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 II HOLDCO, LLC

AMONG

AMERICAN REALTY CAPITAL HOSPITALITY PORTFOLIO MEMBER, LP,

W2007 Equity Inns PARTNERSHIP, L.P.,

W2007 EQUITY INNS TRUST

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 18
ARTICLE 2 THE COMPANY AND ITS BUSINESS 18
2.1 Members; Continuation of the Company 18
2.2 Company Name 19
2.3 Term 19
2.4 Filing of Amendments to the Certificate 19
2.5 Purpose 19
2.6 Principal Office; Registered Agent 19
2.7 Classes of Members 19
2.8 Names and Addresses of the Members 20
2.9 Authorized Persons 22
2.10 Representations by the Class B Member 22
2.11 Representations by the Class A Member 24
2.12 Certain Tax Matters 25
ARTICLE 3 MANAGEMENT OF COMPANY BUSINESS; POWERS AND DUTIES OF THE MEMBERS 27
3.1 Management of the Company Business 27
3.2 Appointment of Initial Managing Member 27
3.3 Class A Member’s Rights Following a Changeover Event 27
3.4 Buy/Sell Following a Changeover Event; Remedy Not Exclusive 30
3.5 The Class B Member’s Rights Following a Changeover Event 33
3.6 Significant Decisions 34
3.7 Class B Member Affiliate Contracts 36
3.8 Cooperation 36
3.9 The Class A Member’s Right to Cure Senior Loan Defaults 37
ARTICLE 4 RIGHTS AND DUTIES OF MEMBERS 37
4.1 Duties and Obligations of the Class B Member 37
4.2 Prohibition of Other Activities of the Class B Member 38
4.3 Limitation on Member Liability; Indemnification 38
4.4 Compensation of Members and their Affiliates 39
4.5 Use of Company Property 39
4.6 Tax Contests 39
4.7 Duty of the Class A Member 40
ARTICLE 5 BOOKS AND RECORDS; ANNUAL REPORTS; EXPENSES AND OTHER MATTERS 40
5.1 Books of Account 40
5.2 Availability of Books of Account 41
5.3 Annual Reports and Statements; Annual Budgets 41
5.4 Class A Member’s Expenses 41
5.5 Cash Management Account 42

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5.6 Plan Assets 42
5.7 Insurance 43
5.8 Casualty/Condemnation 43
5.9 Existence; Compliance with Legal Requirements 43
5.10 Impositions and Other Claims 43
5.11 Litigation 44
5.12 Access to Properties 44
5.13 Notice of Default 44
5.14 Intentionally Omitted 44
5.15 Conduct of Business 44
5.16 Standard of Operation 44
5.17 No Sales of Assets 45
5.18 Compliance with Senior Loans 45
5.19 Intentionally Omitted 45
5.20 Prohibited Persons 45
5.21 Forgiveness of Debt 45
ARTICLE 6 CAPITAL CONTRIBUTIONS, LOANS AND LIABILITIES 45
6.1 Initial Capital Contributions of the Members 45
6.2 Protective Capital/Additional Capital 45
6.3 Application of Capital 46
6.4 Capital of the Company 47
ARTICLE 7 INTENTIONALLY OMITTED 47
ARTICLE 8 APPLICATIONS AND DISTRIBUTIONS OF AVAILABLE CASH; REDEMPTION 47
8.1 Distributions of Cash 47
8.2 Sales; Financings; Qualified Capital Raises 47
8.3 Redemption Right 48
8.4 Distribution of Capital Event Proceeds 48
8.5 Distribution After Changeover Event 49
ARTICLE 9 TRANSFER OF COMPANY INTERESTS 49
9.1 Restrictions on Transfers by the Class B Member 49
9.2 Transfers by the Class A Member 50
9.3 Assignment Binding on Company 51
9.4 Bankruptcy of a Member 51
9.5 Substituted Members 51
9.6 Acceptance of Prior Acts 51
9.7 Additional Limitations 52
9.8 Restraining Order; Specific Performance; Other Remedies 52

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ARTICLE 10 DISSOLUTION OF THE COMPANY; WINDING UP AND DISTRIBUTION OF ASSETS 52
10.1 Dissolution 52
10.2 Winding Up 53
10.3 Distribution of Assets 54
ARTICLE 11 AMENDMENTS 54
11.1 Amendments 54
11.2 Additional Members 55
ARTICLE 12 MISCELLANEOUS 55
12.1 Further Assurances 55
12.2 Notices 55
12.3 Remedies of the Class B Member 55
12.4 Exculpation 56
12.5 Headings and Captions 56
12.6 Variance of Pronouns 56
12.7 Counterparts 56
12.8 Governing Law 56
12.9 Consent to Jurisdiction 56
12.10 Arbitration 57
12.11 Partition 58
12.12 Invalidity 58
12.13 Successors and Assigns 58
12.14 Entire Agreement 58
12.15 Waivers 58
12.16 No Brokers 58
12.17 Press Releases 58
12.18 No Third Party Beneficiaries 58
12.19 Construction of Documents 59
12.20 Time of Essence 59

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SCHEDULES

Schedule A Properties
Schedule 1.1(a) Allocated Amounts
Schedule 1.1(b) Mortgage 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 II HOLDCO, LLC

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of February 27, 2015, 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 PARTNERSHIP, L.P., a Tennessee limited partnership, and W2007 EQUITY INNS TRUST, a Maryland trust (collectively, and together with their respective 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 July 23, 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 II Mezz, LP, a Delaware limited partnership (the “Mezzanine LP”), and (ii) is the sole member of ARC Hospitality Portfolio II Mezz GP, LLC, a Delaware limited liability company (the “Mezzanine GP”), which in turn is the one percent (1%) general partner of Mezzanine LP;

WHEREAS, the Mezzanine LP is (i) the sole member of ARC Hospitality Portfolio II Owner, LLC, a Delaware limited liability company (“LLC Borrower”), (ii) the sole member of ARC Hospitality Portfolio II NTC Owner GP, LLC, a Delaware limited liability company (“Owner GP”), which in turn is the one percent (1%) general partner of ARC Hospitality Portfolio II NTC Owner, LP, a Delaware limited partnership (“LP Borrower”; LLC Borrower, and LP Borrower are individually and collectively, as the context may require, referred to as the “Pool 2 Owners”), (iii) the ninety-nine percent (99%) limited partner of LP Borrower, (iv) the sole member of ARC Hospitality Portfolio II TRS Holdco, LLC, a Delaware limited liability company (“TRS Holdco”), which in turn (a) is the sole member of ARC Hospitality Portfolio II TRS, LLC, a Delaware limited liability company (“Main TRS”), ARC Hospitality Portfolio II HIL TRS, LLC, a Delaware limited liability company (“HIL TRS”), and ARC Hospitality Portfolio II MISC TRS, LLC, a Delaware limited liability company (“MISC TRS”), and (b) the sole member of ARC Hospitality Portfolio II NTC TRS GP, LLC, a Delaware limited liability company (“TRS GP”), which is the one percent (1%) general partner of each of ARC Hospitality Portfolio II NTC TRS, LP, a Delaware limited partnership (“Main LP TRS”), and ARC Hospitality Portfolio II NTC HIL, LP, a Delaware limited partnership (“HIL LP TRS”, and together with Main TRS, HIL TRS and MISC TRS, the “TRS”), and (c) the ninety-nine percent (99%) limited partner of both Main LP TRS and HIL LP TRS;

WHEREAS, Mortgage Borrowers own the fee or ground leasehold (as applicable) interests in the Properties (as herein defined);

WHEREAS, TRS has operating leases for all of the Properties granted by Mortgage Borrowers (the “Operating Leases”); and

WHEREAS, pursuant to the terms of that certain Amended & Restated Real Estate Sale Agreement, dated as of November 11, 2014 (the “ Sale Agreement”), by and among the parties listed on Schedule 1A attached thereto, as the sellers (the “Sellers”), and the parties listed on Schedule 1B attached thereto, as the purchasers, the Mortgage Borrowers acquired the Properties and the Company is issuing

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