Gate Categorize (Energy) Documents,Limited Liability Company Agreement [Amended and Restated] (2015)Full Document 

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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

ARC HOSPITALITY PORTFOLIO I HOLDCO, LLC

AMONG

AMERICAN REALTY CAPITAL HOSPITALITY PORTFOLIO MEMBER, LP,

W2007 Equity Inns Senior Mezz, LLC

and

WILLIAM G. POPEO

Dated: February 27, 2015

IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, THE LIMITED LIABILITY COMPANY INTERESTS DESCRIBED IN AND ISSUED PURSUANT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT (AS DEFINED HEREIN) OR THE SECURITIES LAWS OF ANY STATE OR THE DISTRICT OF COLUMBIA. ACCORDINGLY, NO SUCH LIMITED LIABILITY COMPANY INTEREST MAY BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT AND ANY APPLICABLE FEDERAL OR STATE SECURITIES LAWS. ANY VIOLATION OF SUCH PROVISIONS COULD EXPOSE THE SELLING MEMBER AND THE COMPANY TO LIABILITY.

INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. IN MAKING THE DECISION WHETHER TO BE A MEMBER IN THE COMPANY INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE LIMITED LIABILITY COMPANY INTERESTS.

TABLE OF CONTENTS

Page
ARTICLE 1 DEFINITIONS 2
1.1 Definitions 2
1.2 Terms Generally 19
ARTICLE 2 THE COMPANY AND ITS BUSINESS 20
2.1 Members; Continuation of the Company 20
2.2 Company Name 20
2.3 Term 20
2.4 Filing of Amendments to the Certificate 20
2.5 Purpose 20
2.6 Principal Office; Registered Agent 20
2.7 Classes of Members 20
2.8 Names and Addresses of the Members 22
2.9 Authorized Persons 23
2.10 Representations by the Class B Member 23
2.11 Representations by the Class A Member 25
2.12 Certain Tax Matters 26
ARTICLE 3 MANAGEMENT OF COMPANY BUSINESS; POWERS AND DUTIES OF THE MEMBERS 28
3.1 Management of the Company Business 28
3.2 Appointment of Initial Managing Member 28
3.3 Class A Member’s Rights Following a Changeover Event 28
3.4 Buy/Sell Following a Changeover Event; Remedy Not Exclusive 31
3.5 The Class B Member’s Rights Following a Changeover Event 34
3.6 Significant Decisions 35
3.7 Class B Member Affiliate Contracts 37
3.8 Cooperation 37
3.9 The Class A Member’s Right to Cure Senior Loan Defaults 38
ARTICLE 4 RIGHTS AND DUTIES OF MEMBERS 38
4.1 Duties and Obligations of the Class B Member 38
4.2 Prohibition of Other Activities of the Class B Member 39
4.3 Limitation on Member Liability; Indemnification 39
4.4 Compensation of Members and their Affiliates 40
4.5 Use of Company Property 40
4.6 Tax Contests 40
4.7 Duty of the Class A Member 41
ARTICLE 5 BOOKS AND RECORDS; ANNUAL REPORTS; EXPENSES AND OTHER MATTERS 41
5.1 Books of Account 41
5.2 Availability of Books of Account 41
5.3 Annual Reports and Statements; Annual Budgets 42
5.4 Class A Member’s Expenses 42
5.5 Cash Management Account 43

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5.6 Plan Assets 43
5.7 Insurance 43
5.8 Casualty/Condemnation 44
5.9 Existence; Compliance with Legal Requirements 44
5.10 Impositions and Other Claims 44
5.11 Litigation 45
5.12 Access to Properties 45
5.13 Notice of Default 45
5.14 Intentionally Omitted 45
5.15 Conduct of Business 45
5.16 Standard of Operation 45
5.17 No Sales of Assets 46
5.18 Compliance with Senior Loans 46
5.19 Intentionally Omitted 46
5.20 Prohibited Persons 46
5.21 Forgiveness of Debt 46
ARTICLE 6 CAPITAL CONTRIBUTIONS, LOANS AND LIABILITIES 46
6.1 Initial Capital Contributions of the Members 46
6.2 Protective Capital/Additional Capital 46
6.3 Application of Capital 48
6.4 Capital of the Company 48
ARTICLE 7 INTENTIONALLY OMITTED 48
ARTICLE 8 APPLICATIONS AND DISTRIBUTIONS OF AVAILABLE CASH; REDEMPTION 48
8.1 Distributions of Cash 48
8.2 Sales; Financings; Qualified Capital Raises 49
8.3 Redemption Right 49
8.4 Distribution of Capital Event Proceeds 50
8.5 Distribution After Changeover Event 50
ARTICLE 9 TRANSFER OF COMPANY INTERESTS 50
9.1 Restrictions on Transfers by the Class B Member 50
9.2 Transfers by the Class A Member 51
9.3 Assignment Binding on Company 52
9.4 Bankruptcy of a Member 52
9.5 Substituted Members 52
9.6 Acceptance of Prior Acts 53
9.7 Additional Limitations 53
9.8 Restraining Order; Specific Performance; Other Remedies 53
ARTICLE 10 DISSOLUTION OF THE COMPANY; WINDING UP AND DISTRIBUTION OF ASSETS 54
10.1 Dissolution 54

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10.2 Winding Up 54
10.3 Distribution of Assets 55
ARTICLE 11 AMENDMENTS 55
11.1 Amendments 55
11.2 Additional Members 56
ARTICLE 12 MISCELLANEOUS 56
12.1 Further Assurances 56
12.2 Notices 56
12.3 Remedies of the Class B Member 57
12.4 Exculpation 57
12.5 Headings and Captions 57
12.6 Variance of Pronouns 57
12.7 Counterparts 57
12.8 Governing Law 57
12.9 Consent to Jurisdiction 57
12.10 Arbitration 58
12.11 Partition 59
12.12 Invalidity 59
12.13 Successors and Assigns 59
12.14 Entire Agreement 59
12.15 Waivers 59
12.16 No Brokers 59
12.17 Press Releases 59
12.18 No Third Party Beneficiaries 60
12.19 Construction of Documents 60
12.20 Time of Essence 60

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SCHEDULES

Schedule A Properties
Schedule 1.1(a) Allocated Amounts
Schedule 1.1(b) Mortgage Loan Documents
Schedule 1.1(c) First Mezzanine Loan Documents
Schedule 5.15(a) Special Purpose Covenants
Schedule 5.15(b) Anti-Terrorism and Anti-Money Laundering Laws; Embargoed Persons
Schedule 6.1 Initial Capital Contributions and Percentage Interests of the Members

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Amended and Restated LIMITED LIABILITY COMPANY AGREEMENT
OF
ARC HOSPITALITY PORTFOLIO I HOLDCO, LLC

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of February 27, 2014, is made by and among AMERICAN REALTY CAPITAL HOSPITALITY PORTFOLIO MEMBER, LP, a Delaware limited partnership (together with its successors and permitted assigns each in such Person’s capacity as a member of the Company, the “Class B Member”), W2007 Equity Inns Senior Mezz, LLC, a Delaware limited liability company (together with its successors and permitted assigns each in such Person’s capacity as a member of the Company, the “Class A Member”), and WILLIAM G. POPEO, as the initial Special Member.

RECITALS

WHEREAS, the Company (as defined herein) was formed under the Act pursuant to a Certificate of Formation of the Company, which was filed with the Secretary of State of the State of Delaware on October 7, 2014, and that certain Limited Liability Company Agreement, dated as of November 7, 2014, by the Class B Member, as the sole member (the “Existing LLC Agreement”);

WHEREAS, the Company (i) is the ninety-nine percent (99%) limited partner of ARC Hospitality Portfolio I Mezz, LP, a Delaware limited partnership (the “First Mezzanine Borrower”), and (ii) is the sole member of ARC Hospitality Portfolio I Mezz GP, LLC, a Delaware limited liability company (the “Mezzanine GP”), which in turn is the one percent (1%) general partner of First Mezzanine Borrower;

WHEREAS, the First Mezzanine Borrower is (i) the sole member of each of ARC Hospitality Portfolio I Owner, LLC, a Delaware limited liability company (“LLC Borrower”), ARC Hospitality Portfolio I BHGL Owner, LLC, a Delaware limited liability company (“BHGL Borrower”), ARC Hospitality Portfolio I PXGL Owner, LLC, a Delaware limited liability company (“PXGL Borrower”), ARC Hospitality Portfolio I GBGL Owner, LLC, a Delaware limited liability company (“GBGL Borrower”), ARC Hospitality Portfolio I NFGL Owner, LLC, a Delaware limited liability company (“NFGL Borrower”), ARC Hospitality Portfolio I MBGL 1000 Owner, LLC, a Delaware limited liability company (“MBGL 1000 Borrower”), ARC Hospitality Portfolio I MBGL 950 Owner, LLC, a Delaware limited liability company (“MBGL 950 Borrower”), (ii) the sole member of ARC Hospitality Portfolio I NTC Owner GP, LLC, a Delaware limited liability company (“Owner GP”), which in turn is the one percent (1%) general partner of each of ARC Hospitality Portfolio I NTC Owner, LP, a Delaware limited partnership (“LP Borrower”), ARC Hospitality Portfolio I DLGL Owner, LP, a Delaware limited partnership (“DLGL Borrower”), and ARC Hospitality Portfolio I SAGL Owner, LP, a Delaware limited partnership (“SAGL Borrower”; LLC Borrower, BHGL Borrower, PXGL Borrower, GBGL Borrower, NFGL Borrower, MBGL 1000 Borrower, MBGL 950 Borrower, LP Borrower, DLGL Borrower and SAGL Borrower are individually and collectively, as the context may require, referred to as the “Mortgage Borrowers”), (iii) the ninety-nine percent (99%) limited partner of LP Borrower, DLGL Borrower, and SAGL

Borrower, (iv) the sole member of ARC Hospitality Portfolio I TRS Holdco, LLC, a Delaware limited liability company (“TRS Holdco”), which in turn (a) is the sole member of ARC Hospitality Portfolio I TRS, LLC, a Delaware limited liability company (“Main TRS”), ARC Hospitality Portfolio I HIL TRS, LLC, a Delaware limited liability company (“HIL TRS”), ARC Hospitality Portfolio I MCK TRS, LLC, a Delaware limited liability company (“MCK TRS”), ARC Hospitality Portfolio I MISC TRS, LLC, a Delaware

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