EXHIBIT 10.06
LIMITED LIABILITY COMPANY AGREEMENT
OF
CEDAR-FRANKLIN VILLAGE LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of CEDAR-FRANKLIN VILLAGE LLC (the
"Company"), is entered into by Cedar-Franklin Village 2 LLC, as the sole equity
member (the "Member"), and Suzanne M. Hay ("Springing Member 1") and Jan Koeman
("Springing Member 2"), as the Springing Members (as defined on Schedule A
hereto). Capitalized terms used and not otherwise defined herein have the
meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as
a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. ss. 18-101 et seq.), as amended from
time to time (the "Act"), and this Agreement, and the Member and Springing
Member 1 and Springing Member 2 hereby agree as follows:
Section 1. Name.
The name of the limited liability company formed hereby is
Cedar-Franklin Village LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at c/o
Cedar Shopping Centers Partnership, L.P., 44 South Bayles Avenue, Port
Washington, NY 11050 or such other location as may hereafter be determined by
the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400 ,
in the City of Wilmington, County of New Castle, Delaware 19808.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is Corporation Service
Company, 2711 Centerville Road, Suite 400in the City of Wilmington, County of
New Castle, Delaware 19808.
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 22 and 23) (a "Member Cessation Event"), Springing Member 1 shall,
without any action of any Person and simultaneously with the Member Cessation
Event, automatically be admitted to the Company as a Special Member and shall
continue the Company without dissolution. If, however, at the time of a Member
Cessation Event, Springing Member 1 has died or is otherwise no longer able to
step into the role of Special Member, then in such event, Springing Member 2
shall, concurrently with the Member Cessation Event, and without any action of
any Person and simultaneously with the Member Cessation Event, automatically be
admitted to the Company as Special Member and shall continue the Company without
dissolution. It is the intent of these provisions that the Company never have
more than one Special Member at any particular point in time. No Special Member
may 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. 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. Pursuant to
Section 18-301 of the Act, a 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. A Special Member, in its capacity as Special
Member, may not bind the Company. Except as required by any mandatory provision
of the Act, a Special Member, in its capacity as Special Member, shall have no
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. In order to implement the admission
to the Company of the Special Member, each of Springing Member 1 and Springing
Member 2shall execute a counterpart to this Agreement. Prior to its admission to
the Company as Special Member, each person acting as a Springing Member 1 or
Springing Member 2 shall not be a member of the Company.
(d) The Company shall at all times have a Springing Member 1 and a
Springing Member 2. No resignation or removal of a Springing Member, and no
appointment of a successor Springing Member, shall be effective unless and until
such successor shall have executed a counterpart to this Agreement and, with
respect to Springing Member 1 only, accepted its appointment as Independent
Director pursuant to Section 10. In the event of a vacancy in the position of
Springing Member 1 or Springing Member 2, the Member shall, as soon as
practicable, appoint a successor Springing Member to fill such vacancy. By
signing this Agreement, a Springing Member agrees that, should such Springing
Member become a Special Member, such Springing Member will be subject to and
bound by the provisions of this Agreement applicable to a Special Member.
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Section 6. Certificates.
Emanuel Tsourounis, II, is hereby designated as an "authorized person"
within the meaning of the Act, and has executed, delivered and filed the
Certificate of Formation of the Company with the Secretary of State of the State
of Delaware. Upon the filing of the Certificate of Formation with the Secretary
of State of the State of Delaware, his powers as an "authorized person" ceased,
and the Member thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the Act.
The Member or an Officer 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 Massachusetts and in any other jurisdiction in which
the Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. Purposes.
(a) Notwithstanding anything to the contrary in this Agreement or in
any other document governing the formation, management or operation of the
Company, the sole purpose to be conducted or promoted by the Company is to
engage in the following activities:
(i) to acquire, own, hold, lease, operate, manage,
maintain, develop and improve, the real property
described in the Loan Documents (the "Property");
(ii) to enter into and perform its obligations under the
Loan Documents;
(iii) to sell, transfer, service, convey, dispose of,
pledge, assign, borrow money against, finance,
refinance or otherwise deal with the Property to the
extent permitted under the Loan Documents; and
(iv) to engage in any lawful act or activity and to
exercise any powers permitted to limited liability
companies organized under the laws of the State of
Delaware that are related or incidental to and
necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
(b) The Company, and the Member, or any Director or Officer on behalf
of the Company, may enter into and perform their obligations under the Basic
Documents and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of any Member, Director, Officer 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 Director or Officer to enter into other agreements
on behalf of the Company.
Section 8. Powers.
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Subject to Section 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Member. Subject to Section 10, the
Member may determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to Section
10. The initial number of Directors shall be three (3), one (1) of which shall
be an Independent Director pursuant to Section 10. Each Director elected,
designated or appointed by the Member shall hold office until a successor is
elected and qualified or until such Director's earlier death, resignation,
expulsion or removal. Each Director shall execute and deliver the Management
Agreement. Directors need not be a Member. The initial Directors designated by
the Member are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to Section 7, the Board of Directors has the
authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority
of the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be; provided, however, that no such
written consent of any Independent Director shall be required for the validity
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of such action by the Board unless, pursuant to the provisions of Section
9(j)(iii), such action would be invalid in the absence of the affirmative vote
or consent of such Independent Director.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees,
each committee to consist of one or more of the
Directors of the Company. The Board may designate one
or more Directors as alternate members of any
committee, who may replace any absent or disqualified
member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at
any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may
unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, and subject to, in all
cases, Sections 9(j) and 10, shall have and may
exercise all the powers and authority of the Board in
the management of the business and affairs of the
Company. Such committee or committees shall have such
name or names as may be determined from time to time
by resolution adopted by the Board. Each committee
shall keep regular minutes of its meetings and report
the same to the Board when required.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Member, and, subject to Section 10, any
vacancy caused by any such removal or expulsion may be filled by action of the
Member.
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(i) Directors as Agents. To the extent of their powers set forth in
this Agreement and subject to Section 9(j), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors, a
Director may not bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted to comply with
certain provisions necessary to qualify the Company
as a "special purpose" entity.
(ii) Notwithstanding anything to the contrary in this
Agreement or in any other document governing the
formation, management or operation of the Company,
for so long as any Obligation is outstanding, neither
the Member nor the Company shall amend, alter, change
any of Sections 1, 5(b), 5(c), 5(d), 6, 7, 8, 9, 10,
14, 16, 20(b), 20(f), 21, 22, 23, 24, 25, 26, 27, 29,
30, 31 or 32 or Schedule A of this Agreement (to the
extent that the terms defined in Schedule A are used
in any of the foregoing sections) (the "Special
Purpose Provisions"), or any other provision of this
or any other document governing the formation,
management or operation of the Company in a manner
that is inconsistent with any of the Special Purpose
Provisions, unless the Lender consents in writing and
the Rating Agency Condition is satisfied. Subject to
this Section 9(j), the Member reserves the right to
amend, alter, change or repeal any provisions
contained in this Agreement in accordance with
Section 32. In the event of any conflict between any
of the Special Purpose Provisions and any other
provision of this or any other document governing the
formation, management or operation of the Company,
the Special Purpose Provisions shall control.
(iii) Notwithstanding any other provision of this Agreement
or any other document governing the formation,
management or operation of the Company, and
notwithstanding any provision of law that otherwise
so empowers the Company, the Member, the Board, any
Officer or any other Person, in addition to any other
limitations set forth in this Agreement, neither the
Member nor the Board nor any Officer nor any other
Person shall be authorized or empowered, nor shall
they permit the Company to, and the Company shall
not, without the prior unanimous written consent of
the Member and the Board (including the Independent
Director), take any Material Action, provided,
however, that the Board may not vote on, or authorize
the taking of, any Material Action, unless there is
at least one Independent Director then serving in
such capacity.
(iv) The Board and the Member shall cause the Company to
do or cause to be done all things necessary to
preserve and keep in full force and effect its
existence, rights (charter and statutory) and
franchises. Notwithstanding anything to the contrary
in this Agreement or in any other document governing
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the formation, management or operation of the
Company, the Board also shall cause the Company to
and the Company shall:
(A) maintain its books, records and bank
accounts separate from those of any other
Person;
(B) at all times hold itself out to the public
and all other Persons as a legal entity
separate from the Member and from any other
Person;
(C) have its own Board of Directors;
(D) file its own tax returns separate from those
of any other Person, except to the extent
that the Company is treated as a
"disregarded entity" for tax purposes and is
not required to file tax returns under
applicable law, and pay any taxes required
to be paid under applicable law;
(E) except as contemplated by the Loan
Documents, not commingle its assets with
assets of any other Person;
(F) conduct its business only in its own name
and comply with all organizational
formalities necessary to maintain its
separate existence;
(G) maintain separate financial statements,
showing its assets and liabilities separate
and apart from those of any other Person and
not have its assets listed on any financial
statement of any other Person; provided,
however, that in lieu thereof, the Company's
assets may be included in a consolidated
financial statement of its Affiliate
provided that (i) appropriate notation shall
be made on such consolidated financial
statements to indicate the separateness of
the Company from such Affiliate and to
indicate that the Company's assets and
credit are not available to satisfy the
debts and other obligations of such
Affiliate or any other Person and (ii) such
assets shall also be listed on the Company's
own separate balance sheet;
(H) pay its own liabilities and expenses only
out of its own funds;
(I) except for capital contributions or capital
distributions permitted under the terms and
conditions of this Agreement and properly
reflected on the books and records of the
Company, not enter into any transaction with
an Affiliate of the Company except on
commercially reasonable terms similar to
those available to unaffiliated parties in
an arm's-length transaction;
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(J) pay the salaries of its own employees, if
any, only from its own funds;
(K) not hold out its credit or assets as being
available to satisfy the obligations of any
other Person;
(L) allocate fairly and reasonably any overhead
expenses that are shared with an affiliate,
including for shared office space and for
services performed by an employee of an
affiliate;
(M) use separate stationery, invoices and checks
bearing its own name;
(N) except as contemplated by the Loan
Documents, not pledge its assets to secure
the obligations of any other Person;
(O) correct any known misunderstanding regarding
its separate identity and not identify
itself as a department or division of any
other Person;
(P) maintain adequate capital and a sufficient
number of employees in light of its
contemplated business purpose, transactions
and liabilities; provided, however, that the
foregoing shall not require the Member to
make additional capital contributions to the
Company;
(Q) cause its Board of Directors to meet at
least annually or act pursuant to written
consent and keep minutes of such meetings
and actions and observe all other Delaware
limited liability company formalities;
(R) not acquire any obligation or securities of
the Member or of any Affiliate of the
Company; and
(S) cause the Directors, Officers, agents and
other representatives of the Company to act
at all times with respect to the Company
consistently and in furtherance of the
foregoing and in the best interests of the
Company.
Failure of the Company, or the Member or Board on
behalf of the Company, to comply with any of the
foregoing covenants or any other covenants contained
in this Agreement shall not affect the status of the
Company as a separate legal entity or the limited
liability of the Member or the Directors.
(v) Notwithstanding anything to the contrary in this
Agreement or in any other document governing the
formation, management or operation of the Company,
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the Board shall not cause or permit the Company to
and the Company shall not:
(A) except as contemplated by the Loan
Documents, guarantee any obligation of any
Person, including any Affiliate or become
obligated for the debts of any other Person
or hold out its credit as being available to
pay the obligations of any other Person;
(B) engage, directly or indirectly, in any
business other than as required or permitted
to be performed under Section 7, the Basic
Documents or this Section 9(j);
(C) incur, create or assume any indebtedness or
liabilities other than indebtedness and
liabilities incurred in the ordinary course
of its business that are related to the
ownership and operation of the Property and
are expressly permitted under the Loan
Documents;
(D) make or permit to remain outstanding any
loan or advance to, or own or acquire any
stock or securities of, any Person, except
that the Company may invest in those
investments permitted under the Loan
Documents and may make any advance required
or expressly permitted to be made pursuant
to any provisions of the Loan Documents and
permit the same to remain outstanding in
accordance with such provisions;
(E) to the fullest extent permitted by law,
engage in any dissolution, liquidation,
consolidation, merger, sale or other
transfer of any of its assets outside the
ordinary course of the Company's business
other than such activities as are expressly
permitted pursuant to any the Loan
Documents;
(F) buy or hold evidence of indebtedness issued
by any other Person (other than cash or
investment-grade securities);
(G) form, acquire or hold any subsidiary
(whether corporate, partnership, limited
liability company or other) or own any
equity interest in any other entity; or
(H) own any asset or property other than the
Property and incidental personal property
necessary for the ownership or operation of
the Property.
Section 10. Independent Director.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one (1) Independent Director who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Director shall consider only the
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interests of the Company and its creditors in acting or otherwise voting on the
matters referred to in Section 9(j)(iii). No resignation or removal of an
Independent Director, and no appointment of a successor Independent Director,
shall be effective until such successor (i) shall have accepted his or her
appointment as an Independent Director by a written instrument, which may be a
counterpart signature page to the Management Agreement, and (ii) shall have
executed a counterpart to this Agreement as required by Section 5(d). In the
event of a vacancy in the position of Independent Director, the Member shall, as
soon as practicable, appoint a successor Independent Director. All right, power
and authority of the Independent Director shall be limited to the extent
necessary to exercise those rights and perform those duties specifically set
forth in this Agreement. Except as provided in the second sentence of this
Section 10, in exercising their rights and performing their duties under this
Agreement, an Independent Director shall have a fiduciary duty of loyalty and
care similar to that of a director of a business corporation organized under the
General Corporation Law of the State of Delaware. No Independent Director shall
at any time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. The initial Officers of the Company shall be designated
by the Member. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board may appoint such other Officers and agents as
it shall deem necessary or advisable who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the Board. The Officers
of the Company shall hold office until their successors are chosen and
qualified. Any Officer may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board. Any vacancy occurring in any office
of the Company shall be filled by the Board. The initial Officers of the Company
designated by the Member are listed on Schedule E hereto.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
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have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(j), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Member nor any Director shall be
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obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member, Special Member or Director of the Company.
Section 13. Capital Contributions.
The Member has contributed to the Company the property listed on
Schedule B attached hereto. In accordance with Section 5(c), the Special Member
shall not be required to make any capital contributions to the Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule B of this Agreement. The Member and the Special
Member 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.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions of capital shall be made to the Member at the
times and in the aggregate amounts determined by the Board. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution of capital to the Member on account of its interest in the
Company if such distribution would violate the Act or any other applicable law
or any Basic Document or would constitute a default under the Loan Documents.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
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Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Company for such fiscal
quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Member, within 90 days after the end of each fiscal year, an
unaudited report setting forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year;
and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants, if any, to prepare and
transmit to the Member as promptly as possible any such tax information as may
be reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
Section 19. Other Business.
The Member, the Special Member and any Affiliate of the Member or the
Special Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others notwithstanding any provision to the contrary at law or at equity.
The Company shall not have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement.
Section 20. Exculpation and Indemnification.
(a) Neither the Member nor the Special Member nor any Officer,
Director, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Member or the Special Member (collectively, the
"Covered Persons") shall, to the fullest extent permitted by law, be liable to
the Company or any other Person that is a party to or is otherwise bound by this
Agreement, for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
13
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 20 by the Company shall be provided out of
and to the extent of Company assets only, and the Member and the Special Member
shall not have personal liability on account thereof; and provided further, that
so long as any Obligation is outstanding, no indemnity payment from funds of the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section 20 shall be payable from amounts allocable to any
other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered Person is
not entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person bound by this Agreement
acting under this Agreement shall not be liable to the Company or to any other
Covered Person for its good faith reliance on the provisions of this Agreement
or any approval or authorization granted by the Company or any other Covered
Person. The provisions of this Agreement, to the extent that they restrict the
duties and liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the Member, the Springing Members and the Special Member
to replace such other duties and liabilities of such Covered Person.
(f) Notwithstanding the foregoing provisions, any indemnification set
forth herein shall be fully subordinate to the Loan and, to the fullest extent
permitted by law, shall not constitute a claim against the Company in the event
that the Company's cash flow is insufficient to pay its Obligations.
(g) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
14
Section 21. Assignments.
(a) Subject to Section 23 and any transfer restrictions contained in
the Loan Documents, the Member may assign its limited liability company interest
in the Company. Subject to Section 23, if the Member transfers any of its
limited liability company interest in the Company pursuant to this Section 21,
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 the Member transfers all of its limited
liability company interest in the Company, 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. Any
successor to a Member by merger or consolidation in compliance with the Basic
Documents shall, without further act, be the Member hereunder, and such merger
or consolidation shall not constitute an assignment for purposes of this
Agreement and the Company shall continue without dissolution.
(b) Except as permitted under the Loan documents, for so long as any
Obligation remains outstanding, the Company shall always have one and only one
member.
Section 22. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Basic Documents and if the Lender consents in
writing and the Rating Agency Condition is satisfied and if an additional member
is admitted to the Company pursuant to Section 23. If the Member is permitted to
resign pursuant to this Section 22, an additional member of the Company shall be
admitted to the Company, subject to Section 23, 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. Such admission shall be deemed effective immediately prior to the
resignation and, immediately following such admission, the resigning Member
shall cease to be a member of the Company.
Section 23. Admission of Additional Members and Transfers of Indirect
Interests.
(a) One or more additional members of the Company may be admitted to
the Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, no additional Member may be admitted to the
Company pursuant to Sections 21, 22 or 23, other than pursuant to Section 24(a)
or Section 5(c), and no transfer of any direct or indirect interest in the
Company may be made that results in a Change in Control of the Company, except
as may be expressly provided otherwise in the Loan Documents, unless (1), an
acceptable nonconsolidation opinion is delivered to the Lender and to each
Rating Agency concerning, as applicable, the Company, the new transferee and/or
their respective owners, (2) the Rating Agency Condition is satisfied and (3)
the Lender consents in writing.
Section 24. Dissolution.
15
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first 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 in the Company unless the Company is continued without
dissolution in a manner required under Section 5(c) or this Section 24(a) or
permitted by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. 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
(other than (i) upon an assignment by the Member of all of its limited liability
company interest in the Company and the admission of the transferee pursuant to
Sections 21 and 23, or (ii) the resignation of the Member and the admission of
an additional member of the Company pursuant to Sections 22 and 23), 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.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the Member or
Special Member or additional member, respectively, to cease to be a member of
the Company and upon the occurrence of such an event, the Company shall continue
without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Member waive any right it might have to agree in writing
to dissolve the Company upon the Bankruptcy of the Member or Special Member or
the occurrence of an event that causes the Member or Special Member to cease to
be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Certificate of Formation
shall have been canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
To the fullest extent permitted by law, each of the Member, the Special
Member, and the Springing Members hereby irrevocably waives any right or power
that such Person might have to cause the Company or any of its assets to be
partitioned, to cause the appointment of a receiver for all or any portion of
the assets of the Company, to compel any sale of all or any portion of the
16
assets of the Company pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The Member shall not have
any interest in any specific assets of the Company, and the Member shall not
have the status of a creditor with respect to any distribution pursuant to
Section 16 hereof. The interest of the Member in the Company is personal
property.
Section 26. Tax Status.
It is intended that the Company shall be a disregarded entity for
federal, state, and local income tax purposes.
Section 27. Benefits of Agreement; No Third-Party Rights.
Except for the Lender, its successors or assigns as holders of the
Loan with respect to the Special Purpose Provisions, (1) none of the provisions
of this Agreement shall be for the benefit of or enforceable by any creditor of
the Company or by any creditor of the Member or a Special Member, and (2)
nothing in this Agreement shall be deemed to create any right in any Person
(other than Covered Persons) not a party hereto, and this Agreement shall not be
construed in any respect to be a contract in whole or in part for the benefit of
any third Person, except as provided in Section 30. The Lender, its successors
or assigns are intended third-party beneficiaries of this Agreement and may
enforce the Special Purpose Provisions.
Section 28. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 29. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 30. Binding Agreement.
The Member agrees that this Agreement, including, without limitation,
the Special Purpose Provisions, constitutes a legal, valid and binding agreement
of the Member, and is enforceable against the Member by the Independent
Directors, in accordance with its terms. In addition, the Independent Directors
shall be intended beneficiaries of this Agreement.
Section 31. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
17
Section 32. Amendments.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Lender consents in writing and the
Rating Agency Condition is satisfied except: (i) to cure any ambiguity or (ii)
to convert or supplement any provision in a manner consistent with the intent of
this Agreement and the other Basic Documents.
Section 33. Counterparts.
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.
Section 34. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
Section 35. Effectiveness.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of October 22, 2004.
Section 36. Interests and Certificates.
(a) Interests
Each limited liability company interest in the Company shall constitute
a "security" within the meaning of (i) Section 8-102(a)(15) of the Uniform
Commercial Code as in effect from time to time in the States of Delaware and New
York and (ii) the Uniform Commercial Code of any other applicable jurisdiction
that now or hereafter substantially includes the 1994 revisions to Article 8
thereof as adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar Association
on February 14, 1995. Notwithstanding any provision of this Agreement to the
contrary, to the extent that any provision of this Agreement is inconsistent
with any non-waivable provision of Article 8 of the Uniform Commercial Code as
in effect in the State of Delaware (6 Del C. ss. 8-101, et. seq.) (the "UCC"),
such provision of Article 8 of the UCC shall be controlling.
18
(b) Certificates.
(i) Upon the issuance of limited liability company
interests in the Company to any Person in accordance
with the provisions of this Agreement, without any
further act, vote or approval of any Member,
Director, Officer or any Person, the Company shall
issue one or more non-negotiable certificates in the
name of such Person substantially in the form of
Exhibit A hereto (a "Certificate"), which evidences
the ownership of the limited liability company
interests in the Company of such Person. Each such
Certificate shall be denominated in terms of the
percentage of the limited liability company interests
in the Company evidenced by such Certificate and
shall be signed by an Officer on behalf of the
Company.
(ii) Without any further act, vote or approval of any
Member, Director, Officer or any Person, the Company
shall issue a new Certificate in place of any
Certificate previously issued if the holder of the
limited liability company interests in the Company
represented by such Certificate, as reflected on the
books and records of the Company:
(A) makes proof by affidavit, in form and
substance satisfactory to the Company, that
such previously issued Certificate has been
lost, stolen or destroyed;
(B) requests the issuance of a new Certificate
before the Company has notice that such
previously issued Certificate has been
acquired by a purchaser for value in good
faith and without notice of an adverse
claim;
(C) if requested by the Company, delivers to the
Company a bond, in form and substance
satisfactory to the Company, with such
surety or sureties as the Company may
direct, to indemnify the Company against any
claim that may be made on account of the
alleged loss, destruction or theft of the
previously issued Certificate; and
(D) satisfies any other reasonable requirements
imposed by the Company.
(iii) Upon a Member's transfer in accordance with the
provisions of this Agreement of any or all limited
liability company interests in the Company
represented by a Certificate, the transferee of such
limited liability company interests in the Company
shall deliver such Certificate to the Company for
cancellation (executed by such transferee on the
reverse side thereof), and the Company shall
thereupon issue a new Certificate to such transferee
for the percentage of limited liability company
interests in the Company being transferred and, if
applicable, cause to be issued to such Member a new
Certificate for that percentage of limited liability
19
company interests in the Company that were
represented by the canceled Certificate and that are
not being transferred.
(c) Registration of Limited Liability Company Interests. The Company
shall maintain books for the purpose of registering the transfer of limited
liability company interests. Notwithstanding any provision of this Agreement to
the contrary, a transfer of limited liability company interests requires
delivery of an endorsed Certificate and shall be effective upon registration of
such transfer in the books of the Company.
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Limited Liability Company Agreement as of the
22nd day of October, 2004.
MEMBER:
CEDAR-FRANKLIN VILLAGE 2 LLC
By: CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P., its sole member
By: Cedar Shopping Centers, Inc., its
general partner
By:
-----------------------------------
Name: Brenda J. Walker
Title: Vice President
SPRINGING MEMBERS:
--------------------------------
Name: Suzanne M. Hay
Springing Member 1
--------------------------------
Name: Jan Koeman
Springing Member 2
S-1
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person or any Person who has a familial relationship,
by blood, marriage or otherwise with the Company or any Affiliate of the
Company.
"Agreement" means this Limited Liability Company Agreement of the
Company, together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"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 18-101(1) and 18-304 of the Act.
"Basic Documents" means this Agreement, the Management Agreement, the
Loan Documents, and all documents and certificates contemplated thereby or
delivered in connection therewith.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
A-1
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on July 16,
2004, as amended or amended and restated from time to time.
"Change in Control of the Company" means (a) a transfer resulting in a
Person that owned less than 49% of the direct or indirect equity interests in
the Company upon the closing of the Loan owning 49% or more of such equity
interests after the transfer, (b) a transfer or transfers after the closing of
the Loan that aggregate of 49% or more of the direct or indirect equity
interests in the Company or (c) a change in the equity owners that Control the
Company.
"Company" means Cedar-Franklin Village LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 20(a).
"Directors" means the Persons elected to the Board of Directors from
time to time by the Member, including the Independent Directors, in their
capacity as managers of the Company. A Director is hereby designated as a
"manager" of the Company within the meaning of Section 18-101(10) of the Act.
"Independent Director" means a natural person who is not at the time of
initial appointment as a director or at any time while serving as a director or
manager of the Company and has not been at any time during the five (5) years
preceding such initial appointment:
(a) a stockholder, director (with the exception of serving as an
Independent Director of the Company), officer, trustee,
employee, partner, member, attorney or counsel of Company, the
Member or any Affiliate of either of them;
(b) a creditor, customer, supplier, or other person who derives
any of its purchases or revenues from its activities with the
Member, the Company or any Affiliate of either of them;
(c) a Person Controlling or under common Control with any Person
excluded from serving as Independent Director under (a) or
(b); or
(d) a member of the immediate family by blood or marriage of any
Person excluded from serving as Independent Director under (a)
or (b).
A natural person who satisfies the foregoing definition other than subparagraph
(b) shall not be disqualified from serving as an Independent Director of the
Company if such individual is an Independent Director provided by a
nationally-recognized company that provides professional independent directors
A-2
(a "Professional Independent Director") and other corporate services in the
ordinary course of its business. A natural person who otherwise satisfies the
foregoing definition other than subparagraph (a) by reason of being the
independent director of a "special purpose entity" affiliated with the Company
shall not be disqualified from serving as an Independent Director of the Company
if such individual is either (i) a Professional Independent Director or (ii) the
fees that such individual earns from serving as independent director of
affiliates of the Company constitute in the aggregate less than five percent
(5%) of such individual's annual income. Notwithstanding the immediately
preceding sentence, an Independent Director may not simultaneously serve as
Independent Director of the Company and independent director of a special
purpose entity that owns a direct or indirect equity interest in the Company or
a direct or indirect interest in any co-borrower with the Company.
For purposes of this paragraph, a "special purpose entity" is an entity, whose
organizational documents contain restrictions on its activities and impose
requirements intended to preserve such entity's separateness that are
substantially similar to the Special Purpose Provisions of this Agreement.
"Lender" means Eurohypo AG, New York Branch, together with its
successors and assigns.
"Loan" means that certain loan in the amount of $43,500,000 to be made
by Lender to the Company in accordance with the terms, conditions and provisions
of the Loan Documents.
"Loan Agreement" means that certain Loan Agreement dated _____, 2004,
by and between the Company and Lender.
"Loan Documents" has the meaning set forth in the Loan Agreement.
"Management Agreement" means the agreement of the Directors in
substantially the form attached hereto as Schedule C. The Management Agreement
shall be deemed incorporated into, and a part of, this Agreement.
"Material Action" means to file any insolvency, or reorganization case
or proceeding, to institute proceedings to have the Company be adjudicated
bankrupt or insolvent, to institute proceedings under any applicable insolvency
law, to seek any relief under any law relating to relief from debts or the
protection of debtors, to consent to the filing or institution of bankruptcy or
insolvency proceedings against the Company, to file a petition seeking, or
consent to, reorganization or relief with respect to the Company under any
applicable federal or state law relating to bankruptcy or insolvency, to seek or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian, or any similar official of or for the Company or a
substantial part of its property, to make any assignment for the benefit of
creditors of the Company, to admit in writing the Company's inability to pay its
debts generally as they become due, or to take action in furtherance of any of
the foregoing.
"Member" means Cedar-Franklin Village 2 LLC, as the initial member of
the Company, and includes any Person admitted as an additional member of the
Company or a substitute member of the Company pursuant to the provisions of this
A-3
Agreement, each in its capacity as a member of the Company; provided, however,
the term "Member" shall not include the Special Member or the Springing Members.
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company under or in connection with the Loan Documents.
"Officer" means an officer of the Company described in Section 11.
"Officer's Certificate" means a certificate signed by any Officer of
the Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Property" shall have the meaning given thereto in Section 7(a) of this
Agreement.
"Rating Agency" has the meaning assigned to that term in the Loan
Documents, or if no such defined term exists, means a nationally-recognized
rating agency that is rating or that has rated the Loan or any pool of loans of
which the Loan forms a part or any securities issued in connection with a
securitization of the Loan or such pool of loans.
"Rating Agency Condition" means with respect to any action taken at any
time after the loan evidenced and secured by the Loan Documents has been sold or
assigned to a securitization trust, that each Rating Agency shall have notified
the Company in writing that such action will not result in a reduction,
withdrawal, downgrade or qualification of the then current rating by such Rating
Agency of the Loan or any pool of loans of which the Loan forms a part, or of
any of securities issued by such securitization trust.
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 5(c), a person acting as either
Springing Member 1 or Springing Member 2, in such person's capacity as a member
of the Company. A Special Member shall only have the rights and duties expressly
set forth in this Agreement.
"Special Purpose Entity" means an entity, whose organizational
documents contain restrictions on its purpose and activities and impose
requirements intended to preserve the its separateness that are substantially
similar to the Special Purpose Provisions of this Agreement.
"Springing Member" means a Person who is not a member of the Company
but who has signed this Agreement in order that, upon the conditions described
in Section 5(c), such Person can become the Special Member without any delay in
order that at all times the Company shall have at least one member.
A-4
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
A-5
SCHEDULE B
Member
- -------------------------- -------------------------------- --------------------------- ----------------------------
Name Mailing Address Capital Contribution Membership Interest
- -------------------------- -------------------------------- --------------------------- ----------------------------
Cedar-Franklin Village c/o Cedar Shopping Centers
2 LLC Partnership, L.P [] 100%
44 South Bayles Avenue, Suite
304, Port Washington, NY 11050
- -------------------------- -------------------------------- --------------------------- ----------------------------
B-1
SCHEDULE C
Management Agreement
______________________ __, 2004
Cedar-Franklin Village LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue, Suite 304
Port Washington, NY 11050
Re: Management Agreement - Cedar Franklin Village LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of Cedar-Franklin Village LLC, a Delaware
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of July 16 , 2004, as it
may be amended or restated from time to time (the "LLC Agreement"), hereby agree
as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Director is
designated or until such Person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining an involuntary case against the Company under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Company or any substantial part of the property of the Company, or to the
fullest extent permitted by law, ordering the winding up or liquidation of the
affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
C-1
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
C-2
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
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Leo S. Ullman
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Brenda J. Walker
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Suzanne M. Hay
------------------
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C-3
SCHEDULE D
DIRECTORS
---------
1. Leo S. Ullman
2. Brenda J. Walker
3. Suzanne M. Hay
SCHEDULE E
OFFICERS TITLE
Leo S. Ullman President
Brenda J. Walker Vice President and Treasurer
Stuart H. Widowski Secretary
Lise S. Oelbaum Assistant Secretary
Exhibit A
CERTIFICATE FOR LIMITED LIABILITY COMPANY INTERESTS IN CEDAR-FRANKLIN VILLAGE
LLC
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE. THE HOLDER OF
THIS CERTIFICATE, BY ITS ACCEPTANCE HEREOF, REPRESENTS THAT IT IS ACQUIRING THIS
SECURITY FOR INVESTMENT AND NOT WITH A VIEW TO ANY SALE OR DISTRIBUTION HEREOF.
ANY TRANSFER OF THIS CERTIFICATE OR ANY LIMITED LIABILITY COMPANY INTEREST
REPRESENTED HEREBY IS SUBJECT TO THE TERMS AND CONDITIONS OF THE LIMITED
LIABILITY COMPANY AGREEMENT (AS DEFINED BELOW).
Certificate Number 001 100% Percentage Interest
Cedar-Franklin Village LLC, a Delaware limited liability company (the
"Company"), hereby certifies that Cedar-Franklin Village 2 LLC (together with
any assignee of this Certificate, the "Holder") is the registered owner of 100
percent of the limited liability company interests in the Company. The rights,
powers, preferences, restrictions and limitations of the limited liability
company interests in the Company are set forth in, and this Certificate and the
limited liability company interests in the Company represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the Limited
Liability Company Agreement of the Company dated as of July 16, 2004, as the
same may be further amended or restated from time to time (the "Limited
Liability Company Agreement"). By acceptance of this Certificate, and as a
condition to being entitled to any rights and/or benefits with respect to the
limited liability company interests evidenced hereby, the Holder is deemed to
have agreed to comply with and be bound by all the terms and conditions of the
Limited Liability Company Agreement. The Company will furnish a copy of the
Limited Liability Company Agreement to the Holder without charge upon written
request to the Company at its principal place of business. Transfer of any or
all of the limited liability company interests in the Company evidenced by this
Certificate is subject to certain restrictions in the Limited Liability Company
Agreement and can be effected only after compliance with all of those
restrictions and the presentation to the Company of the Certificate, accompanied
by an assignment in the form appearing on the reverse side of this Certificate,
duly completed and executed by and on behalf of the transferor in such Transfer,
and an application for transfer in the form appearing on the reverse side of
this Certificate, duly completed and executed by and on behalf of the transferee
in such Transfer.
Each limited liability company interest in the Company shall constitute
a "security" within the meaning of (i) Section 8-102(a)(15) of the Uniform
Commercial Code as in effect from time to time in the States of Delaware and New
York and (ii) the Uniform Commercial Code of any other applicable jurisdiction
that now or hereafter substantially includes the 1994 revisions to Article 8
thereof as adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar Association
on February 14, 1995 (and each limited liability company interest in the Company
shall be treated as such a "security" for all purposes, including, without
limitation perfection of the security interest therein under Article 8 of each
applicable Uniform Commercial Code).
This Certificate and the limited liability company interests evidenced
hereby shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Certificate to
be executed as of the date set forth below.
CEDAR FRANKLIN VILLAGE LLC
Dated: _____________________ By:
------------------
Name: Brenda J. Walker
Title: Vice President
(REVERSE SIDE OF CERTIFICATE)
ASSIGNMENT OF INTEREST
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________________________________ (print or typewrite name of
transferee), __________________ (insert Social Security or other taxpayer
identification number of transferee), the following specified percentage of
limited liability company interests in the Company: ______________ (identify the
percentage interest being transferred) effective as of the date specified in the
Application for Transfer of Interests below, and irrevocably constitutes and
appoints __________________________ and its authorized officers, as
attorney-in-fact, to transfer the same on the books and records of the Company,
with full power of substitution in the premises.
Dated: _________________ Signature: __________________________________
(Transferor)
Address: __________________________________
APPLICATION FOR TRANSFER OF INTERESTS
The undersigned applicant (the "Applicant") hereby (a) applies for a
transfer of the percentage of limited liability company interests in the Company
described above (the "Transfer") and applies to be admitted to the Company as a
substitute member of the Company, (b) agrees to comply with and be bound by all
of the terms and provisions of the Limited Liability Company Agreement, (c)
represents that the Transfer complies with the terms and conditions of the
Limited Liability Company Agreement, (d) represents that the Transfer does not
violate any applicable laws and regulations, and (e) agrees to execute and
acknowledge such instruments (including, without limitation, a counterpart of
the Limited Liability Company Agreement), in form and substance satisfactory to
the Company, as the Company reasonably deems necessary or desirable to effect
the Applicant's admission to the Company as a substitute member of the Company
and to confirm the agreement of the Applicant to be bound by all the terms and
provisions of the Limited Liability Company Agreement with respect to the
limited liability company interests in the Company described above. Initially
capitalized terms used herein and not otherwise defined herein are used as
defined in the Limited Liability Company Agreement.
The Applicant directs that the foregoing Transfer and the Applicant's
admission to the Company as a Substitute Member shall be effective as of
______________________________.
Name of Transferee (Print)
______________________________
Dated: ___________________ Signature: ________________________________
(Transferee)
Address: ________________________________
The Company has determined (a) that the Transfer described above is permitted by
the Limited Liability Company Agreement, (b) hereby agrees to effect such
Transfer and the admission of the Applicant as a substitute member of the
Company effective as of the date and time directed above, and (c) agrees to
record, as promptly as possible, in the books and records of the Company the
admission of the Applicant as a substitute member.
CEDAR-FRANKLIN VILLAGE LLC
By:
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Name:
Title: