Exhibit 3.16
THIRD AMENDED AND RESTATED
LIMITED
LIABILITY
COMPANY OPERATING AGREEMENT
OF NET LEASE ACQUISITION LLC
This Third
Amended and Restated Limited Liability Company Operating Agreement
(together with the schedules attached hereto, this “
Agreement ”) of NET LEASE ACQUISITION LLC (the “
Company ”), is entered into by CAPMARK CAPITAL INC., a
Colorado Corporation, as the sole member. Capitalized terms used
and not otherwise defined herein have the meanings set forth on
Schedule A .
That certain
Limited Liability Company Operating Agreement of Net Lease
Acquisition LLC dated May 12, 2005, as amended by that certain
Amended and Restated Limited Liability Company Operating Agreement
of Net Lease Acquisition LLC dated July 13, 2005, as amended by
that certain Limited Liability Company Operating Agreement of Net
Lease Acquisition LLC dated March 16, 2006, is amended and restated
in its entirety by this Agreement to read as follows:
The Member, by
execution of this Agreement, hereby forms the Company as a limited
liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. Code § 18-101
et seq .), as amended from time to time (the “
Act ”), and the Member hereby agrees as
follows:
SECTION 1. Name . The name of the limited
liability company formed hereby is NET LEASE ACQUISITION LLC.
SECTION 2. Principal Business Office . The
principal business office of the Company shall be located at 1801
California Street, Suite 3700, Denver, Colorado, or such other
location as the Members may hereafter determined.
SECTION 3. Registered Office . The address of the
registered office of the Company in the State of Delaware is c/o
The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801.
SECTION 4. Registered Agent . The name and
address of the registered agent of the Company for service of
process on the Company in the State of Delaware is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, Delaware 19801.
SECTION 5. Member .
(a) The
mailing address of the Member is set forth on Schedule B
.
(b)
Subject to Section 9 (j) , the Member may act by written
consent.
SECTION 6. Certificates . David Cheung is hereby
designated as an “authorized person” within the meaning
of the Act (including Section 18-201(a) thereof), and has executed,
delivered and filed the Certificate of Formation of the Company
with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate of Formation with the Secretary of State
of the State of Delaware, his powers as an “authorized
person” ceased, and the Member thereupon became the
designated “authorized person” to continue as the
designated “authorized person” within the meaning of
the Act. The Member or an Officer shall execute, deliver and file
any other certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business in any
other jurisdiction in which the Company may wish to conduct
business.
The existence
of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the
Act.
SECTION 7. Purposes . The Company is organized to
(i) acquire, own, operate, hold, sell, transfer, lease, assign,
pledge, mortgage, finance, refinance, and otherwise deal with the
Property and (ii) engage in any activity that is incidental,
convenient or necessary to accomplish the foregoing and which may
be lawfully engaged in by a limited liability company formed
pursuant to the Act.
SECTION 8. Powers . Subject to Section 7
and Section 9(j), the Company, and the Board of Directors
and the Officers of the Company on behalf of the Company shall have
and exercise all powers and rights necessary, convenient or
incidental to accomplish its purposes as set forth in Section
7 conferred upon limited liability companies formed pursuant to
the Act.
SECTION 9. Management .
(a)
Board of Directors . Subject to clause (j) , the
business and affairs of the Company shall be managed by or under
the direction of a board of one or more Managing Directors elected,
appointed or designated by the Member. Subject to Section 10
, the Member may determine at any time in its sole and absolute
discretion the number of Managing Directors to constitute the
Board. The authorized number of Managing Directors may be increased
or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Managing Directors, and subject in
all cases to Section 10 . The number of Managing Directors
shall be two (2). Each Managing Director elected, designated or
appointed shall hold office until a successor is elected or until
such Managing Director’s earlier death, resignation,
expulsion or removal.
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(b)
Powers . Subject to clause (j) , the Board of
Directors shall have the power to do any and all acts necessary,
convenient or incidental to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise.
Subject to Section 7 , the Board of Directors has the
authority to bind the Company, which authority may be delegated
hereby to the fullest extent permitted by Delaware law.
(c)
Meeting of the Board of Directors . The Board of Directors
of the Company may hold meetings, both regular and special, within
or outside of the State of Delaware. Regular meetings of the Board
may be held without notice at such time and at such place as shall
from time to time be determined by the Board. Special meetings of
the Board may be called by the President of the Company on not less
than one day’s notice to each Managing Director by telephone,
facsimile, mail or any other means of communication. Special
meetings shall be called by the President or Secretary of the
Company in like manner and with like notice upon the written
request of any one or more of the Managing Directors.
(d)
Quorum: Acts of the Board . At all meetings of the Board, a
majority of the Managing Directors shall constitute a quorum for
the transaction of business and, except as otherwise provided in
this Agreement, the act of a majority of the Managing Directors
present at any meeting at which there is a quorum shall be the act
of the Board. If a quorum shall not be present at any meeting of
the Board, the Managing Directors present at such meeting may
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. Any
action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting if
all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing is filed with the minutes of
proceedings of the Board or committee, as the case may be.
(e)
Electronic Communications . Members of the Board, or any
committee designated by the Board, may participate in meetings of
the Board, or any committee, by means of telephone conference or
similar communications equipment that allows all persons
participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall
be deemed to be held at the principal place of business of the
Company.
(f)
Committees of Directors .
(i)
The Board may, by resolution passed by a majority of the whole
Board, designate one (1) or more committees, each committee to
consist of one or more of the Managing Directors of the Company.
The Board may designate one
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or more Managing
Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the
committee.
(ii) In
the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board to act
at the meeting in the place of any such absent or disqualified
member.
(iii) Any such
committee, to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Company.
Each committee shall have such name as may be determined from time
to time by resolution adopted by the Board. Each committee shall
keep regular minutes of its meetings and report the same to the
Board when required.
(g)
Compensation of Managing Directors; Expenses . The Board
shall have the authority to fix the compensation of Managing
Directors. The Managing Directors may be paid their expenses, if
any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary
as Managing Director. No such payment shall preclude any Managing
Director from serving the Company in any other capacity and
receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
(h)
Removal of Managing Directors . Unless otherwise restricted
by law, any Managing Director or the entire Board of Directors may
be removed or expelled, with or without cause, at any time by the
Member, and any vacancy caused by any such removal or expulsion may
be filled by action of the Member.
(i)
Managing Directors as Agents . To the extent of their powers
set forth in this Agreement and subject to clause (j) , the
Managing Directors are agents of the Company for the purpose of the
Company’s business, and the actions of the Managing Directors
taken in accordance with such powers set forth in this Agreement
shall bind the Company. Notwithstanding the last sentence of
Section 18-402 of the Act, except as provided in this Agreement and
unless otherwise authorized by the Board in writing, a single
Managing Director acting alone may not bind the Company.
(j)
Limitations on the Company’s Activities .
(i)
In the event of any inconsistency between the provisions contained
in this Section 9(j) and the other provisions of this Agreement,
the provisions of this Section 9(j) shall apply.
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(ii) The
Member shall not, so long as any Obligation is outstanding, amend,
alter, change or repeal the definition of “ Independent
Managing Director ” or Sections 5(c), 7, 8, 9, 10, 16,
20, 21, 22, 23, 24, 25 or 30 or Schedule A of this Agreement without
the unanimous written consent of the Board of Directors (including
the Independent Managing Director). Subject to this clause
(j) , the Member reserves the right to amend, alter, change or
repeal any provisions contained in this Agreement in accordance
with Section 30 .
(iii)
Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the
Member, any Managing Director, the Board of Directors, any Officer
or any other Person, so long as any Obligation is outstanding,
neither the Member nor the Board of Directors nor any Officer nor
any other Person shall be authorized or empowered, nor shall they
permit the Company, without the prior unanimous written consent of
the Member and the Board of Directors (including all Independent
Managing Directors), to take any Material Action; provided,
however, that so long as any Obligation is outstanding, that the
Board of Directors may not vote on or authorize the taking of any
Material Action unless there is at least one (1) Independent
Managing Director then serving in such capacity.
(iv) The Member
and the Board of Directors shall cause the Company to:
(a)
maintain its own separate books and records and bank accounts;
(b) at
all times hold itself out to the public and all other Persons as a
legal entity separate from the Member and any other Person;
(c)
have a Board of Directors separate from that of the Member and any
other Person;
(d) file
its own tax returns, if any, as may be required under applicable
law, to the extent (i) not part of a consolidated group filing a
consolidated return or returns, or (ii) not treated as a division
for tax purposes of another taxpayer, and pay any taxes so required
to be paid under applicable law;
(e)
except as contemplated by the Obligations, not commingle its assets
with assets of any other Person;
(f)
conduct its business in its own name and strictly comply with all
organizational formalities to maintain its separate existence;
(g)
maintain separate financial statements;
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(h) pay
its own liabilities only out of its own funds;
(i)
maintain an arm’s length relationship with its Affiliates and
the Member;
(j)
pay the salaries of its own employees, if any;
(k)
not hold out its credit or assets as being available to satisfy the
obligations of others;
(l)
allocate fairly and reasonably any overhead for shared office
space;
(m) use
separate stationery, invoices and checks;
(n)
except as contemplated by the Obligations, not pledge its assets
for the benefit of any other Person;
(o)
correct any known misunderstanding regarding its separate
identity;
(p)
maintain adequate capital in light of its contemplated business
purpose, transactions and liabilities;
(q)
cause its Board of Directors to keep minutes of any meetings and
actions and observe all other Delaware limited liability company
formalities;
(r)
not acquire any securities of the Member; and
(s)
cause the Directors, Officers, agents and other representatives of
the Company to act at all times with respect to the Company
consistently and in furtherance of the foregoing.
Failure of the
Company, or the Member or Board of Directors on behalf of the
Company, to comply with any of the foregoing covenants or any other
covenants contained in this Agreement shall not affect the status
of the Company as a separate legal entity or the limited liability
of the Member or the Board of Directors.
(v) So
long as any Obligation is outstanding, the Board of Directors shall
not cause or permit the Company to:
(a)
except as contemplated by the Obligations, guarantee any obligation
of any Person, including any Affiliate;
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(b)
engage, directly or indirectly, in any business other than the
actions required or permitted to be performed under Section
7 , the Obligations or this Section 9 (j) ;
(c)
incur, create or assume any indebtedness other than as expressly
permitted under the Obligations;
(d) make
or permit to remain outstanding any loan or advance to, or own or
acquire any stock or securities of, any Person, except that the
Company may invest in those investments permitted under the
Obligations and may make any advance required or expressly
permitted to be made pursuant to any provisions of the Obligations
and permit the same to remain outstanding in accordance with such
provisions;
(e)
to the fullest extent permitted by law, engage in any dissolution,
liquidation, consolidation, merger, asset sale or transfer of
ownership interests other than such activities as are expressly
permitted pursuant to any provision of the Obligations and subject
to obtaining any approvals required under this Agreement; or
(f)
except as contemplated or permitted by the Obligations, form,
acquire or hold any subsidiary (whether corporate, partnership,
limited liability company or other).
SECTION 10.
Independent Managing Director . So long as any Obligation is
outstanding, the Member shall cause the Company at all times to
have at least one (1) Independent Managing Director (who shall be
appointed by the Member). The Independent Managing Director shall
only have a right to approve or vote on a matter which is a
Material Action, it being understood that the Independent Managing
Director shall have no right to vote on or approve a matter which
is not a Material Action. To the fullest extent permitted by law,
including Section 18-1101(c) of the Act, the Independent Managing
Director shall consider only the interests of the Company,
including its creditors (including under the Obligations), in
acting or otherwise voting on any Material Actions relating to the
Company. No resignation or removal of an Independent Managing
Director, and no appointment of a successor Independent Managing
Director, shall be effective until such successor: (a) shall have
accepted his or her appointment as an Independent Managing Director
by a written instrument and (b) shall have executed a counterpart
to this Agreement as required by Section 5(c) . In the event
of a vacancy in the position of Independent Managing Director, the
Member shall, as soon as practicable, appoint a successor
Independent Managing Director. The undersigned by his execution and
delivery of this Agreement as Springing Member, also consents to
his appointment as Independent Managing Director. All right, power
and authority of the Independent Managing Director shall be limited
to the extent necessary to exercise those rights and perform those
duties specifically set forth in
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this Agreement. Except
as provided in the second sentence of this paragraph, in exercising
its rights and performing its duties under this Agreement, the
Independent Managing Director shall have a fiduciary duty of
loyalty and care similar to that of a manager of a business
corporation organized under the General Corporation Law of the
State of Delaware. No Independent Managing Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the
Company.
SECTION 11.
Officers .
(a)
Officers . The Officers of the Company shall be chosen by
the Board and shall consist of at least a President, a Secretary
and a Treasurer. The Board of Directors may also choose one or more
Vice Presidents, Assistant Secretaries and Assistant Treasurers.
The Board of Directors may also appoint one General Counsel and any
number of Associate Counsels. Any number of offices may be held by
the same person. The Board may appoint such other Officers and
agents as it shall deem necessary or advisable who shall hold their
offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
The salaries of all Officers and agents of the Company shall be
fixed by or in the manner prescribed by the Board. The Officers of
the Company shall hold office until their successors are chosen and
qualified. Any Officer elected or appointed by the Board may be
removed at any time, with or without cause, by the affirmative vote
of a majority of the Board. Any vacancy occurring in any office of
the Company shall be filled by the Board.
(b)
President . The President shall be the chief executive
officer of the Company, shall preside at all meetings of the Board,
shall be responsible for the general and active management of the
business of the Company and shall see that all orders and
resolutions of the Board are carried into effect. The President or
any other Officer authorized by the President or the Board shall
execute all leases, mortgages assignments and other contracts,
except: (i) where required or permitted by law or this Agreement to
be otherwise signed and executed, (ii) where signing and execut
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