HomeMy WebLinkAboutCertificate GF No.: 150155
Examiner: Angela Bankston
Effective Date: December 21,2014
NOTHING FURTHER CERTIFICATE
STATE OF TEXAS
COUNTY OF BRAZOS
THIS IS TO CERTIFY: That we have examined the records of the County Clerk of Brazos
County, Texas as they are reflected in the geographically indexed title plant of University Title
Company as to the following property, to-wit:
Tract One:
All that certain Lot tract or parcel of land being 5.79 acres situated in the ROBERT
STEVENSON LEAGUE, Abstract No. 54, Brazos County, Texas, and being out of and a
part of the remainder of a called 21.00 acre tract of land being the remainder of a called
21.96 acre tract of land conveyed to the J. K. Development, L.L.P, by Deed filed for record
in Volume 2539, Page 71 of the Official Records of Brazos County,Texas, (O.R.B.C.T.);
said 5.79 acre tract of land being the front 665 feet average, more or less, abutting State
Highway No. 6 of said called 21.00 acre tract of land and said called 21.96 acre tract of land
and being more particularly described by metes and bounds as follows:
BEGINNING at a fence corner found for Southeast corner at the Southeasterly corner, as
occupied, of said remainder of the called 21.00 acre tract of land and said remainder of the
called 21.96 acre tract of land, same being the Northeast corner, as occupied, of the Peyton
Walter called 22.8 acre tract as described in Volume 327, Page 90 of the Deed Records of
Brazos County, Texas (D.R.B.C.T.), same being a point in the Southwesterly right-of-way
line of State Highway No. 6 (Texas Avenue);
THENCE: S 51° 21' 00" W, generally along an existing fence with the Southerly line of said
called 21.00 acre and said called 22.8 acre Peyton Walter tract of land, as occupied, at
402.30 feet passing a Fnd. 1/2" iron rod, in all a distance of 673.32 et to a 1/2" iron rod set
for the Southwest corner;
THENCE: N 34° 28' 43" W, leaving said Southerly line of the called 21.00 acre and said
called 21.96 acre tracts of land and said Northerly line of the called 22.8 acre Peyton Waller
tract of land, and with a line across and through the interior of said called 21.00 acre and
said called 21.96 acre tracts of land, a distance of 406.16 feet to a 1/2" iron rod set for
Northwest corner in a fence line being the most Easterly North line of said called 21.00 acre
and said called 21.96 acre tracts of land, as occupied, and the Southerly line of a called
11.965 acre tract of land conveyed to Bob Griffin by Deed of record in Volume 240, Page 77
(D.R.B.C.T.);
THENCE: N 55° 19' 17" E, leaving said line though the interior of the called 21.00 acre
and said called 21.96 acre tracts of land, and with said most Easterly North line of the
called 21.00 acre and said called 21.96 acre tract of land and said Southerly line of the
called 11.965 acre Bob Griffin tract of land, as occupied, generally along a fence line, at
271.26 feet passing a Fnd. 1/2" iron rod, in all a distance of 654.10 feet to a fence corner
found for Northeast corner at the Northeasterly corner of said remainder of the called
21.00 acre and said remainder of the called 21.96 acre tract of land, same being the
Southeasterly corner of said called 11.965 acre Bob Griffin tract of land, same also being a
point in the aforesaid Southwesterly.right-of-way line of State Highway No. 6 (Texas
Avenue); and
THENCE: along said Southwesterly right-of-way line, as occupied, of State Highway No. 6
(Texas Avenue), and the Easterly line of said remainder of the called 21.00 acre and said
remainder of the called 21.96 acre tract of land, generally along a fence line, S 31° 21' 22"
E 103.50 feet to a 1/2" iron rod found for angle point and S 39° 37' 47" E - 247.18 feet to a
fence corner found for the POINT OF BEGINNING and containing an area of 5.79 acres of
land, more or less.
SAVE AND EXCEPT:
Being all that certain tract or parcel of land lying and being situated in the ROBERT
STEVENSON SURVEY,Abstract No. 54 in College Station, Brazos County, Texas and
being part of the called 5.79 acre tract described in the Deed from Kenneth L. Neatherlin
and James R. Jackson to SecurCare Properties X, Ltd. recorded in Volume 3397, Page 248
of the Official Records of Brazos County, Texas (O.R.B.C.) and being more particularly
described by metes and bounds as follows:
BEGINNING; at a fence corner post marking the most Easterly corner of the called 5.79
acre tract, the East corner of this tract, the North corner of the called 22.8 acre Peyton
Waller tract described in Volume 327, Page 90 of the Brazos County Deed Records
(B.C.D.R.) and being in the Southwest margin of the variable width State Highway No. 6
right-of-way commonly known as Earl Rudder Freeway);
THENCE: S 44° 05' 11" W along the Southeast line of the called 5.79 acre tract, said line
also being the Northwest line of the said 22.8 acre Peyton Waller tract and approximately
along a wire fence line for a distance of 673.32 feet (called S 51° 21' 00" VV - 673.32 feet) to
a set 1/2-inch iron rod near a fence corner post for the most Southerly corner of this tract
from whence an 8-inch fence corner post marking the West corner of the called 21.00 acre
J.K. Development LLP tract bears S 44° 05' 11" W at a distance of 748.90 feet for
reference;
THENCE: N 41° 3' 31" W along the Northwest line of the called 5.79 acre tract, said line
being approximately along a chain link fence line for a distance of 407.00 feet(called N 34°
28' 45" W - 406.16 feet) to a 1/2-inch iron rod set for corner, said iron rod being in the
Southeast line of the Oakwood Custom Homes Group Ltd. remainder tract described in
Volume 4475, Page 82, (O.R.B.C.);
THENCE: N 48° 11' 00" E along the said Southeast line of the Oakwood Custom Homes
Group Ltd. remainder tract, at 66.66 feet pass a found 1/2-inch iron rod marking the South
corner of Lot 5, Block One,Bridle Gate Estates, Phase One Subdivision as recorded in
Volume 3744, Page 49 (O.R.B.C.), continue along said line for a total distance of 271.02 feet
to a set 1/2-inch iron rod for corner;
THENCE: S 41° 30' 38" E into the interior of the called 5.79 acre tract for a distance of
211.34 feet to a set 1/2-inch iron rod for corner;
THENCE: N 47° 51' 19" E for a distance of 387.42 feet to a set 1/2-inch iron rod for corner,
said iron rod also being in the beforementioned Southwest margin of State Highway No. 6;
and
THENCE: S 46° 45' 11" E (called S 39° 37' 47" E) along said State Highway No. 6 line for
a distance of 150.33 feet to the POINT OF BEGINNING and containing 3.946 acres of land,
more or less.
Tract Two:
Being all that certain tract or parcel of land lying and being situated in the ROBERT
STEVENSON SURVEY, Abstract No. 54 in College Station, Brazos County,Texas and
being part of the called 5.79 acre tract described in the Deed from Kenneth L. Neatherlin
and James R. Jackson to SecurCare Properties X, Ltd. recorded in Volume 3397, Page 248
of the Official Records of Brazos County, Texas (O.R.B.C.) and being more particularly
described by metes and bounds as follows:
BEGINNING: at a fence corner post marking the most Easterly corner of the called 5.79
acre tract,the East corner of this tract, the North corner of the called 22.8 acre Peyton
Waller tract described in Volume 327, Page 90 of the Brazos County Deed Records
(B.C.D.R.) and being in the Southwest margin of the variable width State Highway No. 6
right-of-way commonly known as Earl Rudder Freeway);
THENCE: S 44° 05' 11" W along the Southeast line of the called 5.79 acre tract, said line
also being the Northwest line of the said 22.8 acre Peyton Waller tract and approximately
along a wire fence line for a distance of 673.32 feet (called S 51°21' 00" W- 673.32 feet) to
a set 1/2-inch iron rod near a fence corner post for the most Southerly corner of this tract
from whence an 8-inch fence corner post marking the West corner of the called 21.00 acre
J.K. Development LLP tract bears S 44° 05' 11" W at a distance of 748.90 feet for
reference;
THENCE: N 41° 3' 31" W along the Northwest line of the called 5.79 acre tract, said line
being approximately along a chain link fence line for a distance of 407.00 feet (called N 34°
28' 4.5" W -406.16 feet) to a 1/2-inch iron rod set for corner, said iron rod being in the
Southeast line of the Oakwood Custom Homes Group Ltd. remainder tract described in
Volume 4475, Page 82, (O.R.B.C.);
THENCE: N 48° 11' 00" E along the said Southeast line of the Oakwood Custom Homes
Group Ltd. remainder tract, at 66.66 feet pass a found 1/2-inch iron rod marking the South
corner of Lot 5, Block One,Bridle Gate Estates, Phase One Subdivision as recorded in
Volume 3744, Page 49 (O.R.B.C.), continue along said line for a total distance of 271.02 feet
to a set 1/2-inch iron rod for corner;
THENCE: S 41° 30' 38" E into the interior of the called 5.79 acre tract for a distance of
211.34 feet to a set 1/2-inch iron rod for corner;
THENCE: N 47° 51' 19" E for a distance of 387.42 feel:to a set 1/2-inch iron rod for corner,
said iron rod also being in the beforementioned Southwest margin of State Highway No. 6;
and
THENCE: S 46° 45' 11" E (called S 39° 37' 47" E) along said State Highway No. 6 line for
a distance of 150.33 feet to the POINT OF BEGINNING and containing 3.946 acres of land,
more or less.
NOTE: The Company is prohibited from insuring the area or quantity of land described
herein. Any statement in the above legal description of the area or quantity of land is not a
representation that such area or quantity is correct, but is made only for informational
and/or identification purposes.
And that our records reflect that the following is a true and correct list of documents affecting
title to the real property described supra between the dates of November 14, 2013 and December
21, 2014:
Special Warranty Deed:
Grantor: SecurCare Properties III, LLC
Grantee: SecureCare Properties I,LLC
Dated: April 1, 2014
Recorded: Volume 11931, Page 226, Official Records, Brazos County, Texas. (Tract One
and S&E Tracts)
Release of Lien:
From: Mortgage Electronic Registration Systems, Inc., ("MERS")
To: SecurCare Properties I, LLC
Dated: April 16, 2014
Recorded: Volume 11962, Page 279, Official Records,Brazos County,Texas. (Releases
Deed of Trust recorded in Volume 8288, Page 112, Official Records, Brazos County, Texas
and Assignment of Rents & Leases recorded in Volume 8288, Page 147, Official Records,
•
Brazos County, Texas.) (Tract Two)
This certificate is issued with the express understanding, evidenced by the acceptance of same
that the undersigned does not undertake to give or express any opinion as to the validity of the
title to the property above, but is simply reporting briefly herein as to the instruments listed
above found of record pertaining to said property, and it is expressly understood and agreed that
this Certificate is neither a guaranty nor warranty of the title. By acceptance of this Certificate it
is understood that the liability of the issuer hereof is expressly limited to the actual monetary
consideration paid for same. We have not made any examination as to property taxes, tax suits,
special assessments or conflicts.
University Title Company
By. � �=
ASSIGNMENT AND ASSUMPTION OF OWNERSHIP INTERESTS
This Assignment and Assumption of Ownership Interests (this "Assignment") is made
and entered into effective as of March 28, 2014 (the "Effective Date"), by and between
SecurCare Properties I Holdings, LLC, a Delaware limited liability company ("Assignor") and
SecurCare Portfolio Holdings, LLC, a Delaware limited liability company("Assignee").
RECITALS
Assignor is the legal and beneficial owner of 100% of the limited liability company
interests (the "Ownership Interests") in SecurCare Properties I, LLC, a Delaware limited
liability company(the "Company").
Assignor desires to assign the Ownership Interests to Assignee, and Assignee desires to
assume the Ownership Interests from Assignor. Upon this Assignment, Assignor is withdrawing
as a member of the Company,and Assignee is becoming a substitute member of the Company.
ASSIGNMENT
The parties agree as follows:
1. Assignment. For value received, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby assigns, transfers, conveys and delivers the Ownership Interests
and all of its right, title and interest in the Company to Assignee. Upon the execution of this
Assignment, the records of the Company, including the organizational documents of the
Company, shall be amended to reflect Assignee as the owner of the Ownership Interests and
Assignee shall become a substitute member of the Company.
2. Assumption. Assignee hereby accepts the foregoing assignment and assumes the
agreements and obligations of a member under the organizational documents of the Company
from and after the Effective Date.
3. Withdrawal and Substitution of Owner. Assignor hereby withdraws as the owner
of the Company, and Assignee is hereby admitted and substituted as the sole owner of the
Company with respect to the Ownership Interests.
4. Representations and Warranties. Assignor hereby represents and warrants to
Assignee that all of the Ownership Interests are free and clear of all liens. Each of Assignor and
Assignee hereby represents and warrants that the execution and delivery by it of this Assignment
will not violate or constitute a default under the terms or provisions of any agreement, document
or instrument to which it is bound.
5. Effective Date. This Assignment is effective as of the Effective Date set forth
above.
6. Successors and Assigns. This Assignment is binding on and inures to the benefit
of the parties and their respective successors and assigns.
DEC-1774615-1
7. Counterparts. This Assignment may be executed in counterparts, each of which
will be deemed an original,but all of which together will constitute the same instrument.
8. Future Cooperation. Each of the parties hereto agrees to cooperate at all times
from and after the date hereof with respect to all of the matters described herein, and to execute
such further assignments, releases, assumptions, amendments of agreements, notifications and
other documents as may be reasonably requested for the purpose of giving effect to, or
evidencing or giving notice of, the transactions contemplated by this Assignment.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
DEC-1774615-1
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
Effective Date.
ASSIGNOR:
SECURCARE PROPERTIES I HOLDINGS, LLC,
a Delaware limited liability company
By: SecurCare Self Storage, Inc., a Colorado
corporatio is anager
By:
Arlen D.Nordhagen,Preside
ASSIGNEE:
SECURCARE PORTFOLIO HOLDINGS, LLC, a
Delaware limited liability company
By: SecurCare Self Storage, Inc., a Colorado
corporation 'ts 7age,r,
By: g5t-1411—
Arlen D.Nordhagen,Preside
DEC-1774615-1
Execution Version
0
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
NATIONAL STORAGE AFFILIATES HOLDINGS,LLC
Dated as of June 20,2013
The limited liability company interests in National Storage Affiliates Holdings, LLC are subject to the
restrictions on transfer and other terms and conditions set forth in this limited liability company
agreement. Such interests have been acquired for investment and have not been registered under any state
securities laws or under the United States Securities Act of 1933, as amended (the "Securities Act").
Neither the interests, nor any part thereof, may be offered for sale,pledged, hypothecated, sold, assigned
or transferred at any time except in compliance with the terms and conditions of this agreement and, to
the extent the Interests constitute"securities" under the Securities Act, (1)pursuant to an exemption from,
or in a transaction not subject to, the registration requirements under the Securities Act or(2)pursuant to
an effective registration statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States.
AM R-409736-v7 B 80-40546275
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
1.1 Definitions. 1
1.2 Terms Generally. 5
ARTICLE 2 THE COMPANY AND ITS BUSINESS 5
2.1 Formation of the Company. 5
2.2 Company Name. 5
2.3 Members. 6
2.4 Term 6
2.5 Filing of Certificate and Amendments 6
2.6 Business; Scope of Members' Authority. 6
2.7 Principal Office; Registered Agent 6
2.8 Names and Addresses of the Members 7
2.9 Representations and Covenants by the Members. 7
ARTICLE 3 MANAGEMENT OF COMPANY BUSINESS; THE BOARD;CHIEF
EXECUTIVE OFFICER AND OTHER OFFICERS 9
3.1 Management by Chief Executive Officer. 9
3.2 No Assignment of Rights 9
3.3 Board Composition. 9
3.5 Board Meetings; Quorum;Notice of Meetings;Written Consents. 10
3.7 Company Acts. 11
3.8 Compensation. 11
3.9 Officers. 11
3.10 Exculpation; Indemnification. 11
ARTICLE 4 RIGHTS AND DUTIES OF MEMBERS 13
4.1 Compensation of Members and Their Affiliates. 13
4.2 Use of Company Assets 13
4.3 Limited Liability of Members 13
4.4 Waiver of Fiduciary Duties. 13
ARTICLE 5 REPORTS; BOOKS AND RECORDS 13
5.1 Tax Year. 13
5.2 Banking 13
5.3 Books of Account. 13
5,4 Tax Elections. 13
5.5 Tax Matters Partner. 14
ARTICLE 6 CAPITAL CONTRIBUTIONS,LOANS AND LIABILITIES 14
AMR-409736-v7B 80-40546275
- 1 -
TABLE OF CONTENTS
6.1 Capital Contributions 14
6.2 Additional Capital Contributions 14
6.3 Capital of the Company. 15
6.4 Limited Liability of the Members 15
ARTICLE 7 CAPITAL ACCOUNTS AND TAX ALLOCATIONS 15
7.1 Capital Accounts 15
ARTICLE 8 DISTRIBUTIONS OF AVAILABLE CASH 15
8.2 Limitations on Distributions. 15
ARTICLE 9 TRANSFER OF INTERESTS 15
9.1 Limitations on Transfer of Interests by Members 15
9.2 Permitted Transfers 16
9.3 Substituted Members. 16
ARTICLE 10 DISSOLUTION OF THE COMPANY; WINDING UP AND
DISTRIBUTION OF ASSETS 17
10.1 Dissolution. 17
10.2 Winding Up. 18
10.3 Distribution of Assets. 18
ARTICLE 11 AMENDMENTS 18
11.1 Amendments. 18
ARTICLE 12 MISCELLANEOUS 18
12.1 Confidentiality. 18
12.2 Further Assurances. 19
12.3 Notices. 19
12.4 Headings and Captions. 19
12.5 Variance of Pronouns. 20
12.6 Counterparts 20
12.7 Governing Law. 20
12.8 Consent to Jurisdiction. 20
12.9 Partition. 20
12.10 Invalidity 20
12.11 Successors and Assigns. 20
12.12 Entire Agreement. 20
12.13 Waivers. 21
12.14 Brokers 21
12.15 No Third Party Beneficiaries. 21
AMR-409736-v7B ii - 80-40546275
TABLE OF CONTENTS
12.16 Construction of Documents. 21
12.17 Time of the Essence 21
Exhibits and Schedules
Schedule I Members
Schedule II Initial Board Members
Schedule III Initial Officers of the Company
Exhibit A Instrument of Accession
AMR-409736-v7B - 111- 80-40546275
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
NATIONAL STORAGE AFFILIATES HOLDINGS,LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
NATIONAL STORAGE AFFILIATES HOLDINGS, LLC, dated as of June 20, 2013, by and among the
members set forth on Schedule I hereto(each a "Member" and collectively, the "Members",and may also
be referred to herein by the defined term set forth next to the name of each Member on Schedule 1).
RECITALS
WHEREAS, on February 13,2013, a person designated by the Members formed the Company by
causing the filing of a Certificate of Formation with the Secretary of State of the State of Delaware;
WHEREAS, on February 22, 2013, each Member (or an entity affiliated with such Member)
entered into separate Capital Call Transfer and Contribution Agreements(the"Contribution Agreements")
pursuant to which each Member (or an entity affiliated with such Member) contributed the amount set
forth opposite the name of such Member on Schedule I hereto (each such amount, an "Initial Capital
Contribution") to the Company in exchange for limited liability membership interests in the Company in
the form of Operating Company Units with the amount of Operating Company Units held by each
Member set forth opposite the name of each Member on Schedule I hereto;
WHEREAS, as a result of the Initial Capital Contributions, each of the Members became
members of the Company;
WHEREAS, on May 8, 2013, the Company amended its Certificate of Formation to change its
name from National Storage Associates,LLC to National Storage Affiliates Holdings,LLC;
WHEREAS, pursuant to that certain Limited Liability Company Agreement of the Company
dated as of March 27, 2013 (the "Original Agreement"), the Members set forth their agreement with
respect to the Members and its affairs and related matters;
WHEREAS, the Company has been formed to serve, directly or indirectly, as the general partner
of NSA OP,LP, a Delaware limited partnership(the"Operating Partnership");
WHEREAS,the Members desire to amend and restate the Original Agreement for the purpose of
admitting certain Persons as Members and to set forth their respective rights and obligations with respect
to the business and affairs of the Company;
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Members, intending to be legally bound,hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms have the meanings set forth
below:
AMR-409736-v7B - 1 - 80-40546275
"Act" means the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as
amended from time to time,and any successor to such statute.
"Accredited Investor" means a Person who qualifies as an "accredited investor" under Rule
501(a)of Regulation D of the Securities Act.
"Accredited Investor Questionnaire" means an Accredited Investor Questionnaire in the form
provided to the Members by the Company.
"Affiliate" means, with respect to any Person, (i)any other Person that directly or indirectly
through one or more intermediaries Controls or is Controlled by or is under common Control with such
Person; or (iii) any officer, director, member, manager or partner of such Person or of any Person that
Controls such Person.
"Agreement" means this Amended and Restated Limited Liability Company Agreement together
with the Schedules attached hereto,as it may be amended or modified from time to time.
"Available Cash" for any Fiscal Year, quarter or other period means the excess, if any, of(a)the
sum of(i)the amount of all cash receipts of the Company during such period and(ii)any working capital
of the Company existing at the start of such period less(b)the sum of(i)all cash amounts payable in such
period on account of any operating expenses and capital expenditures incurred in connection with the
Company's business and (ii)appropriate reserves for the working capital, capital expenditures and future
needs of the Company as determined by the Chief Executive Officer.
"Bankruptcy" means, with respect to the affected party, (i)the entry of an order for relief under
the Bankruptcy Code, (ii)the admission by such party of its inability to pay its debts as they mature,
(iii)the making by it of an assignment for the benefit of creditors, (iv) the filing by it of a petition in
bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state
bankruptcy or insolvency statute or any similar law, (v)the expiration of sixty(60)days after the filing of
an involuntary petition against or involving such party under the Bankruptcy Code; provided that the
same shall not have been vacated, set aside or stayed within such sixty(60)day period,(vi) an application
by such party for the appointment of a receiver for the assets of such party, (vii)the expiration of sixty
(60) days after the filing of an involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other federal or state insolvency law,provided that the same shall not
have been vacated, set aside or stayed within such sixty (60) day period or (viii)the imposition of a
judicial or statutory lien on all or a substantial part of its assets unless such lien is discharged or vacated
or the enforcement thereof stayed within sixty (60) days after its effective date. With respect to a
Member, the foregoing definition of"Bankruptcy" is intended to replace and shall supersede and replace
the definition of"Bankruptcy" set forth in Section 18-101(1)and 18-304 of the Act.
"Bankruptcy Code" means Title 11 of the United States Code, as amended, or any corresponding
provision(s)of succeeding law.
"Board"shall mean the Board of Managers of the Company.
"Business Day" means any Monday through Friday on which commercial banks are authorized to
do business and are not required by law or executive order to close in New York City.
"Capital Contribution" means the aggregate amount of capital contributed (or deemed
contributed)to the Company by the Members in accordance with Article 6.
AMR-409736-v7B - 2- 80-40546275
"Cause" shall mean with respect to a Person, an act or omission that constitutes fraud or willful
misconduct by such Person.
"Certificate" means the Certificate of Formation of the Company filed with the Secretary of State
of the State of Delaware on February 13, 2013, as amended on May 8,2013 as the same may be amended
and/or restated from time to time.
"Chief Executive Officer" shall mean the chief executive officer of the Company who shall
initially be Arlen D.Nordhagen.
"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision(s)of succeeding law.
"Company" means National Storage Affiliates Holdings, LLC, a Delaware limited liability
company, as said Company may from time to time be hereafter constituted.
"Company Assets" means all right, title and interest in and to all or any portion of the assets of
the Company and any property (real, personal, tangible or intangible) or estate acquired in exchange
therefor or in connection therewith.
"Control"means, except as otherwise specifically provided in this Agreement, for any Person, the
power to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, in all instances subject to the rights of other
Persons with respect to usual and customary major decisions, and the terms "Controlling" and
"Controlled" have meanings correlative to the foregoing.
"Core Affiliate Member" means each of Member NW I and Member NW II, acting jointly,
Member OV and Member SC and any other Member designated as a Core Affiliate Member by the
Board, but only so long as any such Person continues in its capacity as a Member in the Company. For
the avoidance of doubt, Member NW 1 and Member NW II shall constitute one Core Affiliate Member
and shall take all actions to be taken by a Core Affiliate Member jointly.
"Effective Date" means the date hereof.
"Embargoed Person" means any Person subject to trade restrictions under U.S. law, including but
not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq.,The Trading
with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated
thereunder with the result that the investment in such person, entity or government is prohibited by law or
such person, entity or government is in violation of law.
"Facilities Portfolio" has the meaning set forth in the Operating Partnership Agreement.
"Facilities Portfolio Manager"has the meaning set forth in the Operating Partnership Agreement.
"Fiscal Year" means the fiscal year of the Company, which shall be the calendar year;provided
that upon termination of the Company "Fiscal Year" will mean the period from the end of the last
preceding Fiscal Year to the date of such termination.
"Fiscal Quarter" means, with respect to the Company or any of its Subsidiaries, the three-month
period ending March 31,June 30, September 30 or December 31 of each year.
AMR-409736-v7B - 3 - 80-40546275
"Indemnified Parties"has the meaning set forth in Section 3.10(a).
"Indemnification Obligations"has the meaning set forth in Section 3.10(b).
"Interest" means the entire limited liability company interest of a Member in the Company at any
particular time, including the right of such Member to any and all benefits to which a Member may be
entitled as provided in this Agreement, together with the obligations of such Member to comply with all
the terms and provisions of this Agreement, including, as the case requires, any loans made by a Member
to the Company. Interest may be expressed as units of limited liability company interest, or "Operating
Company Units," with each Operating Company Unit of each class representing equal economic and
voting interests.
"IRS"means the Internal Revenue Service and any successor agency or entity thereto.
"List"has the meaning set forth in Section 2.9(f).
"Member" means each of Members set forth on Schedule I to this Agreement and any other
Person admitted as a member of the Company in accordance the terms hereof and any transferees of the
foregoing permitted hereunder who are admitted as members of the Company, but only so long as any
such Person continues in its capacity as a Member in the Company.
"Member NW I"has the meaning set forth on Schedule Ito this Agreement.
"Member NW II" has the meaning set forth on Schedule Ito this Agreement.
"Member OV" has the meaning set forth on Schedule t to this Agreement.
"Member SC" has the meaning set forth on Schedule I to this Agreement.
"OFAC"has the meaning set forth in Section 2.9(f).
"Operating Partnership"means NSA OP, LP,a Delaware limited partnership.
"Operating Partnership Agreement" means the Amended and Restated Agreement of Limited
Partnership of NSA OP, LP,as it may be amended, supplemented or restated from time to time.
"Organizational Document" means with respect to any Person (i)in the case of a corporation,
such Person's certificate of incorporation and by-laws and any shareholder agreement, voting trust or
similar arrangement applicable to any of such Person's authorized shares of capital stock, (ii)in the case
of a limited partnership, such Person's certificate of limited partnership and limited partnership
agreement, and any voting trusts or other instruments or agreements affecting the rights applicable to any
of its partners, (iii)in the case of a limited liability company, such Person's certificate of formation,
limited liability company agreement and any voting trusts or other instruments or agreements affecting
the rights of holders of limited liability company interests or(iv)in the case of any other legal entity,such
Person's organizational documents and any voting trusts and other instruments or agreements affecting
the rights of holders of equity interests in such Person.
"Person" means any individual, partnership, corporation, limited liability company, trust,
government or other legal entity.
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"REIT" means a corporation or trust making an election to be taxed as a real estate investment
trust(as defined in Section 856(a)of the Code)pursuant to Sections 856 to 860 of the Code.
"Representatives" has the meaning set forth in Section 12.1
"Securities Act" means the Securities Act of 1933,as amended.
"Subsidiary" means with respect to any Person, any entity in which such Person holds any
ownership or voting interest,whether directly or through one or more other Persons.
"Substituted Member" means any Person admitted to the Company as a Member pursuant to the
provisions of Section 9.3.
"Super Majority" means at least two-thirds of the votes represented by the members of the Board.
"Tax Matters Member" means Member SC.
"Transfer" means (i) with respect to a Member, means any transfer, sale, pledge, hypothecation,
encumbrance,assignment or other disposition, directly or indirectly, of any portion of the Interest of such
Member or the proceeds thereof(whether voluntarily, involuntarily, by operation of law or otherwise);
and (ii) the transfer, sale, pledge, hypothecation, encumbrance, assignment or other disposition, directly
or indirectly of the interests in a Member (whether voluntarily, involuntarily, by operation of law or
otherwise).
"Treasury Regulations" means the regulations promulgated under the Code, as such regulations
are in effect on the date hereof.
1.2 Terms Generally. For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the words "herein," "hereof' and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other subdivision;
(b) the words "including" and"include" and other words of similar import shall be deemed to
be followed by the phrase "without limitation"; and
(c) any reference herein to a "Schedule" is to one of the Schedules attached to this
Agreement and any reference to an Article or a Section is to one of the Articles or Sections of this
Agreement. Each of the Recitals hereto, each Schedule attached hereto and referred to herein is hereby
incorporated herein by reference.
ARTICLE 2
THE COMPANY AND ITS BUSINESS
2.1 Formation of the Company. The Company was formed as described in the Recitals
hereto. Upon the execution of this Agreement by the Members, this Agreement shall become the limited
liability company agreement of the Company.
2.2 Company Name. The business of the Company shall be conducted under the name of
"National Storage Affiliates Holdings, LLC" in the State of Delaware and under such name or such
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,log,..
assumed names as may be determined by the Chief Executive Officer to be necessary or appropriate to
comply with the requirements of any other jurisdiction in which the Company may be required to qualify.
2.3 Members.
(a) The members of the Company are the Members and such additional members as may
hereafter be admitted in accordance with the terms hereof. The names and address of the Members shall
be listed on Schedule I hereto. The Board or any officer shall adjust Schedule I from time to time to the
extent necessary to reflect the admission of new Members, the transfer of Interests or similar events
having an effect on the Members.
(b) Additional Members may be admitted from time to time (i) in connection with the
issuance of Interests by the Company and (ii) in connection with a Transfer of Membership Interests,
subject to compliance with the provisions of Article IX. In order for any Person not already a Member of
the Company to be admitted as a Member, whether pursuant to an issuance or Transfer of Interests or
otherwise, such Person shall have executed and delivered to the Company an Instrument of Accession in
the form of Exhibit A hereto and shall also comply with the procedures and conditions for the admission
of Members approved by the Chief Executive Officer. Upon the amendment of Schedule I of the
Agreement and the satisfaction of any other applicable conditions, including the receipt by the Company
of payment for the issuance of Interests, if any, such Person shall be admitted as a Member and deemed
listed as such on the books and records of the Company. The Chief Executive Officer shall also adjust the
Capital Accounts of the Members as necessary to reflect the admission of additional Members.
2.4 Term. The term of the Company shall continue in full force and effect perpetually unless
the Company is earlier dissolved as hereinafter provided.
2.5 Filing of Certificate and Amendments. The Certificate was filed with the Secretary of
State of the State of Delaware on February 13, 2013. The Members hereby agree to execute and file, or
cause to be executed and filed, any amendments to the Certificate as and when required by applicable law
and to do all other acts requisite for the constitution of the Company as a limited liability company
pursuant to the laws of the State of Delaware or any other applicable law.
2.6 Business; Scope of Members' Authority.
(a) The principal purposes of the Company shall be to engage in any lawful act or activity for
which limited liability companies may be formed under the Act and engaging in any activities necessary
or incidental to the foregoing. In furtherance of this purpose, the Company shall have all powers
desirable, necessary, suitable or convenient for the accomplishment thereof.
(b) Except as otherwise specifically provided in this Agreement, no Member shall have any
authority to bind, to act for, to execute any document or instrument on behalf of or to assume any
obligation or responsibility on behalf of, the Company or any other Member. To the fullest extent
permitted by law, no Member shall, by virtue of executing this Agreement, be responsible or liable for
any indebtedness or obligation of the Company or any other Member incurred or arising either before or
after the Effective Date.
2.7 Principal Office; Registered Agent. The principal office of the Company shall 9226
Teddy Lane, Lone Tree, Colorado 80124, or such other location or locations as may at any time or from
time to time be determined by the Chief Executive Officer. The mailing address of the Company shall be
9226 Teddy Lane, Lone Tree, Colorado 80124, or such other address as may be selected at any time or
from time to time by the Chief Executive Officer. The Company shall maintain a registered office at c/o
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Corporation Service Company, 2711 Centerville Road, Suite 400, in the City of Wilmington, County of
New Castle, State of Delaware, 19808. The name and address of the Company's registered agent is
Corporation Service Company, 2711 Centerville Road, Suite 400, in the City of Wilmington, County of
New Castle, State of Delaware, 19808.
2.8 Names and Addresses of the Members. The names, addresses,Capital Contributions and
Interests of the Members are as set forth on Schedule I.
2.9 Representations and Covenants by the Members. Each Member represents, warrants,
agrees and acknowledges that:
(a) unless it is a natural person, it is a limited liability company or statutory trust, duly
organized or formed and validly existing and in good standing as a limited liability company or statutory
trust under the laws of the state of its organization or formation; it has all requisite limited liability
company or statutory trust power and authority to enter into this Agreement, to acquire and hold its
Interest and to perform its obligations hereunder; and the execution, delivery and performance of this
Agreement has been duly authorized by all necessary limited liability company action on its behalf and on
behalf of any Person controlling it;
(b) its execution and delivery of this Agreement and the performance of its obligations
hereunder will not conflict with,result in a breach of or constitute a default(or any event that,with notice
or lapse of time, or both, would constitute a default) or result in the acceleration of any obligation under
any of the terms,conditions or provisions of any other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets are subject, conflict with or violate any of the
provisions of its Organizational Documents, or violate any statute or any order, rule or regulation of any
court or governmental or regulatory agency, body or official, that would materially and adversely affect
the performance of its duties hereunder; such Member has obtained any consent, approval, authorization
or order of any court or governmental agency or body required for the execution, delivery and
performance by such Member of its obligations hereunder;
(c) there is no action, suit or proceeding pending against such Member or, to its knowledge,
threatened in any court or by or before any other governmental agency or instrumentality which would
prohibit its entering into or performing its obligations under this Agreement;
(d) this Agreement is a binding agreement on the part of such Member enforceable against
such Member in accordance with its terms;
(e) agrees that it will not Transfer all or any part of its Interest, or solicit offers to buy from
or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any
portion of its Interest in any manner that would violate or cause the Company or any Member to violate
applicable federal or state securities laws or any other applicable laws or regulations of any governmental
authority having jurisdiction; and
(f) (i) it and each Person owning any direct or indirect interest in it is (A)not currently
identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of
Foreign Assets Control, Department of the Treasury("OFAC")and/or on any other similar list maintained
by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the "List"), and
(B)not a Person with whom a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive
Order of the President of the United States, (ii) none of the funds or other assets of it constitute property
of, or are beneficially owned, directly or indirectly, by any Embargoed Person, (iii)no Embargoed Person
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has any interest of any nature whatsoever in it(whether directly or indirectly)] (iv)none of its funds have
been derived from any unlawful activity with the result that the investment in it is prohibited by law or
that this Agreement is in violation of law, and (v) it has implemented procedures, and will consistently
apply those procedures, to ensure the foregoing representations and warranties remain true and correct at
all times.
(g) Accredited Investor Status
(i) Such Member is an Accredited Investor. As of the Effective Date, such Member
has duly executed an Accredited Investor Questionnaire indicating the basis for such
representation. Such Member understands the risks of, and other considerations relating to, the
acquisition of Interests(including any securities into which the Interests may be converted). Such
Member(a) has such knowledge, sophistication and experience in financial and business matters
and in making investment decisions of this type that it is capable of evaluating the merits and
risks of an investment in the Company and of making an informed investment decision; (b) is
capable of protecting its own interest or has engaged representatives or advisors to assist it in
protecting its interests; (c) is capable of bearing the economic risk of such investment; and (d) in
making its decision to enter into this Agreement has conducted its own due diligence, has been
represented by competent counsel and financial advisors and has not relied on oral or written
advice from the Company or its Affiliates, representatives, or agents or on representations or
warranties of the Company other than those set forth in this Agreement.
(ii) The Interests to be acquired by such Member as contemplated hereby will be
acquired for its own account for investment only and not with a view to, or with any intention of,
a distribution or resale thereof, in whole or in part,or the grant of any participation therein.
(iii) Such Member confirms and acknowledges that (a) such Member has carefully
read and understood this Agreement, (b) such Member has made such further investigations as
such Member has deemed appropriate, (c) neither the Company nor anyone else on the
Company's behalf has made any representations or warranties of any kind or nature to induce
such Member to enter into this Agreement (d) none of the Company or any of its Affiliates are
acting as fiduciary or financial or investment adviser for such Member in connection with its
decision to subscribe for the Interests, (e) such Member is not relying upon the Company or its
Affiliates for guidance with respect to tax, legal or other considerations in connection with this
prospective investment; (f) such Member has been afforded an opportunity to ask questions of,
and receive answers from, the Company, its representatives or persons authorized to act on its
behalf, concerning the terms and conditions of the offer and sale of the Interests, (g) such
Member has been afforded access to information about the Company and its financial condition
and results of operations sufficient to evaluate its investment in Interests and (g) such Member
has been afforded the opportunity to obtain any additional information necessary to verify the
accuracy of information otherwise furnished by the Company.
(iv) Such Member acknowledges that(a)the Interests to be acquired by such Member
hereunder have not been registered under the Securities Act or state securities laws by reason of a
specific exemption or exemptions from registration under the Securities Act and applicable state
securities laws; (b) the Company's reliance on such exemptions is predicated in part on the
accuracy and completeness of the representations and warranties of such Member contained
herein; (c)the Interests,therefore, cannot be resold unless registered under the Securities Act and
applicable state securities laws, or unless an exemption from registration is available; (d)there is
no public market for such Interests and no public market may develop; and (e)the Company has
no obligation to register such Interests for resale under the Securities Act or any state securities
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laws or to take any action that would make available any exemption from the registration
requirements of such laws. Such Member hereby acknowledges that because of the restrictions on
transfer or assignment of such Interests which are set forth in this Agreement, such Member may
have to bear the economic risk of the Interests issued hereby for an indefinite period of time.
ARTICLE 3
MANAGEMENT OF COMPANY BUSINESS;THE BOARD; CHIEF EXECUTIVE OFFICER
AND OTHER OFFICERS
3.1 Management by Chief Executive Officer. The business and affairs of the Company shall
be managed solely and exclusively by the Chief Executive Officer. The actions of the Chief Executive
Officer taken in accordance with the provisions of this Agreement shall bind the Company. Subject to
Section 3.5, (i) without the consent of any Member, the Chief Executive Officer is empowered and
authorized to cause the Company to take any action whatsoever, and (ii) without limiting the foregoing,
the Chief Executive Officer shall possess and exercise all of the rights and powers of a manager as
provided in the Act as the same exists as of the date hereof,including,without limitation,the following:
(a) the power and authority, without the consent of any Member, to bind the Company with
respect to all affairs of the Company; and
(b) the power and authority, without the consent of any Member, to authorize the Company
or any officer of the Company to take or cause to be taken any action in connection with the execution
and delivery of any and all documents, contracts and agreements on behalf of the Company.
3.2 No Assignment of Rights. The management rights of the Chief Executive Officer may
only be delegated,voluntarily or otherwise as expressly permitted by this Agreement.
3.3 Board Composition; Votes;Chairman
(a) The Board shall consist of four(4) Board members all of whom shall be natural persons,
each,subject to Section 3.3(b), with one(1) vote on any matters presented to the Board.Notwithstanding
any provision to the contrary, the Board shall at no time consist of more than nine(9) Board members
(b) The members of the Board shall be appointed as follows: (a) each Core Affiliate
Member, in its capacity as a Core Affiliate Member, shall be entitled to appoint one (1) member of the
Board; and (b)the person holding the office of chief executive officer of the Company, from time to time,
shall serve as member of the Board and, if such person is also appointed as member of the Board by a
Core Affiliate, such person shall be entitled to an aggregate of two (2) votes on any matters presented to
the Board. Subject to Section 3.3(a), if one or more additional Core Affiliate Members are admitted to
the Company, then the size of the Board shall be increased by such number of Board members in order to
permit each such additional Core Affiliate Member, in its capacity as a Core Affiliate Member, to appoint
one member of the Board.The initial members of the Board are set forth on Schedule II hereto.
(c) The person holding the office of chief executive officer of the Company, from time to
time, shall also serve as the chairman of the Board.
3.4 Removal of Members of the Board.
(a) A member of the Board may be removed at any time, with or without cause,by and only
by the vote or written consent of the Core Affiliate Member that appointed such Board member, except
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80-40546275
that the member of the Board holding such position as a result of being the chief executive officer of the
Company shall be removed automatically as a member of the Board, without any further action being
required, if such person no longer holds the position of chief executive officer of the Company. Any
vacancy occurring by reason of such removal or by reason of the death, resignation or inability to serve of
any such member of the Board, shall be filled by and only by the Core Affiliate Member that appointed
such Board member, except with respect to the Board member that is the chief executive officer of the
Company, where such vacancy shall be filled by the successor chief executive officer of the Company at
the time such person is appointed to such office.
(b) Any Board member so appointed under Section 3.3 or this Section 3.4 shall serve until
his or her successor is duly elected and qualified, or his or her earlier death, resignation or removal as
provided herein.
3.5 Decisions by the Board
(a) Notwithstanding the provisions of Section 3.1 or any other provision of this Agreement,
unless approved by the Board, the Chief Executive Officer shall not take or cause or permit the Company
to take any of the following actions and the Company shall not, and shall not enter into any commitment
to:
(i) enter into financing and refinancing of Facilities Portfolio;
(ii) enter into the acquisition of any additional Facilities Portfolio;
(iii) establish recommendations for "best practices" for adoption by the Facilities
Portfolio Managers;
(iv) admit additional Members;
(v) except the initial Interests held by the Members as of the date of this Agreement,
issue additional Interests of the Company;
(vi) designate Core Affiliate Members; and
(vii) the payment of distributions by the Operating Partnership.
(b) Except as set forth in Section 3.5(c), any action of the Board shall require the approval of
members of the Board representing a majority of the votes of the Board.
(c) Notwithstanding anything contained in Section 3.5(b), the Company shall not amend this
Agreement, the Certificate or any other Organizational Document of the Company or the Operating
Partnership unless approved by members of the Board holding a Super Majority.
(d) The Board shall have the right by providing thirty days prior written notice to the Chief
Executive Officer to remove the Chief Executive Officer for Cause.
3.6 Board Meetings; Quorum;Notice of Meetings; Written Consents.
(a) Members of the Board representing a majority of the votes of the entire Board shall
constitute a quorum for the conduct of business of the Board.
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(b) Regular meetings of the Board shall be held on dates to be determined by the Board, at
the principal offices of the Company or such other place as may be determined by the Chief Executive
Officer, pursuant to written notice to the Board members stating the date and hour of each such regular
meeting. Special meetings of the Board, which are to be held at the principal offices of the Company or
such other place as may be determined by the Chief Executive Officer, may be called by any Board
member pursuant to written notice to the other Board members stating the date and hour of the meeting
and the purpose or purposes for which the meeting is called. Notice of a meeting shall be delivered not
less than three nor more than 30 days before the date of such meeting, either in person, by facsimile
transmission, electronic mail or by mail, by or at the direction of any Board member, to the other Board
members;provided that any Board member may waive such notice by attendance or in writing.
(c) Any matter to be decided by the Board may be passed by written consent signed by the
requisite number of members of the Board required by the members of the Board to vote on such matter;
provided, that a copy of such written consent shall be provided promptly to any Board members who did
not sign such consent. Electronically transmitted signatures shall be acceptable for this purpose. Any
written consent so signed is valid and effective as if passed at a meeting duly called, constituted and held
for that purpose with a quorum of members of the Board present in person
(d) At each meeting of the Board, the chairman of the Board or, in the absence of the
chairman, the vice chairman of the board, if any, shall act as chairman of the meeting. In the absence of
both the chairman and vice chairman of the Board, the Chief Executive Officer or, in the absence of any
chief executive officer,the president or,in the absence of the president, a director chosen by a majority of
the Board members present, shall act as chairman of the meeting. The secretary or, in his or her absence,
an assistant secretary of the Corporation, or, in the absence of the secretary and all assistant secretaries, an
individual appointed by the chairman of the meeting, shall act as secretary of the meeting. Board
members may participate in a meeting by means of a conference telephone or other communications
equipment if all persons participating in the meeting can hear each other at the same time. Participation in
a meeting by these means shall constitute presence in person at the meeting.
3.7 Company Acts. When the taking of Company action has been authorized pursuant to the
provisions of this Agreement, any officer or manager of the Company may execute any contract or other
agreement or document on behalf of the Company.
3.8 Compensation. The members of the Board shall serve in such capacities without
compensation.
3.9 Officers. The Company shall have officers as may be decided by the Chief Executive
Officer from time to time. The initial officers of the Company shall be as set forth on Schedule III hereto.
Each officer is authorized to sign on behalf of the Company and are each an Authorized Person. The
specific powers and duties of the officers other than the Chief Executive Officer, which are provided for
herein, shall be provided for by the Chief Executive Officer.
3.10 Exculpation; Indemnification.
(a) No Member, nor any agent of any Member (including any designee or appointee to the
Board), nor any officer of the Company (collectively, the "Indemnified Parties") shall be liable to any
Member, Affiliate of any Member, the Company, or any Subsidiary of the Company, for mistakes of
judgment or for any action or inaction, unless such liability is attributable to willful misconduct,
negligence,breach of this Agreement or knowing violation of law by the Indemnified Party; nor shall any
Indemnified Party be liable to any of the above-described Persons for any action or inaction of any
employee or other agent of such Indemnified Party, the Company, the Board, or any Subsidiary of the
AMR-409736-v7B - 11 - 80-40546275
Company;provided that such employee or agent was not selected, engaged, appointed or retained by such
Indemnified Party in violation of this Agreement or through willful misconduct, negligence or knowing
violation of law. To the fullest extent permitted by law, each Member shall indemnify and hold harmless
the Company and the other Members and their Affiliates (including any designee or appointee to the
Board) from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other
proceedings, judgments and awards, and costs and expenses (including, but not limited to, reasonable
attorneys' fees) arising, directly or indirectly, in whole or in part, out of the willful misconduct,
negligence, breach of this Agreement or knowing violation of law by such Member, its Affiliates and/or
an agent of such Member(including any designee or appointee to the Board).
(b) Each Indemnified Party shall be indemnified and held harmless by the Company from
and against any and all losses, claims, damages, liabilities, expenses (including legal and other
professional fees and disbursements),judgments, fines, settlements, and other amounts (collectively, the
"Indemnification Obligations") arising from any and all claims, demands, actions, suits or proceedings
(civil, criminal, administrative or investigative), actual or threatened, in which such Indemnified Party
may be involved, as a party or otherwise, by reason of such Indemnified Party's ownership of an Interest
in, service to or on behalf of, or management of the affairs of, the Company or any Subsidiary thereof, or
rendering of advice or consultation with respect thereto, or that relate to such Indemnified Party's status
as a Member,member of the Board,officer of the Company, designator of a member to the Board, or that
relate to such Indemnified Party's service at the request of the Company as a director, officer, employee
or agent of another Person, provided that, if such Indemnification Obligation resulted from a mistake of
judgment,or from action or inaction,of such Indemnified Party,such mistake or action or inaction did not
result from a breach of this Agreement, willful misconduct, negligence or a knowing violation of law by
such Indemnified Party. The Company shall also indemnify and hold harmless an Indemnified Party
from and against any Indemnification Obligation suffered or sustained by it, him or her by reason of any
action or inaction of any employee or other agent of an Indemnified Party; provided that such employee
or agent was not selected, engaged, appointed or retained by the Indemnified Party through willful
misconduct, bad faith or knowing violation of law. The termination of a proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a
presumption that such Indemnification Obligation resulted from the willful misconduct, bad faith or
knowing violation of law of the Indemnified Party. Expenses (including legal and other professional fees
and disbursements) incurred in any proceeding shall be paid by the Company in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of the Indemnified Party to
reimburse such advances if it should ultimately be determined that such Indemnified Party is not entitled
to be indemnified by the Company as authorized hereunder.
(c) The indemnification provided by this Section 3.10 shall not be deemed to be exclusive of
any other rights to which each Indemnified Party may be entitled under any agreement, or as a matter of
law, or otherwise, both as to action in such Indemnified Party's official capacity and to action in another
capacity, and shall continue as to such Indemnified Party who has ceased to have an official capacity for
acts or omissions during such official capacity or otherwise when acting at the request of the Board and
shall inure to the benefit of the heirs, successors and administrators of such Indemnified Party.
(d) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 3.10
shall not be construed so as to provide for the indemnification of an Indemnified Party for any liability to
the extent (but only to the extent)that such indemnification would be in violation of applicable law or that
such liability may not be waived, modified or limited under applicable law (including the Act), but shall
be construed so as to effectuate the provisions of this Section 3.10 to the fullest extent permitted by law
(including the Act).
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ARTICLE 4
RIGHTS AND DUTIES OF MEMBERS
4.1 Compensation of Members and Their Affiliates. No Member, nor any of their respective
Affiliates, shall be entitled to compensation from the Company in connection with any matter that may be
undertaken in connection with the fulfillment of its duties and responsibilities hereunder, except as
otherwise approved by the Chief Executive Officer.
4.2 Use of Company Assets. No Member shall make use of the funds or property of the
Company, or assign its rights to specific Company Assets, other than for the business or benefit of the
Company.
4.3 Limited Liability of Members. Each Member's liability, in its capacity as a member of
the Company,shall be limited or eliminated to the extent permitted by the Act and other applicable law.
4.4 Waiver of Fiduciary Duties. To the maximum extent permitted by applicable law, no
Member, member of the Board or officer in its or their capacity as such, shall have any duty (including
any fiduciary duty) to the Company, its Members or any other Person, including any fiduciary duty
associated with self-dealing or corporate opportunities, all of which are hereby expressly waived,
provided that, this Section 4.4 shall not in any way reduce or otherwise limit the specific obligations of
any Person expressly provided in this Agreement and such other obligations, if any, as are required by
applicable laws.
ARTICLE 5
REPORTS;BOOKS AND RECORDS
5.1 Tax Year. The taxable year of the Company shall be the Fiscal Year unless another year
end is required under the Code or the Treasury Regulations.
5.2 Banking. The funds of the Company and each Subsidiary shall be kept in separate
accounts designated by the Chief Executive Officer,and all withdrawals therefrom shall be made on such
signature or signatures as shall be designated by the Chief Executive Officer.
5.3 Books of Account. The Company's and its Subsidiaries' books of account shall be
maintained at the principal office of the Company or at such other locations and by such Person or
Persons as may be designated by the Chief Executive Officer. The Company shall pay the expense of
maintaining its books of account. Each Member and each Board member shall have, during reasonable
business hours and upon reasonable prior notice, access to the books of the Company and its Subsidiaries
and in addition, at such Member's or Board member's expense,the right to copy such books.
5.4 Tax Elections. Except as specifically provided otherwise herein, all elections and
decisions for purposes of Federal, state and local taxes shall be made by the Chief Executive Officer in
his or her discretion. The Company, however, shall not elect to be taxed as other than a "partnership" for
Federal income tax purposes. Also, in case of a distribution of property made in the manner provided in
Section 734 of the Code (or any similar provision enacted in lieu thereof), or in the case of a Transfer of
any Interest in the Company permitted by this Agreement made in the manner provided in Section 743 of
the Code (or any similar provision enacted in lieu thereof), the Chief Executive Officer, on behalf of the
Company, may in its discretion file an election under Section 754 of the Code (or any similar provision
enacted in lieu thereof)in accordance with the procedures set forth in the applicable Regulations.
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5.5 Tax Matters Partner. The Tax Matters Member shall serve as the "tax matters partner" of
the Company and, while serving in such capacity, shall have all the rights and obligations of the tax
matters partner of the Company under the Code and Regulations; provided, however, in such capacity the
Tax Matters Member shall act at the direction of the Chief Executive Officer. The Members further agree
as follows:
(a) The Tax Matters Member shall provide the IRS with sufficient information so that proper
notice can be mailed to all the Members as provided in Section 6223 of the Code, and shall take such
action as may be reasonably necessary to cause each other eligible Member to become a "notice partner"
within the meaning of Code Section 6231(a)(8). The Members shall have a continuing obligation to
furnish the Tax Matters Member with such information (including information specified in Code Section
6230(e))as the Tax Matter Member may reasonably request for such purposes;
(b) The Tax Matters Member shall keep each Member informed of all administrative and/or
judicial proceedings for the adjustment of partnership items (as defined in Code Section 6231(a)(3) and
the Regulations promulgated thereunder) at the Company level,any extension of the statute of limitations,
filing of a request for administrative adjustment, filing of a suit concerning any tax refunds or deficiency
relating to any Company administrative adjustment or entering into any settlement agreement relating to
any Company item of income, gain, loss, deduction or credit far any Fiscal Year of the Company;
(c) This Section 5.5 is not intended to authorize the Tax Matters Member to take any action
left to the determination of an individual Member under Code Sections 6222 through 6231;
(d) The Members shall notify the Tax Matters Member and the other Members of any
settlement agreement entered into by such Member with the IRS regarding the Company, any suit
concerning an administrative adjustment with respect to the taxes of the Company, and, upon the request
of the Tax Matters Member, shall notify the Tax Matters Member of their treatment of any company item
on their federal income tax return, if applicable, which is or maybe inconsistent with the treatment of that
item on the Company's return;and
(e) The Company shall indemnify and reimburse the Tax Matters Member for any expenses,
including legal and accounting fees, claims, liabilities, losses and damages incurred in connection with
any administrative or judicial proceeding with respect to the tax liability of the Company or in connection
with any audit of the Company's federal income tax returns, except to the extent such expenses claims,
liabilities, losses and damages are attributable to the gross negligent or willful misconduct of the Tax
Matters Member.
ARTICLE 6
CAPITAL CONTRIBUTIONS,LOANS AND LIABILITIES
6.1 Capital Contributions. The Capital Contributions of each Member shall be as shown on
Schedule I. In exchange for such Capital Contribution, each Member shall receive Operating Company
Units in such amounts set forth opposite such Member's name on Schedule I.
6.2 Additional Capital Contributions. The Members shall not be required to make any
additional capital contributions to the Company, provided that, one or more of the Members may make
additional capital contributions to the Company and in such amounts as may be agreed by the Member
making such additional Capital Contribution and the Chief Executive Officer from time to time.
AMR-409736-v7B - 14- 80-40546275
6.3 Capital of the Company. Except as otherwise expressly provided for in this Agreement,
no Member shall be entitled to withdraw or receive any interest or other return on, or return of, all or any
part of its Capital Contribution, or to receive any Company Assets (other than cash) in return for its
Capital Contribution. No Member shall be entitled to make a Capital Contribution to the Company
except as expressly authorized by this Agreement.
6.4 Limited Liability of the Members. All debts and obligations of the Company shall be
paid or discharged solely with Company Assets and no Member shall be obligated to pay or discharge
such debts or obligations except to the extent required by applicable law. For the avoidance of doubt, no
Member shall be liable for the return of the Capital Contribution of any other Member.
ARTICLE 7
CAPITAL ACCOUNTS AND TAX ALLOCATIONS
7.1 Capital Accounts.
(a) The Company shall maintain a capital account (each, a "Capital Account") for each
Member in accordance with Treasury Regulations section 1.704-1(b).
(b) A transferee of all (or a portion) of an Interest will succeed to the Capital Account (or
portion of the Capital Account)attributable to the transferred Interest.
ARTICLE 8
DISTRIBUTIONS OF AVAILABLE CASH
8.1 Distributions of Available Cash. The Chief Executive Officer shall distribute funds at
such times and in such amounts as it determines. In determining the amount of funds to distribute
pursuant to this Section 8.1, the Chief Executive Officer may consider such factors as the need to allocate
funds to any reserves for Company contingencies or any other Company purposes that the Chief
Executive Officer reasonably deems necessary or appropriate. Any distributions to Members shall be
made in accordance with their relative holdings of Operating Company Units. Notwithstanding the
foregoing, distributions made in connection with a sale of all or substantially all the Company's assets or
a liquidation of the Company shall be made in accordance with the capital account balance of the
Members within the time period set forth in Treasury Regulation Section 1.704-1(b)(2)(ii)(B)(3).
8.2 Limitations on Distributions. Notwithstanding any provision to the contrary contained in
this Agreement, the Company shall not be required to make a distribution to a Member on account of its
Interest if such distribution would violate Section 18-607 of the Act or any other applicable law.
ARTICLE 9
TRANSFER OF INTERESTS
9.1 Limitations on Transfer of Interests by Members.
(a) Subject to Section 9.2, no Member shall engage in or permit any Transfer, directly or
indirectly, all or any portion of such Member's Interest other than as specifically permitted by this Article
9. Any purported Transfer in violation of this Article 9 shall be void and of no force and effect, and shall
not bind the Company, and the Member making such purported Transfer shall, to the fullest extent
AMR-409736-v7B - 15 - 80-40546275
permitted by law, indemnify and hold the Company and the other Members harmless from and against
any federal, state or local income taxes, or transfer taxes arising as a result of, or caused directly or
indirectly by, such purported Transfer. In order to effectuate the purpose of this Section 9.1,each Member
agrees that except as expressly authorized in Section 9.2, no Transfer or other disposition of any stock,
partnership, limited liability company interest, or other beneficial interest in any Member or other such
Person which holds an Interest will be effected, directly or indirectly, unless approved by the Chief
Executive Officer.
(b) Any transferee of an Interest or a portion thereof by any means shall have only the rights,
powers and privileges provided by law and shall not become a Member of the Company except as
provided in this Article 9.
9.2 Permitted Transfers.
(a) Notwithstanding Section 9.1(a): (1) a Member may Transfer, directly or indirectly, all or
any portion its Interest (i)to any Person other than a Person described in clauses (ii), (iii) or(iv) of this
subsection (1) below with the prior written consent of the Chief Executive Officer, (ii) to any other
Member or its Affiliates, (iii) to a wholly-owned Subsidiary of a Member,or(iv) in the case of a Member
who is an individual, to a member of such Member's Family or to a trust, limited liability company,
partnership or other entity the ownership interests in which are held entirely by such Member and his
Family and the beneficiaries of which are members of such Member's Family, in each case provided such
Transfer is for estate planning purposes and in each case provided that the individual Member retains
effective voting control over such Interest.
9.3 Substituted Members.
(a) Any Member that assigns all of its Interests pursuant to an assignment or assignments
permitted under this Agreement shall cease to be a Member of the Company except that unless and until a
Substituted Member is admitted in its stead, the assigning Member shall not cease to be a Member of the
Company under the Act and shall retain the rights and powers of a Member under the Act and hereunder.
Any assignee of any portion of the Interest of a Member that has satisfied the requirements of Article 9
shall become a Substituted Member only when (i) such Transfer is recorded in the books of the
Company; (ii) an executed or authenticated copy of the instrument of assignment or other Transfer
document is delivered to the Chief Executive Officer; (iii) either (1) the Transfer of such Interest is the
subject of a registration statement that has been declared effective under the Securities Act and the rules
and regulations promulgated thereunder or(2)unless waived by the Chief Executive Officer, the Member
making such Transfer provides a written opinion, addressed to the Company, of counsel for the Member
(which counsel shall be reasonably satisfactory to the Company), stating that in the opinion of such
counsel (which opinion shall be reasonably satisfactory to the Company)such proposed Transfer does not
involve a transaction requiring registration of such Interest under the Securities Act and the rules and
regulations promulgated thereunder(provided, however,that no such opinion of counsel shall be required
in connection with any such Transfer to an "accredited investor" (as such term is defined in Rule 501
promulgated under the Securities Act) upon receipt by the Company of reasonably satisfactory evidence
of the status of such transferee as such (which evidence may consist of a representation letter of such
transferee to such effect)); (iv) after such Transfer, the Company will continue to be classified as a
"partnership" for Federal income tax purposes and not as an association or publicly traded partnership
taxable as a corporation unless the Company has elected to be taxed as a REIT; (v)the transferee pays all
of the Company's reasonable costs and expenses in connection with such Transfer, including the
reasonable fees and expenses of counsel to the Company; (vi) the transferee executes and delivers to the
Company an Instrument of Accession in the form of Exhibit A hereto; and(vii)such Transfer,when taken
together with other prior Transfers, if any, will not result in a "termination" of the Company for Federal
AMR-409736-v7B - 16 - 80-40546275
income tax purposes under Code Section 708(b)(1)(B) unless such termination would not have an adverse
effect on the Members.
(b) Any Person who is a permitted assignee of any of the Interest of a Member but who does
not become a Substituted Member and desires to make a further assignment of any such Interest shall be
subject to all the provisions of this Article 9 to the same extent and in the same manner as any Member
desiring to make an assignment of its Interest.
(c) To the extent that the right to receive distributions from the Company that was initially
held by a Member has been lawfully transferred to a Person who has not been admitted as a Substituted
Member, the Company shall make any distributions pursuant to Article 8 and any corresponding
allocations pursuant to Article 7 that relate to such Interest to transferee as through such transferee was a
Substituted Member.
(d) Each party hereto authorizes the Chief Executive Officer to modify Schedule I as
required to reflect Transfers of Interests, and any such modification shall be binding on all such parties in
the absence of manifest error.
ARTICLE 10
DISSOLUTION OF THE COMPANY;
WINDING UP AND DISTRIBUTION OF ASSETS
10.1 Dissolution.
(a) The Company shall be dissolved and its affairs shall be wound up only upon the first to
occur of the following:
(1) the direction of the Chief Executive Officer, having received the consent of
members of the Board holding a Super Majority;
(2) the entry of a decree of judicial dissolution under Section 18-802 of the Act;or
(3) 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 business of the Company is
continued in a manner permitted by this Agreement or 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,
to the fullest extent permitted by law, the personal representative of such Member is hereby
authorized and directed to,and shall,within ninety(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 in the Company.
(b) Except with the prior consent of the Members or in accordance with a Transfer pursuant
to Article 9, no Member shall have the right to (i) withdraw or resign as a Member of the Company,
(ii)redeem, or otherwise require redemption of, its Interest or any part thereof or(iii)to the fullest extent
permitted by law, dissolve itself voluntarily.
AMR-409736-v78 - 17 - 8040546275
(c) Notwithstanding any other provision of this Agreement, the Bankruptcy of any Member
shall not cause that Member to cease to be a Member of the Company and upon the occurrence of such an
event, the business of the Company shall continue without dissolution. To the fullest extent permitted by
law, the Company shall not be dissolved or terminated solely by reason of the Bankruptcy, death,
removal,withdrawal,dissolution or admission of any Member.
10.2 Winding Up.
(a) In the event of the dissolution of the Company pursuant to Section 10.1(a), the Chief
Executive Officer or a liquidating trustee shall wind up the Company's affairs.
(b) Upon dissolution of the Company and until the filing of a certificate of cancellation as
provided in the Act, the Chief Executive Officer or a liquidating trustee, as the case may be, may, in the
name of, and for and on behalf of, the Company, prosecute and defend suits, whether civil, criminal or
administrative, gradually settle and close the Company's business, dispose of and convey the Company
Assets, discharge or make reasonable provision for the Company's liabilities, and distribute to the
Members in accordance with Section 10.3 any remaining Company Assets, all without affecting the
liability of Members and without imposing liability on any liquidating trustee.
(c) Upon the completion of winding up of the Company, the Chief Executive Officer or
liquidating trustee,as the case may be, shall cause the filing of a certificate of cancellation in the Office of
the Secretary of State as provided in the Act. The existence of the Company as a separate legal entity
shall continue until cancellation of the Certificate as provided in the Act.
10.3 Distribution of Assets. Upon the winding up of the Company, the Company Assets shall
be distributed as follows:
(a) to the satisfaction of debts and liabilities of the Company (whether by payment or the
making of reasonable provision for payment thereof), in order of priority as provided by law, other than
debts and liabilities owed to Members, including to the payment of expenses of the liquidation and to the
setting up of any reserves that the Members acting together or the liquidating trustee, as the case may be,
shall determine are reasonably necessary for any contingent, conditional or unmatured liabilities or
obligations of the Company;
(b) to the satisfaction of debts and liabilities of the Company owed to Members, including
without limitation any Company Loans;and
(c) to the Members in accordance with the provisions of Section 8.1 hereof.
ARTICLE 11
AMENDMENTS
11.1 Amendments. This Agreement may only be amended in accordance with Section 3.5(c).
ARTICLE 12
MISCELLANEOUS
12.1 Confidentiality.
AMR-409736-v7B - 18 - 80-40546275
(a) The terms and conditions of this Agreement and the transactions contemplated hereby
shall be held by the Members in strict confidence and shall not be disclosed to anyone without the consent
of the Chief Executive Officer, provided that such disclosure may be made (i) to such Member's
Representatives (as defined below), (ii) to such Member's lenders and investors providing financing
and/or capital to such Member, provided that such lenders and investors are bound by confidentiality
agreements containing restrictions substantially similar to those set forth herein, (iii) as required by law,
regulation or legal proceedings, including, without limitation, pursuant to securities disclosure laws, and
(iv) upon execution of a confidentiality agreement reasonably satisfactory to the Chief Executive Officer,
to prospective transferees of Interests where such Interests may be transferred without the consent of the
other Member pursuant to Section 9.2.
(b) The Members acknowledge that prior to the date hereof, each of the Members and their
Affiliates and the other parties hereto have furnished to the other certain information,which is either non-
public,confidential or proprietary in nature. Each of the Members, on its own behalf and on behalf of its
Affiliates, agrees that all such information furnished or otherwise obtained, directly or indirectly, by such
Member, its directors, officers, partners, employees, agents or representatives including, without
limitation, attorneys, accountants, partners, experts and consultants (collectively, "Representatives") and
all reports, analysis, compilations, data, studies or other documents prepared by such party or its
Representatives containing or based on,in whole or in part, any such furnished information(collectively,
the"Information") shall be kept strictly confidential and shall not, without the prior written consent of the
Chief Executive Officer, be disclosed to any other Person in any manner whatsoever, in whole or in part,
and shall not be used for any purpose other than the purpose of the Company as described herein;
provided, that the foregoing restrictions shall not apply (i) to the disclosure of the Information by a
Member to its Representatives, (ii) to previously confidential information that has been made public
through no fault of the Member who received such information, (iii) to confidential information that was
known by the Member receiving it prior to such receipt, or (iv) if the Member who received such
confidential information is required to disclose such information to comply with laws, regulations
(including, without limitation, pursuant to the securities disclosure laws) or as a result of legal
proceedings. This confidentiality provision shall survive during the term of the Company and for a period
of one year after its dissolution.
12.2 Further Assurances. Each Member agrees to execute, acknowledge, deliver, file and
record such further certificates,amendments, instruments and documents and to do all such other acts and
things as may be necessary or advisable to carry out the intent and purpose of this Agreement.
12.3 Notices. Unless otherwise specified in this Agreement, all notices, demands, elections,
requests or other communications that any party to this Agreement may desire or be required to give
hereunder shall be in writing and shall be given by hand by depositing the same in the United States mail,
first class postage prepaid, certified mail, return receipt requested, or by a recognized overnight courier
service providing confirmation of delivery, to the addresses set forth on Schedule I or at such other
address as may be designated by the addressee thereof upon written notice to all of the Members. Any
notices to the members of the Board shall be sent care of the Members which appointed the members of
the Board. All notices given pursuant to this Section 12.3 shall be deemed to have been given (i) if
delivered by hand, on the date of delivery or on the date delivery was refused by the addressee or(ii) if
delivered by United States mail or by overnight courier, on the date of delivery as established by the
return receipt or courier service confirmation (or the date on which the return receipt or courier service
confirms that acceptance of delivery was refused by the addressee).
12.4 Headings and Captions. All headings and captions contained in this Agreement and the
tables of contents hereto are inserted for convenience only and shall not be deemed a part of this
Agreement.
AMR-409736-v713 - 19 - 8040546275
12.5 Variance of Pronouns. All pronouns and all variations thereof shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the person or entity may require.
12.6 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original and all of which, when taken together, shall constitute one agreement.
Delivery of this Agreement may be effected by facsimile.
12.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
12.8 Consent to Jurisdiction. To the fullest extent permitted by law, each Member hereby
irrevocably accepts and submits, for any action arising out of matters related to this Agreement, to the
exclusive jurisdiction of any city, state or federal court located in the Borough of Manhattan, The City of
New York or a federal or state court in the State of Delaware.
12.9 Partition. The Members hereby agree that no Member nor any successor-in-interest to
any Member shall have the right to have any Company Asset partitioned,or to file a complaint or institute
any proceeding at law or in equity to have any Company Asset partitioned, and each Member, on behalf
of himself,his successors,representatives, heirs and assigns, hereby waives any such right.
12.10 Invalidity.
(a) Every provision of this Agreement is intended to be severable. The invalidity and
unenforceability of any particular provision of this Agreement in any jurisdiction shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
(b) The provisions of this Agreement were negotiated in good faith by the parties hereto,and
the parties hereto agree that such provisions are reasonable and are not more restrictive than necessary to
protect the legitimate interests of the parties hereto. It is the intention of the parties hereto that if any
restriction or covenant contained herein is held to be for a length of time that is not permitted by
applicable law, or is any way construed to be too broad or to any extent invalid, such provision shall not
be construed to be null, void and of no effect, but to the extent such provision would be valid or
enforceable under applicable law, a court of competent jurisdiction shall construe and interpret or reform
such provision to provide for a restriction or covenant having the maximum time period and other
provisions (not greater than those contained herein) as shall be valid and enforceable under applicable
law.
12.11 Successors and Assigns. This Agreement shall be binding upon the parties hereto and
their respective successors, executors, administrators, legal representatives, heirs and legal assigns and
shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective
successors, executors, administrators, legal representatives, heirs and legal assigns. No Person other than
the parties hereto and their respective successors, executors, administrators, legal representatives, heirs
and permitted assigns shall have any rights or claims under this Agreement.
12.12 Entire Agreement. This Agreement supersedes all prior agreements among the parties
with respect to the subject matter hereof and contains the entire Agreement among the parties with respect
to such subject matter.
AMR-409736-v7B -20- 80-40546275
12.13 Waivers. No waiver of any provision hereof by any party hereto shall be deemed a
waiver by any other party nor shall any such waiver by any party be deemed a continuing waiver of any
matter by such party.
12.14 Brokers. Each of the Members hereto warrants to each of the other Members that they
have dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in
connection with the execution of this Agreement and the transactions related thereto. Each Member
agrees to indemnify and hold harmless each other Member for all reasonable out-of-pocket costs,
damages or other expenses actually incurred by such Member arising out of any misrepresentation made
in this Section 12.14.
12.15 No Third Party Beneficiaries. This Agreement is not intended and shall not be construed
as granting any rights, benefits or privileges to any Person not a party to this Agreement. Without
limiting the generality of the foregoing, no creditor of the Company or of any Member shall have any
right whatsoever to require any Member to contribute capital to the Company or otherwise enforce any
provision of this Agreement against any Member.
12.16 Construction of Documents. The parties hereto acknowledge that they were represented
by separate and independent counsel in connection with the review, negotiation and drafting of this
Agreement and that this Agreement shall not be subject to the principle of construing its meaning against
the party that drafted same.
12.17 Time of the Essence. Time is of the essence in the performance of each and every term
of this Agreement.
[Signature page follows.]
AMR-409736-v7B - 21 - 80-40546275
•
IN WITNESS WHEREOF,the parties hereto have executed this Limited Liability Company Agreement
as of the date first above written.
MEMBERS:
Member OV:
Van Mourick Diversified,LP
BY: Robert Ahlke,its general partner
j
Robert Ahike
Member SC:
SecurCare Self Storage,Inc.
By:
Name:Arlen D.Nordhagen
Title:
Member NW 1:
Warren Limited Partnership Il
By: J.Timothy Warren,its general partner
J.Timothy Warren
Member NW 11:
Kevin M.Howard
AMR409736-v7B Slgnaturc page to Limited Llobttlry Company 80-4OS46273
Agreement of
Nation!Storage Affiliates Holdings,LLC
From:Nation& Stow oe AI}il later 303 604 0360 06/17/2074 10:31 30044 P.009/010
IN WITNESS WHEREOF,the parties hereto have executed this Limited Liability Company Agreement
as of the date first above written.
MEMBERS:
Member OV:
Van Mourick Diversified,LP
By: Robert Ahlke, its general partner
Robert Ahlke
Member SC:
SecurCare Self Storage, Inc.
By: (IL-61
Name: Arlen D. Nordhagen
Title: P e /CI e
Member NW I:
Warren Limited Partnership U
By: J.Timothy Warren,its general partner
J.Timothy Warren
Member NW II:
Kevin M. Howard
AMR-40973(-.103 Signature page ro Limired!./ability Company 80-4U546275
Agreement of
National Storage AfJiliaics Holdings,CLe
IN WITNESS WHEREOF,the parties hereto have executed this Limited Liability Company Agreement
as of the date first above written.
MEMBERS:
Member OV:
Van Mouriok Diversified,LP
By: Robert Ahike,its general partner
Robert Mike
Member SC:
SecarCare Self Storage,Inc.
By:
Name:Men D.Nordhagen
Title:
Member NW I:
Warren Limited Partnership H
By: J.Timothy Warren,its general partner
tig
atlryr Warren
Member NW II: I
"Kevin M.Howard
AMR-409736-0B Signature page to Limited Liability Company 8040546275
Agreement of
National Storage Affiliate;Holdintgs,OC
Schedule I
Name,Address, Capital Contributions and Interests of Members
Member Address Capital Contributions Operating
Company Units
Warren Limited c/o National Storage $92,000.00 18,400
Partnership II Affiliates
("Member NW I") 9226 Teddy Lane
Lone Tree,CO 80124
Kevin M. Howard c/o National Storage $92,000.00 18,400
("Member NW II") Affiliates
9226 Teddy Lane
Lone Tree,CO 80124
Van Mourick c/o National Storage $168,000.00 33,600
Diversified, LP Affiliates
("Member OV") 9226 Teddy Lane
Lone Tree, CO 80124
SecurCare Self Storage, c/o National Storage $280,000.00 56,000
Inc Affiliates
("Member SC") 9226 Teddy Lane
Lone Tree, CO 80124
AMR-409736-v7B 80-40546275
Schedule II
Initial Board Members
Member NW I
J.Timothy Warren
Member OV
Warren Allan
Member SC
Tamara Fischer
Chief Executive Officer and Chairman of the Board
Arlen D.Nordhagen
AMR-409736-v713 80-40546275
Schedule III
Initial Officers of the Company
l) Arlen D. Nordhagen- Chief Executive Officer
2) Tamara Fischer—Chief Financial Officer and Secretary
AMR-409736-v7B 80-40546275
Exhibit A
Instrument of Accession
The undersigned, , as a condition precedent to
becoming the owner or holder of record of an Interest of National Storage Affiliates Holdings, LLC, a
Delaware limited liability company(the"Company"), hereby agrees to become a Member under, party to
and bound by that certain Limited Liability Company Agreement dated as of
, as amended from time to time (the "Agreement") by and among the
Company, the Members of the Company and the other signatories thereto. This Instrument of Accession
shall take effect and shall become an integral part of the said Agreement immediately upon execution and
delivery to the Company of this Instrument.
IN WITNESS WHEREOF, the undersigned has caused this INSTRUMENT OF
ACCESSION to be signed as of the date below written.
Signature:
Address:
Date:
Accepted:
By:
Date:
AMR-409736-v7B 80-40546275
1
EXHIBIT A
FIRST AMENDMENT TO THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
NATIONAL STORAGE AFFILIATES HOLDINGS,LLC
This First Amendment to the Amended and Restated Limited Liability Company
Agreement (this "Amendment") of National Storage Affiliates Holdings, LLC, a Delaware
limited liability company(the "Company") is effective as of the 27th day of February, 2014.
WHEREAS, reference is made to the Amended and Restated Limited Liability Company
Agreement of the Company, dated as of June 20, 2013 (the "LLC Agreement") and capitalized
terms used and not otherwise defined herein shall have the meanings given to such terms in the
LLC Agreement;
WHEREAS, pursuant to Sections 11.1 and 3.5 of the LLC Agreement, the Board has the
authority to amend the LLC Agreement without further action by the members of the Company;
WHEREAS, the Board wishes to amend Section 3.5 of the LLC Agreement to
additionally provide for appointments to the Board by approval of members of the Board holding
a Super Majority;
WHEREAS, in connection with and pursuant to the foregoing amendment, the Board
wishes to appoint John Minar to the Board; and
WHEREAS, the Board wishes to make certain additional changes to the LLC Agreement.
NOW,THEREFORE, the Board amends the LLC Agreement as follows:
Section 1. Amendment.
(A) In Section 1.1 of the LLC Agreement, the definition of "Super
Majority" is hereby amended and restated in its entirety as set forth
below:
"Super Majority" means at least two-thirds of the votes represented by the members of the Board
entitled to vote on any matter.
(B) Section 3.3 of the LLC Agreement is hereby amended and restated
in its entirety as set forth below:
3.3 Board Composition; Votes; Chairman.
(a) The Board shall consist of natural persons, each, subject to Section 3.3(b), with
one (1) vote on any matters presented to the Board. Notwithstanding any provision to the
contrary, the Board shall at no time consist of more than nine(9) Board members.
r
(b) The members of the Board shall be appointed as follows: (a) each Core Affiliate
Member, in its capacity as a Core Affiliate Member, shall be entitled to appoint one (1) member
of the Board; (b) the person holding the office of chief executive officer of the Company, from
time to time, shall serve as member of the Board and, if such person is also appointed as member
of the Board by a Core Affiliate Member, such person shall be entitled to an aggregate of two
votes on any matters presented to the Board and (c) such other persons as may be appointed from
time to time by the Board by approval of members of the Board holding a Super Majority.
Subject to Section 3.3(a), if one or more additional members are appointed to the Board by the
Board pursuant to this Section 3.3(b), then the size of the Board shall be increased by such
number of Board members to reflect such appointments. The members of the Board are set forth
on Schedule II hereto as in effect from time to time.
(c) The person holding the office of chief executive officer of the Company, from
time to time, shall also serve as the chairman of the Board.
(C) Section 3.4 of the LLC Agreement is hereby amended and restated
in its entirety as set forth below:
3.4 Removal of Members of the Board.
(a) A member of the Board appointed pursuant to Section 3.3(b)(a) may be removed
at any time, with or without cause by and only by the vote or written consent of the Core
Affiliate Member that appointed such Board member. Any vacancy occurring by reason of such
removal or by reason of the death, resignation or inability to serve of any such member of the
Board, shall be filled by and only by the Core Affiliate Member that appointed such Board
member.
(b) The member of the Board holding such position as a result of being the chief
executive officer of the Company pursuant to Section 3.3(b)(b) shall be removed automatically
as a member of the Board, without any further action being required, if such person no longer
holds the position of chief executive officer of the Company. Such vacancy shall be filled by the
successor chief executive officer of the Company at the time such person is appointed to such
office.
(c) A member of the Board appointed pursuant to Section 3.3(b)(c) may be removed
at any time, with or without cause, by a vote of the remaining non-interested members of the
Board holding a Super Majority.
(d) Any Board member appointed under Section 3.3 shall serve until his or her
successor is duly elected and qualified, or his or her earlier death, resignation or removal as
provided herein.
(e) Upon any change in the members of the Board pursuant to Section 3.3 or this
Section 3.4, the Chief Executive Officer shall revise Schedule II hereto without any further
action of the Board or of any Member to reflect such change.
(D) Schedule II of the LLC Agreement is hereby amended and restated
in its entirety as set forth below:
Schedule II
Board Members
Member NW I
J. Timothy Warren
Member OV
Warren Allan
Member SC
Tamara Fischer
Chief Executive Officer and Chairman of the Board
Arlen D. Nordhagen
Other Board Members:
John Minar
Section 2. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the state of Delaware, without regard to conflict of law provisions
thereof
Section 3. Effect of Amendment. Except as set forth herein, the LLC Agreement
shall remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Amendment as of the day and year first above written.
Arlen Nordhagen
J. Timothy Warren
Warren Allan
Z_ :k l
Tamara Fischer
[Signature Page to First Amendment to Amended and Restated Limited Liability Company Agreement]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Amendment as of the day and year first above written.
%t" -
Arlen Nordhagen
othy Warren
Warren Allan
Tamara Fischer
[Signature Page to First Auuadmcat la Amended our/Restated Limited Liability Company Agreement]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Amendment as of the day and year first above written.
(2A- * 1
Arlen Nordhagen
J.Timothy Warren
Warren Allan
Tamara Fischer
fSignanme Page to First Amendment to Amended and Restated Limited Liability Company Agreement)