, or any member or affiliate thereof; (13) fail to file its own tax returns or be included on the tax returns of any other person or entity except as required by applicable law; (14) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Company is responsible for the debts of any third party (including any member, principal or affiliate of the Company, or any member, principal or affiliate thereof); (15) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (16) share any common logo, with or hold itself out as or be considered as a department or division of (i) any principal, member or affiliate of the Company, (ii) any affiliate of a principal or member of the Company, or (iii) any other person or entity; 6

10 (17) fail to allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including paying for office space and services performed by any employee of an affiliate; (18) pledge its assets for the benefit of any other person or entity, other than with respect to the Loan; (19) fail to maintain a sufficient number of employees in light of its contemplated business operations; (20) fail to hold its assets in its own name; (21) fail to consider the interests of its creditors in connection with all Company actions to the extent permitted by applicable law; or (22) unless otherwise permitted by the Loan Documents (as defined in the Security Instrument), have any of its obligations guaranteed by an affiliate. (e) Effect of Bankruptcy, Death or Incompetency of a Member. The bankruptcy, death, dissolution, liquidation, termination or adjudication of incompetency of a member of the Company shall not cause the termination or dissolution of the Company and the business of the Company shall continue. Upon any such occurrence (other than bankruptcy), the trustee, receiver, executor, administrator, committee, guardian or conservator of such member shall have all the rights of such member for the purpose of settling or managing its estate or property, subject to satisfying conditions precedent to the admission of such assignee as a substitute member. The transfer by such trustee, receiver, executor, administrator, committee, guardian or conservator of any Company interest shall be subject to all of the restrictions hereunder to which such transfer would have been subject if such transfer had been made by such deceased, dissolved, liquidated, terminated or incompetent member. (f) Subordination of Indemnification Provisions. Notwithstanding any provision hereof to the contrary, any indemnification claim against the Company arising under this Agreement or the laws of the state of organization of the Company shall, to the fullest extent permitted by law, be fully subordinate to any obligations of the Company arising under the Security Instrument or any other Loan Document, and shall, to the fullest extent permitted by law, only constitute a claim against the Company to the extent of, and shall be paid by the Company in monthly installments only from, the excess of net operating income for any month over all amounts then due under the Security Instrument and the other Loan Documents. (g) No Dissolution. Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. Notwithstanding any provision in this Agreement to the contrary, upon the occurrence of any event that causes the Member to cease to be a member of the Company, (a) the Person executing this Agreement as Special 7

11 Member, without any action of any person or entity and simultaneously with the Member's ceasing to be a member of the Company, automatically be admitted to the Company as a Special Member, and shall continue the Company without dissolution, and (b) 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, appoint a person or entity as a substitute member of the Company (the "Substitute Member"). The Special Member may not resign from the Company or transfer its rights as Special Member unless a successor Special Member has been admitted to the Company as Special Member by executing a counterpart to this Agreement; provided, however, the Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a Substitute Member. The Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of Company assets. The Special Member shall not be required to make any capital contributions to the Company and shall not receive a limited liability company interest in the Company. The Special Member, in its capacity as Special Member, shall not have the right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company, 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 in the Company. (h) Violations of Law. 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 of the Act or any other applicable law Member. A RTICLE III. MEMBERSHIP The Member of the Company is LLC, a Delaware limited liability company, who is admitted to the Company as a member effective as of the date hereof Information. In addition to the other rights specifically set forth in this Agreement and the Act, the Member is entitled to all information to which the Member is entitled to have access pursuant to section of the Act under the circumstances and subject to the conditions therein stated. 8

12 3.03 Liability to Third Parties. Except as otherwise expressly provided by the Act, none of the Member or any Manager shall be liable for the debts, obligations or liabilities of the Company, including under a judgment, decree or order of any court solely by reason of being a member or manager of the Company Initial Contributions. A RTICLE IV. CAPITAL CONTRIBUTIONS Contemporaneously with the execution by the Member of this Agreement, the Member has contributed, or will contribute, $100 to the Company Subsequent Contributions. Except as provided in Section 4.01 above, the Member shall not have any obligation to make any Capital Contribution. Subsequent Capital Contributions may be made from time to time at the discretion of the Member Return of Contributions. The Member is not entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its Capital Account or its Capital Contribution. An unrepaid Capital Contribution is not a liability of the Company. The Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return the Member's Capital Contribution Advances by Member. If the Company does not have sufficient cash to pay its obligations, the Member, at its sole discretion, may agree to advance all or part of the needed funds to or on behalf of the Company. An advance described in this Section 4.04 constitutes a loan from the Member to the Company, bears interest at the rate agreed to with the Company at such time from the date of the advance until the date of payment, and is not a Capital Contribution. Upon the Member's request, the Company shall execute and deliver to the Member a promissory note setting forth the terms and conditions of any advance Capital Accounts. A separate Capital Account shall be maintained for the Member. ARTICLE V. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS 5.01 Allocation of Net Profits and Net Losses. The Net Profits and Net Losses for each fiscal year shall be allocated to the Member. 9

13 5.02 Distributions. The Member shall be entitled to distributions of all available cash as determined by the Member. ARTICLE VI. MEETINGS 6.01 Management by Member and Manager. (a) The Member shall be solely responsible for the management of the Company except to the extent that the Member delegates management duties to the Manager. (b) The Member shall make all major decisions for the Company (subject to delegating various actions in carrying out such decisions on behalf of the Company), which shall include the following: (1) entering into, making, and performing contracts and agreements binding the Company that may be necessary, appropriate, or advisable in furtherance of the purposes of the Company and making all decisions and waivers thereunder; (2) opening and maintaining bank and investment accounts and arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements; (3) collecting and suing for sums due the Company and engaging attorneys to represent the Company in such actions; (4) paying debts and obligations of the Company; (5) acquiring, leasing or otherwise utilizing, and disposing of, any property or asset; (6) borrowing money or otherwise committing the credit of the Company, and providing security therefor, and voluntary prepayments or extensions of debt; (7) appointing and removing officers of the Company; (8) entering into any transaction between the Company and the Member or any of the Member's affiliates; (9) determining distributions of Company cash and other property as provided in Section 5.02; and (10) all other decisions and actions allowed under the Act to carry out the purpose of the Company, except for the decision to file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, make an assignment for the benefit of creditors, admit in writing the inability to pay its debts generally as they become due or 10

14 take any action in furtherance of any of the foregoing, which shall require the affirmative vote of all of the members of the Company Action by Written Consent. Any action permitted or required by the Act, the Certificate or this Agreement to be taken at a meeting may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by the Member. Such consent shall have the same force and effect as a unanimous vote at a meeting and may be stated as such in any document or instrument filed with the Secretary of State of Delaware, and the execution of such consent shall constitute attendance or presence in person at a meeting of the Member Compensation. The Member and each Manager shall be entitled to be reimbursed for out-of-pocket costs and expenses incurred in the course of their respective service hereunder Conflicts of Interest. Subject to the other express provisions of this Agreement, the Member and Manager at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, independently or with others, including ones in competition with the Company, with no obligation to offer to the Company or any other officer the right to participate therein. The Company may transact business with the Member or any officer or affiliate thereof, provided the terms of those transactions are no less favorable than those the Company could obtain from unrelated third parties and are approved by the Member Meetings of Member. (a) An annual meeting of the Member, for the transaction of business as may properly come before the meeting, shall be held at such place, within or without the State of Delaware, on such date and at such time as the Member shall fix and set forth in the notice of the meeting, which date shall be within 13 months subsequent to the date of formation of the Company or the last annual meeting of the Member, whichever most recently occurred. All meetings of the Member shall be held at the principal place of business of the Company or at such other place within or without the State of Delaware as shall be specified or fixed in the notices or waivers of notice thereof. (b) Special meetings of the Member for any proper purpose or purposes may be called at any time by the Member Removal or Substitution of Manager. The Member may appoint or remove any entity as Manager. Any Manager may delegate its duties under this Agreement to any officer of that Manager who will have all rights and obligations of Manager in regards to the duties so delegated. 11

15 6.07 Indemnity of Manager. Neither a Manager nor any of its members, officers or directors will be liable to the Company or to the Member for any act or omission taken or omitted by the Manager or by any of them in good faith, provided that such act or omission did not constitute fraud, willful misconduct or an intentional violation of law. The Company will, to the fullest extent permitted by law, indemnify and hold harmless the Manager, its members, officers or directors from and against any and all loss, cost, damage, expense (including without limitation fees and expenses of attorneys) or liability by reason of any acts taken by the Manager for the Company, except to the extent that the loss, cost, damage, expense or liability resulted from the Manager's fraud, willful misconduct, or intentional violation of law. ARTICLE VII. BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS 7.01 Maintenance of Books. The Company shall keep books and records of accounts and shall keep minutes of the proceedings of its Member. The books of account for the Company shall be maintained in accordance with the terms of this Agreement Accounts. The Member shall establish and maintain one or more separate bank and investment accounts and arrangements for Company funds in the Company name with financial institutions and firms that the Member determines Tax Returns. The Member shall prepare and file all necessary federal and state income tax returns for the Company. ARTICLE VIII. DISSOLUTION, LIQUIDATION, AND TERMINATION 8.01 Dissolution. Subject to Section 2.07, the Company shall dissolve and its affairs shall be wound up on the first to occur of the following: (a) (b) the written consent of the Member; and entry of a decree of judicial dissolution of the Company under section of the Act. (c) 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. 12

16 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, 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 Winding Up. On dissolution of the Company, the Member shall be the liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidator shall conduct only such activities as are necessary to wind up the Company's affairs (including the sale of assets of the Company in an orderly fashion). The steps to be accomplished by the liquidator, in accordance with Section of the Act, shall be as follows: (a) as promptly as possible after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by a recognized of certified public accountants of the Company's assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable; (b) the liquidator shall cause the notice to be mailed to each known creditor of and claimant against the Company; (c) the liquidator shall pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company (including, without limitation, all expenses incurred in liquidation and any advances described in Section 4.04) or otherwise make adequate provision for payment and discharge thereof (including, without limitation, the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine); and (d) all remaining assets of the Company shall be distributed to the Member. All distributions in kind to the Member shall be made subject to the liability of each distributee for costs, expenses, and liabilities theretofore incurred or for which the Company has committed prior to the date of termination, and those costs, expenses, and liabilities shall be allocated to the distributee pursuant to this Section The distribution of cash or property to the Member in accordance with this Section 8.02 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest and all the Company's property and constitutes a compromise Certificate of Cancellation. On completion of the distribution of Company assets as provided herein, the Company shall terminate upon the cancellation of the Certificate in the manner required by the Act. 13

17 A RTICLE IX. GENERAL PROVISIONS 9.01 Offset. Whenever the Company is to pay any sum to the Member, any amounts that the Member owes the Company may be deducted from that sum before payment Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests, or consents provided for or permitted to be given under this Agreement must be in writing and must be given either by depositing that writing in the United States mail, addressed to the recipient, postage paid, and registered or certified with return receipt requested, or by delivering that writing to the recipient in person, by courier, or by facsimile transmission; and, except as otherwise provided in this Agreement, a notice, request, or consent given under this Agreement is effective on receipt by the Person to receive it. All notices, requests, and consents to be sent to the Member must be sent to or made at such address as the Member may specify. Whenever any notice is required to be given by law, the Certificate or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice Entire Agreement. This Agreement, together with the Certificate, constitutes the entire agreement of the Member relating to the Company and supersedes all prior contracts or agreements with respect to the Company, whether oral or written Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period has run Amendment or Modification. This Agreement may be amended or modified from time to time only by a written instrument executed by the Member Binding Effect; No Third Party Beneficiaries. This Agreement is binding on and inures to the benefit of the Member. There are no third party beneficiaries of this Agreement. 14

18 9.07 Governing Law; Severability. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THE PROVISIONS HEREOF TO THE LAWS OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and any mandatory provision of the Act or (to the extent such statutes are incorporated into the Act) the Delaware General Corporation Law, the applicable provision of the Act or the Delaware General Corporation Law shall control. If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected thereby and that provision shall be enforced to the greatest extent permitted by law Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument 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 Special Member, in accordance with its terms Effectiveness. Pursuant to Section (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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 15

19 IN WITNESS WHEREOF, Member has executed this Agreement as of the date first set forth above and the Manager has executed this Agreement following its adoption. MEMBER: XXX Fund LLC By: Name: Title: MANAGER: XXX Management LLC By: Name: Title: SPECIAL MEMBER: XXX Management LLC By: Name: Title: # _v2