HomeMy WebLinkAbout2003-10-20 Land Holding COF and OADeCaware PAGE 1
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I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HERESY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF FORMATION OF "LAND HOLDING, LLC",
FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 2003,
AT 11:10 O'CLOCK A.M.
3717087 8100
Harriet Smith Windsor, Secretary of State
AUTHENTICATION: 2698717
030671380 DATE: 10-20-03
,
CERTIFICATE OF FORMATION
OF
LAND HOLDING, LLC
1. The name of the limited liability company is Land Holding, LLC (the "Company")-
2. The address of the Company's registered office in the State of Delaware is
Corporation Trust Center, 12o9 Orange Street, in the City of Wilmington, County of New Castle.
The name of the Company's registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing with the Secretary of
State of the State of Delaware_
4. The debts, obligations and liabilities of the Company, whether arising in contract,
tort, or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no
member or manager (if array) of the Company shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member or acting as a manager
ofthe Company.
IN WITNESS WI3EREOF, the undersigned has executed this Certificate of Formation of
Land Holding, LLC this 2dh day of October, 2003.
By: ' _ '�..
J than A. Salzman, Authorized Person
State of Delaware
Secretary of State
Division of Corporations
Delivered I1:20 AM 1012012003
FILED 11:10 AM 1012012003
SRV 03067I211 — 3717087 FILE
Certificate of Amendment to Certificate of Formation
AM
LAND HOLDING, LLC
It is hereby certified that:
1. The name of the limited liability company (hereinafter called the "limited
liability company") is LAND HOLDING, LLC.
2. The certificate of formation of the limited liability company is hereby amended
by striking out the statement relating to the limited liability company's registered agent and
registered office and by substituting in lieu thereof the following new statement:
"The address of the registered office and the name and the address of
the registered agent of the limited liability company required to be
maintained by Section 18-104 of the Delaware Limited Liability
Company Act are Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, DE 19808."
Executed on June 13, 2007
Signature:/s/George P. Long, In
Name: George P. Long, III:
Title: Authorized Person
State of Delaware
Secretary of State
Division of Corporations
Delivered 03:19 PM 0710612007
FTLED 02:28 PM 0710612007
SRV 070788396 - 3717087 FILE
LIMITED LIABILITY COMPANY AGREEMENT
FOR
LAND HOLDING, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made as of
October 20, 2003, by PNC BANK, NATIONAL ASSOCIATION ("Bank" or the "Member"). This
Agreement constitutes the "limited liability company agreement" as defined in Section 18-101(7) of
the Delaware Limited Liability Company Act (the "Act") for LAND HOLDING, LLC (the
"Company"), a limited liability company formed under the Act. In consideration of the respective
covenants and agreements contained herein, the Member states:
ARTICLE I
OFFICES AND PURPOSES; DEFINITIONS
1.1 Formation. At the request of the Member, Jonathan A. Salzman has, as the authorized
person, filed the Certificate of Formation of the Company with the Secretary of State of Delaware on
October 20, 2003.
1.2 Principal Office. The principal office of the Company shall be located at 249 Fifth
Avenue, Pittsburgh, PA 15222-2707. The principal office of the Company may be changed by the
Board of Managers. The Company may have such other offices, either within or without the State of
Delaware, as the Board of Managers may designate or as the business of the Company may from time
to time require.
1.3 Registered Office and Agent. The registered office of the Company, as required by the
Act to be maintained in the State of Delaware, shall be located at 1209 Orange Street, Wilmington,
Delaware 19801, and the original registered agent at such address shall be The Corporation Trust
Company. The registered office and registered agent may be changed from time to time by the Board
of Managers and by the filing of the prescribed forms with and the payment of any prescribed fees to
the Delaware Secretary of State.
1.4 Business. The Company has been formed to engage primarily in the business of
acquiring, holding and/or disposing of real and personal property, and related services. In addition,
the Company may engage in any other lawful business for which a limited liability company may be
organized under the Act as may be determined by the Board of Managers from time to time.
1.5 Definitions. As used herein, the following terms have the following meanings:
"Business Day" means any day other than Saturday, Sunday or a day that is a legal holiday in
the Commonwealth of Pennsylvania; and
"Person" has the meaning specified in Section 18-101(12) of the Act.
In addition, the following terms are defined in the following Sections of this Agreement:
Term Section
Act
Agreement
Board of Managers
Capital Account
Chairman
Company
Event of Dissolution
Indemnified Party
Major Decision
Manager
Member
Bank
Introduction
Introduction
3.1
2.6
4.1
Introduction
5.1
6.1
3.10
3.1
2.1
Introduction
ARTICLE 2
MEMBER AND FINANCIAL MATTERS
2.1 Identity of Member. The member of the Company (the "Member") shall be Bank.
2.2 Limitation of Liability of Members and Others. Except as otherwise required by
applicable law, the debts, obligations and liabilities of the Company, whether arising in contract, tort
or otherwise, shall be solely the debts, obligations and liabilities of the Company and no Member or
Manager shall be obligated personally for any such debt, obligation or liability of the Company solely
by reason of being a Member or acting as a Manager. Each Manager and each officer of the
Company, to the maximum extent now or hereafter permitted by applicable law, shall have no
personal liability to the Company or its Members for monetary damages for breach of fiduciary duty
as a Manager or officer.
2.3 Assignment. The membership interest of the Member shall be freely transferable by
the Member.
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2.4 Initial Capital Contribution. The Member shall make an initial cash capital
contribution of $500.
2.5 Additional Capital Contributions. The Member shall have no obligation to make any
additional capital contributions to the Company.
2.6 Taxation; Capital Accounts. In accordance with Treas.Reg.Section 301.7701-3(b)(1),
it is the understanding of the Member that the Company, as a single Member limited liability
company, will be disregarded for Federal income tax purposes, and therefore that all of its activities
will be deemed to have taken place at the level of its Member. A capital account ("Capital Account")
for the Member shall be determined and maintained on the books and records of the Company to
record all contributions, distributions, profits and losses. In the event the Board of Managers
determines that it is prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto, are computed, then the Board of Managers may make such modification.
2.7 Distributions
(a) General. The Board of Managers shall make distributions to the Member from
time to time in such amounts as it shall determine.
(b) Withholding Taxes. The Company shall, and is hereby authorized by the
Member to, withhold from distributions (or allocations of Company income, gain, loss,
deduction and credit) to the Member and to pay over to any federal, state, local or foreign
government any amounts required to be so withheld by law (including, without limitation,
Internal Revenue Code sections 1441, 1442, 1445, and 1446 thereof) and shall allocate any
such amount to the Member with respect to which such amounts were withheld. For all
purposes of this Agreement, all amounts so withheld shall be treated as amounts actually
distributed to the Member with respect to which such amounts were withheld, and such
amounts shall be treated as actually distributed at the time paid to the relevant government
agency.
2.8 Accounting and Books of Account. The accounts, books and records of the Company
shall be maintained at the principal office of the Company and shall be open for inspection, copying,
and audit upon reasonable notice by the Member. The Company's books shall be closed and
balanced at the end of each calendar year.
2.9 Tax Returns. The Board of Managers shall designate an officer of the Company to be
responsible for the preparation of all required federal, state, local and foreign income tax returns for
the Company.
2.10 Banking. All funds of the Company shall be deposited in its name in one or more
separate accounts with such banks, savings and loan associations, or trust companies as shall be
designated by the Board of Managers. Funds of the Member or other Persons shall not be deposited
in such Company accounts. The funds in such accounts shall be used solely for the business of the
Company. Withdrawals from, or checks drawn upon, such accounts shall require the signatures of
such persons as may be designated by the Board of Managers.
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2.11 Withdrawal of a Member. A person ceases to be a Member of the Company upon the
occurrence of:
(a) Except as provided below, any of the events of Withdrawal as set forth in the Act.
(b) The assignment or transfer of all of such Member's membership interest in accordance
with this Agreement, regardless of whether the assignee or transferee of such membership
interest is admitted as a Member of the Company in substitution of the assigning or
transferring Member; or
(c) In the case of a Member that is a corporation, the filing of a Certificate of Dissolution,
or its equivalent, for the corporation or the revocation of its charter, provided that its charter is
not reinstated within ninety (90) days after revocation.
Notwithstanding Section 18-304 of the Act, the occurrence of any one of the events enumerated in
subsections (a) or (b) of Section 18-304 of the Act shall not cause the withdrawal of a Member.
ARTICLE 3
MANAGEMENT
3.1 Board of Managers Establishment and Composition. The Member hereby establishes
a board of managers (the "Board of Managers") consisting of the number of managers (each a
"Manager") to be determined from time to time by the Member. The Member, by written action, or
the Board of Managers, by a majority vote of the Managers, shall have the authority to increase or
decrease the number of Managers. Managers shall be appointed by action of the Member. A
Manager may be replaced at any time and from time to time by the action of the Member.
3.2 Board of Managers. Subject to Section 3.10, the Board of Managers shall oversee the
operations of the Company and shall have the authority to delegate to any Manager or officer of the
Company the authority to make any decision on the Company's behalf. If there is more than one
Manager, all decisions of the Board of Managers shall be made by a majority of the Managers with
each Manager having one vote. The fact that a Manager may have an interest in any decision shall
not invalidate such decision and shall be binding upon the Company and the Member.
3.3 Chairman of the Board of Managers. The Chairman shall be elected at each meeting
of the Board of Managers (the "Chairman") and shall preside over each meeting of the Board of
Managers and shall be responsible for preparing or causing to be prepared minutes reflecting the
actions taken thereat. If there is only one Manager, then such Manager shall serve as Chairman of the
Board of Managers.
3.4 Board of Managers Meetings. The Chairman may call a meeting of the Board of
Managers by giving written or electronic notice of such meeting to each other Manager at least two
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Business Days prior to the date thereof. Such notice shall specify the date, time, and place of the
meeting, and shall set forth an agenda of items to be discussed or acted upon at the meeting.
3.5 Quorum for Meetings of the Board of Managers. The presence in person, by proxy, or
by telephonic connection, of a majority of the Managers shall constitute a quorum for the transaction
of business at a meeting of the Board of Managers. No action of the Board of Managers shall be valid
in the absence of a quorum, except as provided in Section 3.7.
3.6 Consent of Absentees and Waiver of Notice. The actions taken at any meeting of the
Board of Managers held without proper notice or a quorum shall be as valid as though taken at a
meeting duly held after proper notice and with a quorum if, either before or after the meeting, each
Manager not present in person or by proxy signs a written waiver of notice or a consent to the holding
of such meeting, or approves the minutes thereof. All such waivers, consents or approvals shall be
filed with the books and records of the Company and made a part of the minutes of the meeting.
Attendance of a Manager at any meeting of the Board of Managers shall constitute a waiver of notice
of such meeting, except when a Manager attends for the express purpose of objecting to the
transaction of any business because such meeting has not been duly noticed.
3.7 Written Action Without a Meeting: Telephone Meetings. Any action required or
permitted to be taken at any meeting of the Board of Managers may be taken without a meeting if
consent in writing to such action is provided by a sufficient number of Managers whose votes are
necessary to approve such action. Such written consent or consents shall be filed with the minutes of
the proceedings of the Board of Managers. Written notice of any such action shall be delivered by the
Company to any Manager who did not execute such written consent. Action by written consent shall
have the same force and effect as a vote of the Board of Managers. Managers may participate in any
meeting of the Board of Managers by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence in person at a meeting.
3.8 Proxies. Each Manager (including the Chairman) may appear and vote at any meeting
of the Board of Managers, and may execute waivers of notice, consents, or approvals, through the
agency of one or more persons, provided such agents are authorized to so act on behalf of such
Manager by the terms of a written proxy which has been executed by such Manager and delivered to
the Secretary. The Secretary shall cause such written proxies to be filed with the books and records
of the Company.
3.9 Committees.
(a) Committees. The Board of Managers may, by written resolution adopted by
the entire Board of Managers, designate an Executive Committee and/or other Committees
which shall have the authority delegated to such by the Board of Managers.
(b) Executive Committee. The Executive Committee, if one shall be appointed,
shall consist of not less than two Managers, who from time to time shall be appointed by the
Board of Managers. The Committee shall meet at such time or times as may be fixed by the
Board of Managers or upon the call of the Chairman. Any other member of the Board of
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Managers who may see fit to attend may participate in any or all meetings of the Executive
Committee without formal appointment, and, when in attendance, shall be deemed and treated
for all purposes as a member of the Committee. The Chairman shall act as Chairman of the
Executive Committee and in his absence the President shall so act, unless the Board of
Managers shall appoint some other person. The Executive Committee shall have and exercise
in the intervals between the meetings of the Board of Managers all the powers of the Board of
Managers so far as may be permitted by law. All acts done and powers conferred by the
Executive Committee from time to time shall be deemed to be, and may be certified as being,
done and conferred under authority of the Board of Managers. A number of Managers equal
to a majority of the number of Managers from time to time formally appointed to the
Executive Committee shall constitute a quorum regardless of whether the Managers present
shall have been formally appointed to the Executive Committee, and the action of a majority
of the Managers present at a meeting shall decide any matter or question submitted to the
Executive Committee.
(c) Minutes. The Executive Committee shall keep minutes of its meetings, and
such minutes shall be submitted at the next regular meeting of the Board of Managers, and any
action taken by the Board of Managers with respect thereto shall be entered in the minutes of
the Board of Managers. All other Committees shall keep minutes of their meetings which
shall be accessible to inspection by the Board of Managers at all times.
(d) Procedure. Except as otherwise expressly provided for herein, each Committee
may appoint a secretary, adopt its own rules of procedure and, unless the Board of Managers
has acted with respect thereto, determine the date, place and hour for its meetings. In the
absence of any other specific provisions therefor all meetings of committees shall be governed
by "Roberts Rules of Order" and a majority of the members of any committee shall constitute
a quorum, and the action of a majority of the members in attendance at a meeting shall
constitute the action of the body. A special meeting of any Committee may be called by the
Chairman at any time. Notice of such special meeting shall be given to each member
personally, or by mail or by electronic transmission to his address appearing on the books of
the Corporation by deposit in any post office or electronic transmission device, on or before
the day preceding the meeting.
(e) Attendance. In the event of the absence or inability of any member of any
Committee to attend any meeting of such Committee, the Chairman may appoint any Manager
who is not a member of such Committee as a temporary member to take the place at any
meeting or meetings of any Manager member who is absent or unable to attend.
3.10 Major Decisions. Notwithstanding any other provision of this Agreement, only the
Member shall have the right or authority to take any of the following actions (each a "Major
Decision") on behalf of the Company:
(a) Investing in or otherwise acquiring any interest in any other business or entity;
(b) Issuing membership interests in the Company;
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(c) Redeeming a membership interest in the Company;
(d) Adopting any additional provisions or otherwise amending
any provisions of this Agreement of the Company;
(e) Effecting any material change in the direction of the business of the Company;
(f) Selling, hypothecating or otherwise transferring or disposing of a material
portion of the Company's assets other than in the ordinary course of business; or
(g) Merging, reorganizing or otherwise engaging in any business combination with
any other entity, on behalf of the Company or otherwise.
3.11 Reliance on Acts of Managers. No financial institution or any other person, firm or
corporation dealing with the Company shall be required to ascertain whether a Manager is acting in
accordance with this Agreement but such financial institution or such other person, firm or
corporation shall be protected in relying solely upon the deed, transfer or assurance of, and the
execution of such instrument or instruments by such Manager.
3.12 Exercise of Authority During Emergencies. The Board of Managers or the Executive
Committee may from time to time adopt resolutions authorizing certain persons and entities to
exercise authority on behalf of this Company in time of emergency, and in the time of emergency any
such resolutions will be applicable, notwithstanding any provisions to the contrary contained in this
Agreement.
3.13 Charitable Contributions. The Board of Mangers may authorize contributions to
community funds, or to charitable, philanthropic, or benevolent instrumentalities conducive to public
welfare in such sums as the Board of Managers may deem expedient and in the interests of the
Company.
ARTICLE 4
OFFICERS
4.1 Designation. The Officers of the Company shall be a President, a Secretary, and a
Treasurer and such other Officers and Assistant Officers as the Board of Managers may authorize.
Officers shall be appointed by the Board of Managers.
4.2 President. The President shall be the chief executive officer of the Company and shall
have general supervision of the operations of the Company and of the other officers, agents and
employees and shall be ex offrcio a member of all Committees; he shall have all the administrative
powers and duties that are usually incident to the office of the President of a corporation, and shall
have such other duties as may be assigned to him from time to time by the Board of Managers. The
President shall preside at the meetings of the Board of Managers, and of the Executive Committee
unless some other person shall be appointed by the Board of Managers.
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4.3 Vice Presidents. The Vice Presidents, if such are elected, shall have the duties and
powers as may from time to time be assigned to them by the Board of Managers or by the President
in the absence of any assignment by the Board of Managers.
4.4 Treasurer. The Treasurer shall be responsible for all moneys, funds, securities, fidelity
and indemnity bonds and other valuables belonging to the Company, shall cause to be kept proper
records of the transactions of the Company, and shall perform such other duties as may be assigned
to him from time to time by the Board of Managers or the President.
4.5 Secretary. The Secretary shall attend the meetings of the Board of Managers, and of
the Executive Committee and shall keep minutes thereof in suitable minute books. He shall have
charge of the Company's records and papers. He shall give notices of all meetings of the Board of
Managers and of special meetings of the Executive Committee. He shall have such other duties as
the Board of Managers or the President shall assign to him.
4.6 Comptroller. The Comptroller, if a Comptroller is elected, shall be the chief
accounting officer and shall supervise systems and accounting records and shall be responsible for
the preparation of financial reports.
4.7 Auditor. The Auditor, if an Auditor is elected, shall have charge of auditing the books,
records and accounts. He shall report directly to the Board of Managers or a committee thereof.
4.8 Assistant Officers. Each Assistant Officer as shall be elected shall assist in the
performance of the duties of the officer to whom he is assistant and shall perform such duties in the
absence of the officer. He shall perform such additional duties as the Board of Managers, the
President, or the officer to whom he is assistant, may from time to time assign to him.
4.9 General Powers of Officers.
(a) Signatory with Attestation. The President, any Vice President, the Treasurer,
the Secretary or any Assistant Secretary and any other officers or agents authorized by the
Board of Managers are and each of them acting alone is hereby authorized and empowered:
(i) To sell, assign and transfer any and all shares of stock, bonds or
other personal property standing in the name of the Company or held by the Company
either in its own name or in any fiduciary capacity or as agent;
(ii) To assign and transfer any and all registered bonds of the United
States or its instrumentalities and the bonds of any state, city, county, borough or other
municipality and the bonds of any corporation and to execute requests for payment or
reissue of any such bonds that may be issued now or hereafter and held by the
Company in its own right or in any fiduciary capacity or as agent;
(iii)To sell at public or private sale, lease, mortgage or otherwise
dispose of, for such price or prices and upon such terms and conditions as may be
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deemed advisable, any real estate or any interest therein now held or which may be
hereafter acquired or held by the Company in its own right or in any fiduciary capacity
or as agent; and for and on behalf of the Company and as its act and deed to execute
and deliver any conveyances of any such real estate, agreements, contracts, bills of
sale, assignments of mortgages, judgments, claims, powers of attorney or other
instruments which may be necessary in relation to any estate or property, real or
personal, standing in the name of this Company in its own right or in any fiduciary
capacity or as agent and to acknowledge the same before any person having authority
to take such acknowledgments on such instruments to the extent that they may be duly
recorded;
(iv) To receive and receipt for any sums of money or property due or
owing to this Company in its own right or in any fiduciary capacity or as agent and to
execute any instrument or satisfaction therefor or of any mortgage, judgment or other
lien of record in the Office of the Recorder of Deeds, the Prothonotary or similar
official in various locations;
(v) To execute and deliver any and all deeds, contracts, agreements,
leases, conveyances, bills of sale, petitions, writings, instruments, releases,
acquittances and obligations necessary in the exercise of the corporate powers of the
corporation.
(b) Signatures with Attestation. The Treasurer, the Secretary or any Assistant
Secretary, and such other officers, employees and agents as the Board of Managers or the
Executive Committee may appoint are each hereby authorized and empowered:
(i) To sign or countersign checks, drafts, acceptances, promissory
notes, and correspondence and other papers or documents;
(ii) To receive and receipt for any sums of money or property due or
owing to this Company in its own right or in any fiduciary capacity or as agent and,
either as Attorney -in -Fact for the Company or otherwise, to enter satisfaction therefor
or of any mortgage, judgment or other lien in the Office of the Recorder of Deeds or
the Prothonotary or similar official in various locations.
ARTICLE 5
DISSOLUTION AND LIQUIDATION
5.1 Dissolution. The Company shall be dissolved upon the occurrence of any of the
following events (each an "Event of Dissolution):
(a) The occurrence of one or more events specified in this Agreement as causing
the dissolution of the Company;
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(b) The sale of substantially all of the Company's assets;
(c) The written statement of the Member to dissolve the Company;
(d) Entry of a decree of judicial dissolution under Section 18-802 of the Act.
Upon the dissolution of the Company, the Member (or the successor of the Member with respect to
the Member's membership interest) shall proceed, within one hundred eighty (180) days after notice
of the event causing dissolution, with the winding up of the Company, and its assets shall be applied
and distributed as provided in the Act; provided, however, that nothing in this Agreement shall be
deemed to require the Company or the Member to pay any non -recourse debts or obligations of the
Company.
5.2 Final Accounting. The Member shall be furnished with a statement prepared by the
Company's accountants, which shall set forth the assets and liabilities of the Company as of the date
of the complete liquidation. Upon the compliance by the Member with the foregoing distribution
plan, the Member shall cease to be a Member and the Member shall execute and cause to be filed a
Certificate of Dissolution of the Company in compliance with the Act and any and all other
documents necessary with respect to termination and cancellation.
5.3 Reserve. Notwithstanding the provisions of this Article, the Company may retain such
amounts as it deems reasonably necessary as a reserve for any contingent liabilities or obligations of
the Company. After such reasonable period of time as the Member shall determine, the balance of
such reserve shall be distributed to the Member pursuant to this Article 5.
5.4 Contributions and Deficiencies. The Member shall not have any obligation to restore a
deficit balance in its Capital Account at any time, and such deficit shall not be considered as owed to
the Company or any other Person for any purpose whatsoever.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification. Each person who at any time is or shall have been a Manager or
officer of the Company (any such person being a "Covered Person"), and was or is involved (as a
party, a witness, by being threatened to be made a party, or otherwise) in a threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal, administrative, investigative,
legislative or other, including without limitation an action by or in the right of the Company (each a
"Proceeding"), by reason of the Covered Person being or having been a Manager or officer of the
Company or any action taken or not taken by the Covered Person in any such capacity, shall be
indemnified by the Company to the fullest extent permitted by the laws of the State of Delaware
against any and all expense, liability and loss (including without limitation judgments, fines,
penalties, ERISA excise taxes, other taxes, amounts paid or to be paid in settlement and attorneys'
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fees) incurred or suffered by such person in connection with the Proceeding; provided, however,
except as provided in Section 6.3 of this Article 6, the Company will not indemnify a Covered Person
seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person
unless the Proceeding (or part thereof) was authorized by the Board of Managers of the Company.
The obligations of the Company under this Section 6.1 shall be satisfied solely from the assets of the
Company, and no Member shall have any personal liability on account thereof.
6.2 Advancement of Expenses. In connection with any Proceeding for which a Covered
Person may be entitled to indemnification under this Article 6, the Company shall pay the expenses
(including without limitation attorneys' fees and expenses) incurred by such Covered Person in any
such Proceeding in advance of final disposition of such Proceeding (an "advancement of expenses")
upon receipt by the Company of an undertaking, by or on behalf of such Covered Person, to repay all
amounts so advanced if it is ultimately determined by final judicial decision from which there is no
further right to appeal that such Covered Person is not entitled to be indemnified for such expenses
under this Article 6 or otherwise; provided, however, the Company will not advance expenses
pursuant to this Article 6, Section 6.2 to any Covered Person in connection with a Proceeding (or part
thereof) initiated by such person unless the Proceeding (or part thereof) was authorized by the Board
of Managers of the Company.
6.3 Unpaid Amounts. If a written claim for indemnification or advancement of expenses
pursuant to this Article 6 is not paid in full by the Company within sixty (60) days after such claim
has been received by the Company, the claimant may at any time thereafter bring suit against the
Company to recover the unpaid amount of any such claim, and if successful in whole or in part in any
such suit, the claimant shall also be entitled to be paid the expenses of prosecuting such suit. It shall
be a defense to any such suit (other than a suit to enforce a claim for advancement of expenses where
the required undertaking has been received by the Company) that indemnification of the claimant
would not be permitted by applicable law, but the burden of proving such defense shall be on the
Company. Neither the failure of the Company (including its Board of Managers, independent legal
counsel or members) to have made a determination prior to the commencement of any suit seeking
indemnification or advancement of expenses pursuant to this Article 6 that indemnification or
advancement of expenses is proper in the circumstances, nor a determination by the Company
(including its Board of Managers, independent legal counsel or members) that indemnification of the
claimant is not proper in the circumstances, shall, in itself, create a presumption that the claimant is
not entitled to indemnification or advancement of expenses pursuant to this Article 6 or be a defense
to any such suit.
6.4 Validity. Legality and Enforceability. If any provision or provisions of this Article 6
are held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality
and enforceability of the remaining provisions of this Article 6 (including without limitation each
portion of any Section of this Article 6 containing any such provision held to be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or unenforceable) will not in any way be
affected or impaired thereby; and (2) to the full extent possible, the provisions of this Article 6
(including without limitation each such portion of any Section of this Article 6 containing any such
provision held to be invalid, illegal or unenforceable) will be construed so as to give effect to the
intent manifested by the provision or provisions held invalid, illegal or unenforceable.
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6.5 Partial Indemnification. If a claimant is entitled to indemnification pursuant to the
provisions of this Article 6 for some or a portion of the expense, liability and loss incurred or suffered
by such person in connection with any Proceeding but not for the total amount thereof, the Company
shall indemnify the claimant for the portion thereof to which the claimant is entitled.
6.6 Rights. The rights to indemnification and advancement of expenses set forth in this
Article 6: (1) shall be contract rights and such rights shall continue as to a person who has ceased to
be a Covered Person and shall inure to the benefit of a Covered Person's heirs, executors,
administrators and legal representatives; and (2) shall not be deemed exclusive of any other rights to
which any member, manager, officer, employee, fiduciary, agent or other person may be entitled in
any capacity as a matter of law or under any charter provision, agreement, vote of members or
managers, or otherwise. Any repeal, amendment or modification of this Article 6 or adoption of any
other provision of the Agreement or Certificate of Formation of the Company which has the effect of
limiting the rights set forth in this Article 6 shall operate prospectively only and shall not affect any
rights or obligations with respect to actions, omissions, circumstances or events occurring prior to the
adoption of any such repeal, amendment or modification. Nothing in this Article 6 shall require the
Company to take any action that would be prohibited by applicable law.
6.7 Employees and Agents. The Company may provide indemnification and advancement
of expenses to any employee or agent of the Company up to the full extent of the provisions of this
Article 6 with respect to the indemnification and advancement of expenses of managers and officers
of the Company.
6.7 Insurance. The Company shall have power to purchase and maintain insurance on
behalf of any Covered Person against any liability asserted against and incurred by such Covered
Person in such Covered Person's capacity, or arising out of the Covered Person's status as such,
whether or not the Company would have the power to indemnify the Covered Person against such
liability under the provisions of this Article 6.
ARTICLE 7
MISCELLANEOUS
7.1 Successors. This Agreement shall be binding upon and shall inure to the benefit of the
respective successors and permitted assigns of the Member.
7.2 Interpretation and Construction. The headings of the Articles and Sections of this
Agreement have been inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement. Words such as "herein," "hereof," "hereby," "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular Section of this Agreement, unless
the context clearly indicates otherwise.
7.3 Severability. In the event any provision of this Agreement shall finally be determined
to be unlawful or unenforceable, such provision shall be deemed to be severed from this Agreement,
and every other provision of this Agreement shall remain in full force and effect.
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7.4 Notices. All notices, requests and other communications hereunder shall be in writing
and shall be deemed to have been duly given at the time of receipt if delivered by hand or three days
after being mailed, registered or certified mail, return receipt requested, with postage prepaid:
If to Bank:
PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attn: Thomas R. Moore
Fax: 412-705-2194
If to any Manager, any officer or any other Person, to the address given by such Person to the
Company for purposes of notice; provided, however, that if any Member shall have designated a
different address by notice to the other given as provided above, then to the last address so
designated.
7.5 Complete Agreement. This Agreement sets forth the entire understanding of the
Member and supersedes all prior letters of intent, agreements, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any officer, employee or
representative of the Member.
7.6 Third Parties. This Agreement is not intended to, and shall not, create any rights in or
confer any benefits upon anyone other than the parties hereto and their permitted successors and
assigns.
7.7 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving effect to the conflicts
of laws provisions thereof.
7.8 Amendment of this Agreement. Any amendment to this Agreement must be effected
by the consent of Member. Notwithstanding the foregoing, amendments to this Agreement that
clarify the terms hereof may be effected by the Board of Managers without the consent of the
Member.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date
above written.
PNC BANK, NATIONAL ASSOCIATION
By:_ -
Name: Thomas R. Moore
Title: Secretary
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