Exhibit 99.6
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of IATG PUERTO RICO, LLC, a Delaware limited liability company (the
"Company"), dated as of February 27, 2009, by and between IATG MANAGER, LLC, a
Delaware limited liability company having an address c/o The Lightstone Group,
326 Third Street, Lakewood, New Jersey 08701, as the managing member (the
"Managing Member"), DAVID LICHTENSTEIN, residing at 5 Grand Park Drive, Wesley
Hills, New York 10952 ("Lichtenstein"), PRESIDENTIAL IATG, INC., a Delaware
corporation with offices at c/o Presidential Realty Corporation, 180 South
Broadway, White Plains, New York 10605 ("Presidential") and LEWIS GELBMAN,
having an address at 4 New King Street, White Plains, New York 10604 ("Gelbman";
the Managing Member, Lichtenstein, Presidential and Gelbman being hereinafter
sometimes individually referred to as, a "Member" and collectively referred to
as, the "Members").
Introductory Statement
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The Company was formed on or about October 3, 2003 to acquire the real
property together with improvements thereon formerly known as the Intel Puerto
Rico site in Las Piedras, Puerto Rico (the "Property").
A Limited Liability Company Operating Agreement of the Company (the
"Original Agreement") dated as of October 3, 2003 was heretofore entered into by
the Managing Member and Lichtenstein. Subsequently, Presidential and Gelbman
each acquired a membership interest in the Company and the parties to this
Agreement desire to amend and restate the Original Agreement in its entirety to
reflect the addition of Presidential and Gelbman as Members of the Company and
to make certain other changes to the Original Agreement as hereinafter more
particularly set forth.
NOW, THEREFORE, in consideration of the promises and contributions
described herein, and intending to be legally bound hereby, the undersigned
hereby agree that, effective as of the date hereof, the Original Agreement is
amended, modified, supplemented and restated in its entirety as follows:
ARTICLE 1. Organization; Name; Office.
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1.1. The Members heretofore formed the Company as a limited liability
company pursuant to the Delaware Limited Liability Company Act, Del. Code Ann.
title 6, ss.ss.18-101 et seq., as amended from time to time (the "DLLCA"),
effective as of the date of filing of the Certificate of Formation of the
Company with the Delaware Secretary of State. This Agreement constitutes the
Company's "limited liability company agreement" for purposes of the DLLCA.
1.2. The name of the Company is IATG Puerto Rico, LLC.
1.3. The principal office of the Company shall be located at c/o The
Lightstone Group, 326 Third Street, Lakewood, New Jersey 08701, or at such other
location as the Members shall determine from time to time.
1.4. The name and address of the registered agent of the Company for
service of process of the Company in the State of Delaware is Registered Agents
Legal Services, LLC, located at 1220 North Market Street, Suite 606, Wilmington,
Delaware or such other registered agent as the Members shall appoint from time
to time. The registered office of the Company in the State of Delaware shall be
Registered Agents Legal Services, LLC, 1220 North Market Street, Suite 606,
Wilmington, Delaware.
ARTICLE 2. Purposes; Powers.
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2.1. Notwithstanding any provision hereof or of any other document
governing the formation, management or operation of the Company to the contrary,
the following shall govern: The nature of the business and of the purposes to
be conducted and promoted by the Company is to engage solely in the following
activities:
(a) To acquire, own, hold, sell, transfer, encumber, dispose
and/or and otherwise deal with the Property; and
(b) To exercise all powers and rights conferred upon limited
liability companies formed pursuant to the DLLCA necessary or convenient to the
conduct, promotion or attainment of the business or purposes otherwise set forth
in this Article 2.
2.2. Except as hereinafter set forth to the contrary, the Company
and the Managing Member on behalf of the Company: (i) shall have and exercise
all powers necessary, convenient or incidental to accomplish the Company's
purposes as set forth in Section 2.1, and (ii) subject to Section 2.1 and the
other provisions of this Agreement, shall have and exercise all of the powers
and rights conferred upon limited liability companies formed pursuant to the
DLLCA.
ARTICLE 3. Term.
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3.1. The existence of the Company as a separate legal entity shall
continue until the cancellation of the Certificate of Formation as provided in
the DLLCA.
ARTICLE 4. Managing Member.
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4.1. The name and mailing address of the Managing Member is as
follows: IATG Manager, LLC, c/o The Lightstone Group, 326 Third Street,
Lakewood, New Jersey 08701. Upon the execution of this Agreement or a
counterpart of this Agreement, without the need for any action on the part of
any person, IATG Manager, LLC, a Delaware limited liability company, is hereby
admitted to the Company as the Managing Member of the Company.
ARTICLE 5. Percentage Interests.
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5.1. The percentage interest of the Members in and of the capital,
profits and losses, and distributions of the Company, and of all other limited
liability company interests, rights, and obligations of and in the Company is
as follows:
IATG MANAGER, LLC 1%
DAVID LICHTENSTEIN 48%
PRESIDENTIAL IATG, INC. 50%
LEWIS GELBMAN 1%
ARTICLE 6. Allocation of Profits and Losses.
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6.1. All of the profits and losses of the Company shall be allocated
to the Members in accordance with their percentage interest in the Company.
ARTICLE 7. Capital.
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7.1. Except as hereinafter expressly set forth to the contrary, the
Members are not required to make any additional capital contribution to the
Company. However, the Members may make additional capital contributions to the
Company at any time. The provisions of this Agreement, including this Section,
are intended to benefit the Members 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). The Members 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.
7.2. No interest shall be paid by the Company on the initial capital
or on any subsequent contributions to the capital of the Company by the Members.
7.3. The Members shall look solely to the assets of the Company for
any distributions of profits or of capital.
7.4. Notwithstanding anything to the contrary set forth in this
Agreement, the Managing Member, but no other Member, shall be required to
contribute as additional capital to the Company all sums necessary for the
Company to carry on its business for the purposes set forth in Article 2 above
including, without limitation, all sums necessary to pay debt service on any
loan made to the Company, all sums necessary to maintain and operate the
Property (which shall not include the costs associated with leasing any portion
of the Property, such as tenant improvements or brokerage commissions).
Lichtenstein, as the owner of a ninety-nine (99%) percent interest in the
Managing Member and the managing member thereof agrees to cause the Managing
Member to carry out its obligations as set forth in this Section 7.4. Neither
the Managing Member nor Lichtenstein shall have any personal liability to the
other Members for failing to comply with the provisions of this Section 7.4,
except as specifically set forth in Section 7.5 below.
7.5. (a) In the event the Managing Member and/or Lichtenstein is/are
in default of its/his/their obligations as set forth in Section 7.4 above
following receipt of written notice of such default given by any other Member
and the passage of ten (10) days following the giving of such notice (the "Cure
Period"), then, in each such instance, Presidential, but no other Member, shall
have the right ("Presidential's Option") to require the Managing Member and/or
Lichtenstein to sell and assign to Presidential or its designee so much of the
Managing Member's and/or Lichtenstein's respective membership interest in the
Company as Presidential may elect and, in consideration thereof, Presidential
shall pay to the Managing Member and/or Lichtenstein, as the case may be, a
purchase price equal to $50.00 for each one (1%) percent membership interest
purchased by Presidential (in each instance, the "Purchase Price"). Presidential
shall exercise Presidential's Option by giving written notice (in each instance,
the "Option Notice") to the Managing Member and/or Lichtenstein (each of which
shall, to the extent given an Option Notice, be referred to for purposes of this
Section 7.5 as, a "Transferee") not later than thirty (30) days following the
expiration of the Cure Period, which Option Notice shall specify the percentage
membership interest as to which Presidential is exercising Presidential's Option
(the "Transferred Interest") and include a certified, official, teller's or
cashier's check in the amount of the Purchase Price owed to the Transferee. Upon
the giving by Presidential of the Option Notice and the payment of the Purchase
Price to the Transferee, all right, title and interest of the Transferee in and
to the Transferred Interest including, without limitation, all right, title and
interest of the Transferee as a Member of the Company and all monies paid on
account of or contributed to the Company by the Transferee shall be and be
deemed to be automatically assigned, conveyed, transferred and set over unto
Presidential without further notice or action of any kind whatsoever on the part
of anyone, and, thereupon, Presidential shall be and be deemed to be the owner
of 100% of the Transferred Interest.
(b) Notwithstanding anything in this Section 7.5 to the
contrary, if Presidential exercises Presidential's option with respect to all
or any portion of Lichtenstein's membership interest it shall be deemed to have
exercised its option with respect to all of the Managing Member's membership
interests and if Presidential exercises its option with respect to all or any
portion of the Managing Member's membership interests it shall be deemed to have
exercised its option with respect to all of Lichtenstein's membership interests.
ARTICLE 8. Management, Duties and Restrictions.
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8.1. Except as otherwise provided in this Agreement, the business and
affairs of the Company shall be managed by the Managing Member. The Managing
Member shall have full and exclusive authority to manage, administer and operate
the business of the Company in its sole discretion, to the maximum extent
permitted in the DLLCA, and shall have authority to bind the Company. No other
Member of the Company shall have authority to act without the express written
consent of the Managing Member.
8.2. Notwithstanding anything to the contrary set forth in this
Agreement, the consent of Members holding not less than fifty (50%) percent of
the membership interests in the Company entitled to vote thereon shall be
necessary to authorize any of the following acts or transactions (each, a "Major
Decision") by the Managing Member on behalf of the Company:
(a) any act that is unrelated to the purpose of the Company;
(b) the sale, exchange or other disposition of all or
substantially all of the Company's assets, whether in a single transaction or
series of related transactions, or the merger or consolidation of the Company
with or into another Person; (c) entering into a lease for any portion of the
Property;
(d) the mortgaging or refinancing of the Company's assets
including, without limitation, the Property;
(e) any assignment for the benefit of creditors of the Company,
the filing of a voluntary petition in bankruptcy, or the appointment of a
receiver for the Company; and
(f) the amendment of the Certificate of Formation or this
Agreement in any respect.
ARTICLE 9. Voting; Meetings.
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9.1. The Members may act by written consent in lieu of a meeting.
There shall be no prior notice or other procedural requirements for voting by
the Members by written consent in lieu of a meeting.
9.2. Annual or other meetings shall not be required.
9.3. When acting on matters relating solely to the Company and
subject to the vote of the Members, notwithstanding that the Company is not then
insolvent, the Members shall, to the fullest extent permitted by law, take into
account the interest of the Company's creditors, as well as those of the Members
and the Company.
9.4. Members holding not less than a majority of all membership
interests in the Company, represented in person or by proxy, shall constitute a
quorum at any meeting of Members. In the absence of a quorum at any meeting of
Members, a majority of the Membership Interests so represented may adjourn the
meeting from time to time for a period not to exceed sixty days without further
notice. However, if the adjournment is for more than sixty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each Member of record entitled to vote
at such meeting. At an adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. The Members present at a meeting may continue
to transact business until adjournment, notwithstanding the withdrawal during
the meeting of membership interests whose absence results in less than a quorum
being present.
9.5. If a quorum is present at any meeting, the vote or written
consent of Members holding not less than a majority of membership interests
shall be the act of the Members, unless the vote of a greater or lesser
proportion or number is otherwise required by the DLLCA, the Certificate of
Formation or this Agreement.
ARTICLE 10. Distributions.
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10.1. In this Agreement, "Available Cash" means, at any particular
time, all cash and cash items (from whatever source received) held by the
Company at such time, to the extent such cash is not reasonably necessary (in
the reasonable judgment of the Managing Member) to cover (i) obligations or
expenses of the Company at such time or (ii) reserves for working capital and
capital expenditures (taking into account expected revenues) anticipated within
a reasonable period thereafter. Decisions to create, increase, or reduce
reserves shall require the approval of the Managing Member.
10.2. The Company will make distributions (at intervals deemed appropriate by
the Managing Member) to the Members from Available Cash; provided, however,
distributions of Available Cash shall be made any time the Company sells,
finances or refinances any of its assets. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution
to the Members on account of its interest in the Company if such distribution
would violate Sections 18-607 or 18-804 of the DLLCA or any other applicable law
or constitute a default under the Loan Documents. Subject to the foregoing, the
Managing Member will attempt to schedule distributions to cover, at a minimum,
the income tax liability of the Members with respect to such distributions.
10.3 Notwithstanding anything to the contrary set forth in
this Agreement, upon the sale, financing or re-financing of any asset of the
Company including, without limitation, the Property, the net proceeds thereof
shall be distributed to the Members as follows: (i) first, to Presidential, in
an amount equal to the Priority Amount; and (ii) then, to the Members, in
proportion to their membership interest in the Company at the time of the
distribution. For purposes of this Section 10.3, "Priority Amount" shall mean
the lesser of: (x) the full amount of unpaid real estate taxes on the Property,
including interest and penalties thereon, as of the date of this Agreement; and
(y) the amount paid on or before the sale, financing or re-financing of the
Property by the Company to settle all claims for unpaid real estate taxes on the
Property including interest and penalties thereon.
ARTICLE 11. Books; Accounting; Fiscal Year; Bank Accounts.
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11.1. The Company shall keep complete and accurate books of account.
The Managing Member shall cause to be entered in such books all transactions of
or relating to the Company and its business. The Members shall have access to
(and the right to inspect and copy) such books and other Company records at the
principal office of the Company during business hours and upon reasonable
notice.
11.2. The fiscal year of the Company (the "Fiscal Year") shall be the
calendar year.
11.3. As soon as reasonably practicable after the end of each Fiscal
Year, the Managing Member shall cause to be prepared by the Company's
accountants and sent to the Members: (a) an audited financial statement of the
Company's financial position as of the end of such Fiscal Year and a statement
of profits or losses during such Fiscal Year, each prepared, on the accrual
basis in accordance with United States generally accepted accounting principles
consistently applied ("GAAP"); and (b) such income tax information as shall be
necessary or desirable for the Managing Member to prepare its income tax returns
for such Fiscal Year.
11.4. All funds of the Company shall be deposited in a bank account
or accounts in the Company's name. The Managing Member shall determine the
banking institution in which such accounts shall be opened, closed or re-opened.
11.5. All checks and drafts on, or other withdrawals from, any of the
Company's bank accounts shall be signed by the Managing Member.
ARTICLE 12. Limited Liability.
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12.1. Except as otherwise expressly provided by applicable laws,
neither the Members, the Managing Member, nor any of its officers, shall be
personally liable for any debts, obligations, or liabilities whatsoever of the
Company or of each other (whether any such debts, obligations, or liabilities
arise in tort, contract, or otherwise) solely by reason of being an officer or a
Member, or acting (or omitting to act) in such capacities or participating in
the conduct of the business of the Company.
ARTICLE 13. Indemnification.
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13.1. Should officers be elected for the Company, no officer shall be
liable or responsible in damages or otherwise to the Members or to the Company
for acts performed by such officer unless a judgment or other final adjudication
adverse to the Members or the Company establishes (a) that the officer's acts
were committed in bad faith or were the result of deliberate dishonesty and were
material to the cause of action so adjudicated or (b) that such officer
personally gained financial profit or other advantage to which such director or
officer was not legally entitled.
13.2. The Company shall indemnify and hold harmless the officers (if
any), the Members and the Managing Member, from and against (and none of them
shall be liable for) any and all claims and demands asserted against them (and/
or any of them) by reason of being the officers, Members or Managing Member of
the Company, or acting or omitting to act in any such capacity, or otherwise
participating in the conduct of the business of the Company. However, no
indemnification may be made to or on behalf of the Members, the Managing Member,
the officers, or another person if a judgment or other final adjudication
adverse to the Members, the Company, the Managing Member or officer establishes
(a) that such person's acts were committed in bad faith or were the result of
deliberate dishonesty and were material to the cause of action so adjudicated or
(b) that such person personally gained a financial profit or other advantage to
which such person was not legally entitled.
13.3. Sections 13.1 and 13.2 are intended (and shall be interpreted)
to protect the officers (if any), the Managing Member and the Members to the
fullest extent permitted by law.
13.4. Notwithstanding any provision hereof or of any other document
governing the formation, management or operation of the Company to the contrary,
for so long as any Obligations remain outstanding, the following shall govern:
Any indemnification of the officers, the Managing Member and the Members shall
be fully subordinated to any obligations respecting the Property, and shall not
constitute a claim against the Company in the event that cash flow is
insufficient to pay such obligations.
ARTICLE 14. No Third-Party Rights.
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14.1. Nothing in this Agreement, express or implied, is intended: (a)
to confer on any person other than the Members (their directors and officers)
any rights or remedies; or (b) to waive any claim or right of the Members
against any person who is not a party to this Agreement.
ARTICLE 15. Dissolution; Bankruptcy.
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15.1. The Company shall be dissolved and its affairs wound up upon
the earliest 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 unless the Company is continued without dissolution in a
manner permitted by this Agreement or the DLLCA; or (ii) the entry of a decree
of judicial dissolution of the Company under the DLLCA; or (iii) subject Section
15.2, upon the written determination of the Members. 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 (A) to continue the Company and (B)
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.
15.2. Notwithstanding any other provision of this Agreement, for so
long as any Obligations remain outstanding, the Company will not, and the
Members (their officers or directors) or any other person will not cause the
Company to, voluntarily commence a case with respect to itself, as debtor, under
the Federal Bankruptcy Code or any similar federal or state statute without the
prior written consent of the Members.
ARTICLE 16. Settlement Agreement; Assignments; Additional Members.
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16.1. The parties acknowledge that in accordance with the
terms of that certain Settlement Agreement of even date herewith by and between
Presidential, Lichtenstein, the Managing Member and certain other parties (the
"Settlement Agreement"), pursuant to certain pledge agreements described in the
Settlement Agreement, Lichtenstein and the Managing Member have pledged their
membership interests in the Company to Presidential Realty Corporation. Subject
to those pledge agreements and the following, the Members may assign in whole or
in part their limited liability company interest in the Company. 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. If a Member transfers all of its limited liability
company interest in the Company pursuant to this Section, 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 contained in this Agreement to the contrary, the
Managing Member shall have no right to assign or transfer, in whole or in part,
its membership interest in the Company.
ARTICLE 17. Miscellaneous.
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17.1. This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware (without giving effect to principles of
conflicts of laws). To the fullest extent permitted by law, copies of this
Agreement showing the signature of the Managing Member, whether produced by
photographic, digital, computer, or other reproduction, may be used for all
purposes as originals. This Agreement shall be binding upon the successors,
assigns, and legal representatives of the Members and shall inure to the benefit
of and be enforceable by the Members and their respective successors, assigns,
and legal representatives. The headings of this Agreement are for reference only
and shall not limit or otherwise affect the meaning thereof. If any term,
covenant, condition, or provision of this Agreement is determined by a final
judgment to be invalid or unenforceable, at the option of the Members, the
remaining terms, covenants, conditions, and provisions of this Agreement shall
not be affected thereby.
ARTICLE 18. Definitions.
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18.1. The following terms shall have the meanings set forth below in
this Agreement.
"Affiliate" means any person controlling, under common control
with, or controlled by the person in question.
"Bankruptcy" means, with respect to any person, if such person
(i) make 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
Section 18-10(1) and 18-304 of the DLLCA.
"control" means the possession, directly or indirectly, of the
power to cause the direction of the management, policies or activities of a
person or entity, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"law" or "laws" means any law, rule, regulation, order,
statute, ordinance, resolution, regulation, code, decree, judgment, injunction,
mandate or other legally binding requirement of a government entity applicable
in the particular context.
"Obligations" or "Loan" means that certain first mortgage/deed
of trust loan in favor of Lender, as the same may be modified, amended, extended
and/or assigned, which encumber the Property.
"officers" means the officers of the Company, if any,
appointed pursuant to the terms of this Agreement.
"parent" means, with respect to a person, any other person
owning or controlling, directly or indirectly, fifty percent (50%) or more of
the limited liability company interests, partnership interests, or other equity
of such person.
"person" means any individual, corporation, limited liability
company, partnership, joint venture, estate, trust, unincorporated association,
or any other entity, any federal, state, county or municipal government or any
bureau, department or agency thereof and any fiduciary acting in such capacity
on behalf of any of the foregoing.
18.2 Other words and phrases are defined elsewhere in this
Agreement.
18.3 This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof.
18.4 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
[SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT OF IATG PUERTO RICO, LLC]
IN WITNESS WHEREOF, the Managing Member and Members have
executed this Agreement as of the date first above written.
IATG MANAGER, LLC
By: /s/ David Lichtenstein
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Name: David Lichtenstein
Title: Managing Member
PRESIDENTIAL IATG, INC.
By: /s/ Jeffrey F. Joseph
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Name: Jeffrey F. Joseph
Title: President
/s/ David Lichtenstein
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Name: David Lichtenstein
/s/ Lewis Gelbman
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Name: Lewis Gelbman