EFTA00588776.pdf

NAR INVESTMENTS LLC AGREEMENT OF LIMITED LIABILITY COMPANY Dated: as of , 2014 Doca: USI:9639502v5 EFTA00588776 TABLE OF CONTENTS Page ARTICLE I ESTABLISHMENT OF THE COMPANY 1 1.1 Formation 1 1.2 Name 1 1.3 Purpose and Business of the Company 1 1.4 Powers 2 1.5 Term 2 1.6 Registered Office; Agent for Service of Process 2 1.7 Principal Office 2 ARTICLE II DEFINITIONS 2 2.1 Definitions 2 ARTICLE III CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS 6 3.1 Capital Accounts 6 3.2 Additional Contributions 7 3.3 Loans 7 ARTICLE IV ALLOCATION OF PROFIT AND LOSS 7 4.1 Allocation of Profits and Losses 7 4.2 Regulatory Allocations 9 ARTICLE V DISTRIBUTIONS 10 5.1 Distributions Other Than Upon Winding-Up 10 5.2 Distributions Upon Winding Up 10 ARTICLE VI TRANSFERS AND WITHDRAWALS 11 6.1 Right of First Refusal 11 6.2 Permitted Transfers 13 6.3 Certain Prohibited Transfers 14 6.4 Other Purported Transfers 14 6.5 Right to Withdraw 14 ARTICLE VII DISSOLUTION AND WINDING-UP 15 7.1 Events Occasioning Dissolution 15 7.2 Winding-Up 16 7.3 Liquidating Distributions 16 ARTICLE VIII MANAGEMENT 16 8.1 Management by the Managers 16 Does: USI:9639502v5 EFTA00588777 8.2 Number of Managers and Term of Office 19 8.3 Successor and Additional Managers 19 8.4 Resignation and Removal 19 8.5 Death, Dissolution, Incapacity or Bankruptcy of a Manager 20 8.6 Death, Incapacity or Bankruptcy of a Member 21 8.7 Other Interests 21 8.8 Reliance by Third Parties 22 8.9 Reimbursement of Expenses 22 8.10 Liability and Indemnity 22 8.11 Limited Liability 24 ARTICLE IX SUBSTITUTION; ADDITIONAL MEMBERS 24 9.1 Substituted Members 24 9.2 Additional Members 25 ARTICLE X ACCOUNTING 25 10.1 Accounting Method. 25 10.2 Books and Records 26 10.3 Reports 26 10.4 Federal Income Tax Elections 26 10.5 Tax Matters Partner 26 ARTICLE XI MISCELLANEOUS 26 11.1 Decisions by the Managers 26 11.2 Amendments 27 11.3 Notices 27 11.4 No Delivery of Certificates 27 11.5 Governing Law 27 11.6 Further Assurances 27 11.7 Headings, Gender and Number 28 11.8 Benefit 28 11.9 Counterparts 28 Does: USI:9639502v5 ii EFTA00588778 LIMITED LIABILITY COMPANY AGREEMENT OF NAR INVESTMENTS LLC LIMITED LIABILITY COMPANY AGREEMENT made as of this day of , 2014, by and among the persons or entities identified on Schedule A as Members of the NAR Investments LLC (hereinafter referred to collectively as the "Members" and each individually, a "Member"). ARTICLE I ESTABLISHMENT OF THE COMPANY 1.1 Formation. The Members are entering into this Agreement to form a limited liability company pursuant to the provisions of the Limited Liability Company Act as adopted in the State of Delaware (6 Del. C. § 18-101 et seq.), as amended from time to time (the "Act"). The parties hereto desire to set forth the terms and conditions for the operation of the Company. This Agreement sets forth fully the agreements and understandings of the Members in respect of the Company. 1.2 Name. The name of the Company is "NAR INVESTMENTS LLC." 1.3 Purpose and Business of the Company. The purpose of the Company is to pool certain of the funds of the Members so as to permit the Members to share in various investments. The Company is designed to ease the administrative burdens of managing assets, facilitate diversification, broaden access to investment opportunities and reduce transaction costs for the Members. The Company further may simplify the transfer of assets otherwise not readily divisible into small units, such as real property, partnership interests, interests in hedge funds, private equity funds and Does: USI:9639502v5 EFTA00588779 unincorporated business interests. The Company further may engage in any act or activity for which limited liability companies may be organized under the Act, in accordance with this Agreement. The Company is not being formed solely for the purpose of acquiring securities in connection with any particular investment. 1.4 Powers. The Company shall have the power to do all things necessary or desirable in the conduct of its business to the fullest possible extent. 1.5 Term. The term of the Company shall commence upon its formation pursuant to the Act and shall have a perpetual existence unless terminated in accordance with the provisions of this Agreement. 1.6 Registered Office; Agent for Service of Process. The address of the Company's registered office in the State of Delaware is c/o Corporation Services Company, 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware is Corporation Services Company, 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808. The Managers may, from time to time, change the registered office or the registered agent of the Company. 1.7 Principal Office. The principal office of the Company shall be c/o Elysium Management LLC, 445 Park Avenue, Suite 1401, New York, New York 10022, or such other locations as the Managers may determine. ARTICLE H DEFINITIONS 2.1 Definitions. The following defined terms used in this Agreement shall have the respective meanings specified below. Doca: USI:9639502v5 2 EFTA00588780 "Accounting Period" shall mean the period of the Company beginning on the date hereof, the first day of a Fiscal Year or any other day reasonably selected by the Manager (an "adjustment date") and ending on the earlier of the next succeeding adjustment date or the last day of a Fiscal Year. "Code" shall mean the Internal Revenue Code of 1986, as amended, or the corresponding provisions of any successor statute. "Eligible Person" shall mean: (i) any person who is then a Member of the Company; (ii) Leon D. Black ("LDB"); (iii) a descendant of LDB ("LDB Descendant"); (iv) the spouse (including a same sex spouse) of any Member, LDB or LDB Descendant; (v) a descendant of any Member; (vi) the estate of any Member; (vii) trusts for the primary benefit of any one or more Members, LDB or LDB Descendants, Qualified Charitable Organizations, the spouse (including a same sex spouse) of any Member, LDB or LDB Descendant and/or any one or more of the descendants of any Member; (viii) a beneficiary of any trust which is a Member; (ix) any custodian for the benefit of any of the foregoing individuals under any state's Uniform Transfers to Minors Act or comparable law in any other jurisdiction; and (x) any entity all the beneficial owners of which are persons or entities previously described in this paragraph. "Fiscal Year" shall mean each fiscal year of the Company (or portion thereof), which shall end on December 31; provided, however, that upon termination of the Company "Fiscal Year" shall mean the period from the January 1 immediately preceding such termination to the date of such termination. Does: USI:9639502v5 3 EFTA00588781 "Manager or "Managers" shall mean LEON D. BLACK, so long as he is serving as a Manager, and such other successor or additional Managers designated as provided in this Agreement. "Membership Interest" means the ownership interest of a Member in the Company at the relevant time, and the right of such Member to any and all benefits to which a Member may be entitled under this Agreement and the Act, together with all obligations of such Member to comply with the terms and provisions of this Agreement. "Member" means each person set forth on Schedule A holding an interest in the Company and such other persons admitted as Members of the Company in accordance with Article IX. "Net Profit" and "Net Loss" mean the Company's net profits or net losses, as the case may be, determined on the accrual basis of accounting in accordance with generally accepted accounting principles consistently applied and in accordance with the following: (i) Net Profits and Net Losses shall include realized and unrealized profits and losses with respect to all property or positions held by the Company. Realized or unrealized profit and loss with respect to any property or position held during any Fiscal Year includes the realized or unrealized appreciation or depreciation with respect to such property or position determined by comparing the net proceeds from the sale of such property or the closing of such position, as the case may be, or the market value of such property or position at the end of such Fiscal Year with either the cost of such property or position, if established during such Fiscal Year, or the market value of such property or position at the end of the preceding Fiscal Year, if such property was sold or such position established during a prior Fiscal Year, and (ii) there shall be deducted in Does: USI:9639502v5 4 EFTA00588782 computing Net Profits and Net Losses expenses if any, in respect of the particular Fiscal Year (whether performed therein or to be performed thereafter), and such reserves for contingent liabilities of the Company, including estimated expenses, if any, in connection therewith, as the Managers shall determine. "Percentage Interest" means, with respect to each Member, the ratio of the Capital Account balance of such Member (and in the case of an assignee, such Member's assignor), and the aggregate Capital Account balances of all the Members (and their assignors) as of the date in question. The Percentage Interests of the Members, as of the date of the Agreement, are set forth on Schedule A. "Person" means any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, or other legal entity or organization. "Qualified Charitable Organization" shall mean a corporation, organization or other entity, transfers to which are deductible for Federal income, gift and estate tax purposes under Section 170(c), Section 2522(a) and Section 2055(a) of the Code. "Schedule A" means Schedule A annexed to this Agreement as amended and in effect from time to time. The Managers shall amend Schedule A from time to time to reflect any change in ownership of Membership Interests. Any amendment or revision to Schedule A in accordance with this Agreement shall not be deemed an amendment to this Agreement. "Treasury Regulations" shall mean the Income Tax Regulations promulgated under the Code, as amended from time to time. Doca: USI:9639502v5 5 EFTA00588783 ARTICLE III CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS 3.1 Capital Accounts. 3.1.1 A separate capital account (a "Capital Account") shall be maintained for each Member. Each Member's Capital Account shall be credited with (i) the amount of such Member's aggregate capital contributions made in cash and the fair market value of all property contributed by such Member (net of liabilities that are secured by such contributed property), (ii) such Member's allocated share of Net Profit and other items of income and gain of the Company, and (iii) the amount of any Company liabilities assumed by such Member. Each Member's Capital Account shall be reduced by (i) the amount of any cash distributions to such Member and the fair market value of all property distributed in kind to such Member (net of liabilities that are secured by such distributed property), (ii) such Member's allocated share of Net Loss and other items of deduction and loss of the Company, and (iii) the amount of any liabilities of such Member assumed by the Company. 3.1.2 The foregoing provisions and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations § 1.704-1(b)(2)(iv), and shall be interpreted consistently therewith. The Managers shall be authorized to make appropriate amendments to the allocation of items to the Capital Accounts if necessary to comply with such Treasury Regulation. 3.1.3 In the event of a transfer of any interest in the Company, the transferee shall succeed, as of the date of such transfer, to that portion of the transferor's Capital Account that relates to such transferred Membership Interest. Doc": USI:9639502v5 6 EFTA00588784 3.2 Additional Contributions. No Member shall be required to make additional contributions. 3.3 Loans. Any Member may, but shall not be required to, make loans to the Company and, in respect of such loans, shall be treated as a creditor of the Company. Such loans shall be repaid as and when the Company has funds available therefor, and such loans and interest thereon (at rates to be agreed upon by the lending Member and the Company) shall constitute obligations of the Company. Any such loan shall not increase such Member's Capital Account, entitle such Member to any increase in such Member's share of the profits of the Company or subject such Member to any greater proportion of losses which the Company may sustain. ARTICLE IV ALLOCATION OF PROFIT AND LOSS 4.1 Allocation of Profits and Losses. 4.1.1 The Company's Net Profit and Net Loss for any Accounting Period shall be allocated among the Members in proportion to their Percentage Interests. 4.1.2 The Company's items of income, gain, loss and deduction shall be allocated for Federal, state and local income tax purposes among the Members proportionately to the allocation of Net Profit and Net Loss among the Members. Notwithstanding the foregoing, solely for Federal, state and local income tax purposes, in accordance with Sections 704(b) and 704(c) of the Code and the Treasury Regulations promulgated thereunder, income, gain, loss and deduction with respect to property contributed to the Company by a Member shall be allocated among the Members in Doca: USI:9639502v5 7 EFTA00588785 accordance with Section 704(c) of the Code and the Treasury Regulations promulgated thereunder so as to take account of any difference between the tax basis of such property to the Company for Federal income tax purposes and its book basis. 4.1.3 If any Membership Interest is transferred or any Percentage Interest is changed pursuant to the terms of the Agreement during a Fiscal Year, the amount of Net Profit and Net Loss to be allocated to the Members for such entire Fiscal Year in accordance with their respective Percentage Interests shall be allocated to the portion of such Fiscal Year which precedes the date of such transfer or change (and if there shall have been a prior transfer or change in such Fiscal Year, which commences on the date of such prior transfer or change) and to the portion of such Fiscal Year which occurs on and after the date of such transfer or change (and if there shall be a subsequent transfer or change in such Fiscal Year, which precedes the date of such subsequent transfer or change), in proportion to the number of days in each such portion (or, in the case of a transfer, in accordance with an interim closing of the books at the election and the expense of the parties to the transfer), and the amounts of the items so allocated to each such portion shall be credited or charged to the Members in proportion to their respective Percentage Interests during each such portion of the Fiscal Year in question. Such allocation shall be made without regard to the date, amount or receipt of any distributions that may have been made with respect to the transferred Percentage Interest. As of the date of such transfer, the transferee Member shall succeed to the Capital Account of the transferor Member with respect to the transferred Membership Interest. Does: USI:9639502v5 8 EFTA00588786 4.2 Regulatory Allocations. 4.2.1 Section 704 of the Code and the Treasury Regulations issued thereunder, including but not limited to the provisions of such Treasury Regulations addressing qualified income offset provisions, minimum gain chargeback requirements and allocations of deductions attributable to nonrecourse debt and partner nonrecourse debt, are hereby incorporated by reference. If, as a result of the provisions of Section 704 of the Code and such Treasury Regulations, items of Net Profit or Net Loss are allocated to the Members in a manner that is inconsistent with the manner in which the Members intend to divide Company distributions as reflected in Section 4.1, to the extent permitted under such Treasury Regulations, items of future profit and loss shall be allocated among the Members so as to prevent such allocations from distorting the manner in which Company distributions will be divided among the Members pursuant to this Agreement. 4.2.2 Notwithstanding any other provision of this Article IV, no Member shall be allocated in any Fiscal Year of the Company any Net Loss to the extent such allocation would cause or increase a deficit balance in such Member's Capital Account, determined after taking into account all other allocations to be made for such year pursuant to this Article IV and after adjusting such Capital Account for the reasonably expected adjustments, allocations and distributions described in Treasury Regulations §1.704-1(b)(2)(ii)(d). In the event that one but not all of the Members would have a deficit balance in his Capital Account, the limitation set forth in this Section 4.2.2 shall be applied so as to allocate the maximum permissible Net Loss to such Member under Treasury Regulations §1.704-1(b)(2)(iiXd). Any such Net Loss in excess of the Does: USI:9639502v5 9 EFTA00588787 limitation set forth in this Section 4.2.2 that would be allocated to a Member shall be allocated to the other Member or Members. In the event any Member has a deficit balance in his Capital Account at the end of any Fiscal Year, such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 4.2.2 shall be made only if and to the extent that a Member would have a deficit balance in his Capital Account in excess of such sum after all other allocations provided for in this Article IV have been tentatively made as if this Section 4.2.2 were not in this Agreement. This Section 4.2.2 is intended to comply with the qualified income offset requirement of Treasury Regulations §1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. ARTICLE V DISTRIBUTIONS 5.1 Distributions Other Than Upon Winding-Up. Distributions shall be made to the Members at the times and in the aggregate amounts determined in the sole discretion of the Managers. Such distributions shall be allocated among the Members in proportion to their Percentage Interests. The Managers shall have authority to make any such distributions on behalf of any Member (i) directly to the United States Treasury and any state or local taxing authority of such amounts as may be necessary to discharge such Member's income tax liability (including but not limited to Federal, State, local or otherwise) and (ii) if such Member is under the age of majority, to a custodian on behalf of such Member. 5.2 Distributions Upon Winding Up. Upon the dissolution and winding-up of the Company, distributions shall be made as provided in Section 7.3. Doca: USI:9639502v5 10 EFTA00588788 ARTICLE VI TRANSFERS AND WITHDRAWALS 6.1 Right of First Refusal. Except as permitted by Section 6.2, but in all events subject to Section 9.1 hereof, no Member or any assignee thereof shall have the right to sell, assign, or otherwise transfer all or any part of such Member's Membership Interest (the "Offered Interests") unless such Member or assignee (the "Seller") first offers to sell the Offered Interests pursuant to the terms of this Section 6.1. 6.1.1 No transfer may be made under this Section 6.1 unless the Seller has received a bona fide written offer (the "Purchase Offer") from the prospective transferee (the "Purchaser") to purchase the Offered Interests for a purchase price (the "Offer Price") denominated and payable in United States dollars at closing or according to specified terms, with or without interest, which offer shall be in writing signed by the Purchaser and shall be irrevocable for a period ending no sooner than the day following the end of the Offer Period, as hereinafter defined. 6.1.2 Prior to making any transfer that is subject to the terms of this Section 6.1, the Seller shall give to each Member, written notice (the "Offer Notice") which shall include the following: (1) the identity of the Purchaser; (2) a copy of the Purchase Offer; (3) a statement signed by the Purchaser to the effect that, upon purchase of the Offered Interests, the Purchaser agrees to become a Member, to be bound by all of the terms and conditions of this Agreement as a Member with respect to the Offered Interests, and to execute such documents and instruments as the other Members deem necessary or appropriate to confirm such agreements; and (4) an offer (the "Firm Offer") to sell the Offered Interests to the other Members (the "Offerees") for the Offer Price, payable according to the same terms as (or more favorable terms than) those contained in Does: USI:9639502v5 11 EFTA00588789 the Purchase Offer, provided that the Firm Offer shall be made without regard to the requirement of any earnest money or similar deposit required of the Purchaser prior to closing, and without regard to any security (other than the Offered Interests) to be provided by the Purchaser for any deferred portion of the Offer Price. 6.1.3 The Firm Offer shall be irrevocable for a period (the "Offer Period") ending at 5:00 •., local time, at the Company's principal place of business, on the ninetieth (90th) day following the day of the Offer Notice. 6.1.4 At any time during the Offer Period, any Offeree may accept the Firm Offer as to all or any portion of the Offered Interests by giving written notice of such acceptance to the Seller and each other Offeree (an "Acceptance") which notice shall indicate the maximum portion of the Offered Interests that such Offeree is willing to purchase. In the event that Offerees ("Accepting Offerees"), in the aggregate, accept the Firm Offer with respect to all, or more than all, of the Offered Interests during the Offer Period, the Firm Offer shall be deemed to be accepted. In the event that Accepting Offerees accept the Firm Offer with respect to more than all of the Offered Interests, each Accepting Offeree shall be deemed to have accepted the Firm Offer with respect to that portion of the Offered Interests that corresponds to the ratio of the Offered Interests that such Accepting Offeree indicated a willingness to purchase to the aggregate Offered Interests all Accepting Offerees indicated a willingness to purchase. If Offerees do not accept the Firm Offer as to all, or more than all, of the Offered Interests during the Offer Period, the Firm Offer shall be deemed to be rejected in its entirety. 6.1.5 In the event the Firm Offer is accepted, the closing of the sale of the Offered Interests shall take place within thirty (30) days after the Firm Offer is Does: USI:9639502v5 12 EFTA00588790 accepted or, if later, the date of closing set forth in the Purchase Offer. The Seller and all Accepting Offerees shall execute such documents and instruments as may be necessary or appropriate to effect the sale of the Offered Interests pursuant to the terms of the Firm Offer and this Section 6.1 and such sale shall be subject to the provisions of Section 9.1. 6.1.6 If the Firm Offer is not accepted in the manner hereinabove provided, the Seller may sell the Offered Interests to the Purchaser at any time within sixty (60) days after the last day of the Offer Period, provided that such sale shall be made on terms no more favorable to the Purchaser than the terms contained in the Purchase Offer and provided further that such sale complies with the other terms, conditions, and restrictions of this Agreement that are applicable to sales of Membership Interests and are not expressly made inapplicable to sales occurring under this Section 6.1. In the event that the Offered Interest is not sold in accordance with the terms of the preceding sentence, the Offered Interest shall again become subject to all of the conditions and restrictions of this Section 6.1. 6.2 Permitted Transfers. Notwithstanding Section 6.1, but in all events subject to Section 9.1 hereof, a Member may sell, assign, pledge or otherwise transfer all or any part of such Member's Membership Interest without an offer first having been made pursuant to Section 6.1, if, and only if, such transferee or pledgee is an Eligible Person. In addition, notwithstanding Section 6.1, any interest as a Member which is held by a custodian for a minor under a Uniform Gifts to Minors Act, Uniform Transfers to Minors Act or a similar act shall be fully transferable and assignable to the minor when the minor reaches the age of termination of such custodianship under the applicable statute. Does: USI:9639502v5 13 EFTA00588791 6.3 Certain Prohibited Transfers. Notwithstanding Sections 6.1 and 6.2 hereof, no Member shall have the right to sell, assign, or otherwise transfer any portion or all of such Member's Membership Interest if such sale, assignment or other transfer would cause (i) the Company to be classified as a publicly traded partnership or otherwise as a corporation for United States federal income tax purposes or (ii) unless the Company determines it to be immaterial, a termination of the Company pursuant to Section 708 of the Code. 6.4 Other Purported Transfers. No Member shall have the right to sell, assign, mortgage, pledge, or otherwise voluntarily transfer or encumber any portion or all of such Member's Membership Interest, except as provided in Sections 6.1 and 6.2 hereof. A transferee who acquires a Membership Interest by any purported sale, assignment, mortgage, pledge, hypothecation or other voluntary transfer or encumbrance by a Member of any or all of such Member's Membership Interest in violation of this Article, shall be entitled only to share in such profits and losses, to receive such distribution or distributions, and to receive such allocation of income, gain, loss, deduction, or credit or similar item to which the assignor was entitled, to the extent assigned. Such transferee shall have no right to an accounting of the affairs of the Company and shall not have any rights of a Member under the Act or this Agreement, except as to allocations and distributions with respect to such transferred interests. 6.5 Right to Withdraw. 6.5.1 Any Member may withdraw all or a portion of his, her or its Capital Account at any time, in accordance with the provisions of Section 6.5.2. Does: USI:9639502s5 14 EFTA00588792 6.5.2 Distribution Upon Withdrawal. If notice of withdrawal is given by a Member pursuant to Section 6.5.1 (the "Withdrawing Member"), the Managers shall distribute to such Withdrawing Member assets of the Company with an aggregate fair market value equal to the Withdrawing Member's proportionate share of Company assets. Notwithstanding the foregoing, the Managers shall withhold from the distribution to the Withdrawing Member an amount the Managers, subject to Section 8.1.1, determine will be sufficient to provide for (i) the expenses that will be incurred by the Company in connection with the withdrawal of the Withdrawing Member, including, without limitation, all fees and expenses incurred in connection with the distribution of such Withdrawing Member's proportionate share of the Company assets or the liquidation of all or such share of the Company assets into cash proceeds, and (ii) the Withdrawing Member's share of the matured liabilities of the Company and, where appropriate, a reserve for contingent and unmatured liabilities of the Company, including capital contributions committed to be made with respect to investments made by the Company. ARTICLE VII DISSOLUTION AND WINDING-UP 7.1 Events Occasioning Dissolution. The Company shall dissolve and terminate upon the first to occur of any of the following events: 7.1.1 The unanimous written consent of the Members to dissolve the Company. 7.1.2 The entry of a decree of judicial dissolution under Section 18-802 of the Act; and Does: USI:9639502v5 15 EFTA00588793 7.1.3 Except as provided in Section 18-801(a)(4) of the Act, at any time there are no Members. 7.2 Winding-Up. The Company shall be allowed one year from the date of any event occasioning dissolution for the winding-up of its affairs and shall be allowed such additional time as may be reasonable for the orderly sale of the Company properties. 7.3 Liquidating Distributions. Upon the dissolution and winding-up of the Company, the assets of the Company shall be distributed in the following order of priority: 7.3.1 To the payment of the expenses of winding-up, including the establishment of any reserves against liabilities or obligations of the Company that the Managers deem appropriate, such reserves to be charged against the Members' Capital Accounts according to the Percentage Interests of the Members, which reserve, prior to payment of such liabilities and obligations, shall be placed in the hands of an escrow agent for such period and upon such terms as the Managers shall determine; and, then, 7.3.2 To the payment of other debts and liabilities of the Company; and, then, 7.3.3 To the Members in proportion to their Percentage Interests. ARTICLE VIII MANAGEMENT 8.1 Management by the Managers. Does: USI:9639502v5 16 EFTA00588794 8.1.1 The business affairs of the Company shall be managed by the Managers in accordance with the provisions of Section 11.1 below. Notwithstanding the foregoing, the Managers may appoint officers of the Company or other authorized persons who shall be authorized to perform such actions for and on behalf of the Company as the Managers shall determine. The President, Vice President, Secretary and Treasurer of the Company shall be the individuals as set forth in Schedule B to this Agreement or as may be appointed by the Managers from time to time, which individuals shall serve until the earlier of their retirement, removal, death or disability. The Managers and/or, to the extent determined by the Managers, any officers appointed or authorized persons designated by the Managers, shall have all necessary powers to carry out the purposes of the Company. The Managers may remove any officer or authorized person at any time, without cause. In exercising the powers granted by this Agreement and in performing the duties required by this Agreement with respect to the management and operation of the Company, each Manager, pursuant to general principles of law, has a fiduciary duty to act in the best interests of the Company and the Members. 8.1.2 In addition to the powers granted by law, the Managers shall have full power to do everything in administering the Company that the Managers may deem advisable, including the power: To retain so long as the Managers may deem advisable and to acquire by purchase or otherwise, any kind of real property or personal property, including (without limitation) common and preferred stocks, interests in investment companies and discretionary common trust funds, hedge funds, private equity funds, partnerships (whether or not as a general partner) and limited liability companies (whether or not as a manager), works of art, undivided interests and secured and Doc a: USI:9639502v5 17 EFTA00588795 unsecured obligations -- all without diversification as to kind or amount and without being limited to investments authorized by law; to sell for cash or on credit (at public or private sale), exchange, mortgage, lease for any period (either as landlord or tenant and including renewals of the term) and modify, extend or cancel leases, grant options or otherwise dispose of or deal with any real or personal property, all without regard to statutory restrictions, in such manner and upon such terms and conditions as they deem advisable without first obtaining a court order; to erect, renovate or alter buildings or otherwise improve and manage buildings and property; demolish buildings; make ordinary and extraordinary repairs; grant easements and make party wall contracts; dedicate roads; subdivide; adjust boundary lines and partition; to distribute in kind or in money or partly in each, even if shares be composed differently; to hold property in the names of nominees or so that it will pass on delivery, and to leave property in the custody of a firm of stockbrokers and registered in the name of the stockbrokers' nominees; to renew, assign, alter, extend, compromise, abandon or release or arbitrate claims asserted by or against the Company; to engage and rely on brokers and investment counsel, accountants, appraisers and other experts (including art experts) and legal counsel and to compensate them; to employ custodians of the assets and bookkeepers and clerks and other assistants; to borrow money and mortgage and pledge any Company property for any purpose, provided that no Person who makes any nonrecourse loan to the Company shall have or acquire, as a result of making such loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a creditor; and to lend funds to any Person, (including a Member or Manager of the Company, provided that such dealings shall be on terms no less favorable to the Company than terms that would be Does: USI:9639502s5 18 EFTA00588796 obtained on an arms-length basis), with or without security and upon such terms and conditions as the Managers deem advisable. 8.2 Number of Managers and Term of Office. There shall always be at least one (1) Manager. Each Manager shall hold office until (i) its resignation or removal, if an entity, or (ii) her or his earlier death, incapacity, resignation or removal, if an individual. 8.3 Successor and Additional Managers. A majority in interest of the Members may designate another entity or person to serve as an additional Manager or as a successor Manager. As a condition precedent to a designated person or entity becoming an additional or successor Manager, such entity or person must qualify for the position of Manager, as provided in this Section. A successor or additional Manager shall qualify as a Manager under this Section if such entity or person provides the Members with a statement that it, he or she agrees to become a Manager and to be bound by all of the terms and conditions of this Agreement as a Manager. Notwithstanding the foregoing provisions of this Section 8.3, if any Member who is an individual makes a gratuitous transfer of all or a portion of his or her Membership Interest, such transferor Member may not in his or her individual capacity serve as a Manager and if then serving, shall immediately cease to serve as a Manager, and may participate in the election of an additional or successor Manager as set forth in this Section 8.3, only if such additional or successor Manager is a person who is not related or subordinate to the transferor Member within the meaning of Section 672(c) of the Code. 8.4 Resignation and Removal. Does: USI:9639502v5 19 EFTA00588797 8.4.1 A Manager may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by any other Manager, or if no other Manager is then serving, by the Members. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. 8.4.2 The Members holding at least a two-thirds (2/3) Membership Interest may, by vote or unanimous written consent, remove any acting Manager at any time, without cause. 8.5 Death, Dissolution, Incapacity or Bankruptcy of a Manager. 8.5.1 Upon the dissolution, death, incapacity, termination, withdrawal, expulsion, or adjudication of bankruptcy or insolvency of a Manager or upon the entry of an order for relief, naming a Manager as the debtor in proceedings under any Chapter of the Bankruptcy Code, such Manager shall cease to be a Manager of the Company. In that case, the remaining or successor Managers (if any), shall continue as the Managers. If there is no remaining or successor Manager, then one or more persons shall be appointed as the Managers, in accordance with Section 8.3. 8.5.2 A Manager shall be deemed incapacitated when either (i) a court of competent jurisdiction has issued a final order that the Manager is an adjudged incompetent or appoints a guardian, conservator, committee or other similar fiduciary, or (ii) a licensed physician or psychiatrist appointed either by a majority of the other Managers or by a majority in interest of the Members (excluding any Membership Interests held by the Manager whose capacity is at issue) certify in writing that, in his or Doca: USI:9639502v5 20 EFTA00588798 her opinion, such Manager lacks sufficient understanding or capacity to make and communicate decisions about the management and operation of the Company. 8.6 Death, Incapacity or Bankruptcy of a Member. 8.6.1 The death, incapacity, liquidation, dissolution, or entry of an order for relief in a bankruptcy case of a Member (a "former Member") shall not dissolve the Company. In any such event, the successors, assigns, executors, administrators or personal representatives of such former Member shall have all the rights of a Member in respect of distributions, allocations and capital, but shall not become a Member unless a majority in interest (excluding Membership Interests held by the former Member) of the remaining Members consent and the provisions of Section 9.1 have been satisfied. The estate of a deceased former Member shall be deemed to be the assignee of such former Member's Membership Interest and such estate shall be bound in all respects by the deceased former Member's obligations to the Company. 8.6.2 A Member shall be deemed incapacitated when either (i) a court of competent jurisdiction has issued a final order that the Member is an adjudged incompetent or appoints a guardian, conservator, committee or other similar fiduciary, or (ii) a licensed physician or psychiatrist appointed either by a majority of the Managers or by a majority in interest of the Members (excluding the Membership Interests held by the Member whose capacity is at issue) certify in writing that, in their opinion, such Member lacks sufficient understanding or capacity to make and communicate decisions concerning such Member's Membership Interests in the Company. 8.7 Other Interests. The Managers and Members may engage in or possess interests in other business ventures of every nature and description, whether or Does: USI:9639502v5 21 EFTA00588799 not competitive with the business of the Company, independently or with others, and neither a Manager nor any Member shall, by virtue of this Agreement, have any rights in or to such other ventures or the income or profits derived therefrom. 8.8 Reliance by Third Parties. Any person not a party to this Agreement dealing with the Company shall be entitled to rely conclusively upon the power and authority of the Managers to bind the Company in all respects, to execute agreements, instruments and other writings on behalf, and in the name, of the Company and to take any and all other action on behalf, and in the name, of the Company. 8.9 Reimbursement of Expenses. The Company will pay all fees and expenses incident to its activities including (but not limited to) compensation to any investment advisor. The Company will pay for research fees, interest on margin accounts, legal and accounting fees, borrowing charges on securities sold short, custodial fees, brokerage commissions, bank services fees, interest on loans and debit balances and any other reasonable expenses related to the purchase, sale or holding of company assets as the Managers shall determine in the Managers' sole discretion. The Managers shall be entitled to reimbursement from the Company funds for any reasonable out of pocket costs or expenses incurred by the Managers in the conduct of Company business, including without limitation general overhead expenses, office expenses, secretarial services, computer support, other office support, investment research, attorney's fees, accounting fees and expenses incurred in connection with the administration and establishment of the Company. 8.10 Liability and Indemnity. Does: USI:9639502v5 22 EFTA00588800 8.10.1 Each Manager, Officer and authorized person may act or refrain from acting (consistent with the duties described in Section 8.1 or in the instrument granting authority) without liability to the Company or to any Member for any reasonable error in judgment, mistake of law or fact, or any act or failure to act, so long as such action or inaction was taken in good faith with the reasonable belief that such action or inaction was in the best interests of the Company and the Members. Consistent with the preceding sentence, each Manager, Officer and authorized person may act or refrain from acting without liability to the Company or to any Member in reliance upon any opinion of any consultant or advisor on any matter which the Manager, Officer or authorized person reasonably believes to be within the consultant or advisor's professional competence. 8.10.2 The Company shall, to the extent of its assets, indemnify and hold harmless each person who is or was a Manager, Officer or authorized person from any and all liability, loss, damage, cost and expense (including, without limitation, reasonable attorneys' fees and expenses) arising from any act or failure to act by such Manager, Officer or authorized person in the performance of any of the powers, authorities or duties of the Manager, Officer or authorized person under this Agreement or applicable law, if it is determined that such Manager, Officer or authorized person acted in good faith and with reasonable belief that such action or inaction was in the best interests of the Company and the Members. 8.10.3 The right to indemnification conferred by hereunder shall include the right to be paid or reimbursed by the Company for the reasonable expenses incurred in advance of the final disposition of any proceeding and without any Does: USI:9639502v5 23 EFTA00588801 determination as to the person's ultimate entitlement to indemnification; provided, however, that the payment of such expenses incurred in advance of the final disposition of a proceeding shall be made only upon delivery to the Company of a written affirmation by such person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under this section and a written undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to be indemnified. 8.11 Limited Liability. Notwithstanding any provision of this Agreement, no Member shall be liable for any of the losses, debts or liabilities of the Company in excess of his, her or its respective capital contributions, except as otherwise expressly provided by law. ARTICLE IX SUBSTITUTION; ADDITIONAL MEMBERS 9.1 Substituted Members. The transferee of a Membership Interest may not be admitted as a substituted Member unless all of the following conditions have been met: 9.1.1 The transfer conforms with Section 6.1, Section 6.2 or Section 8.6.1 hereof; 9.1.2 In the case of a transfer in accordance with Section 6.1 or Section 6.2, the Managers have received a written instrument executed by the transferor, which instrument transfers to the transferee all or part of the transferor's Membership Interest; Does: USI:9639502v5 24 EFTA00588802 9.1.3 The transferee has approved and adopted all of the provisions of this Agreement, as the same may have been amended, by written instrument delivered to the Managers; and 9.1.4 The transferee has paid or agreed to pay all reasonable expenses relating to such admission. 9.2 Additional Members. Additional Membership Interests may be issued and sold by the Company to any person, including but not limited to a natural person, trust, corporation, limited liability company, partnership or other association, for fair market value, as determined by the Managers using reasonable business judgment, and under such terms as deemed advisable by the Managers, including but not limited to terms relating to the applicability of this Agreement to such additional Membership Interests. Admission of any Member shall not be a cause of dissolution. ARTICLE X ACCOUNTING 10.1 Accounting Method. 10.1.1 The Company's assets and liabilities will be determined on the basis of generally accepted accounting principles, consistently applied. 10.1.2 A security listed on a national securities exchange will be valued at its last sale price on the most recent date on or before the end of a Fiscal Year or, if no sale occurred on said date, at the mean between the closing "bid" and "asked" prices. 10.1.3 All other positions and all other assets and liabilities will be assigned a value determined in good faith by the Managers. With respect to other investment vehicles in which the Company may invest, the Manager may rely on the Doca: USI:9639502v5 25 EFTA00588803 values reported by such entities in computing the value of the Company's assets but will carry the investment at the cost basis unless otherwise prudent. 10.2 Books and Records. The Managers shall maintain the general accounts of the Company. The books of the Company shall be kept on a basis consistent with the provisions of this Agreement and shall be open to the inspection and examination of all Members, in person or by their duly authorized representatives, at reasonable times. The books of the Company shall be maintained based on generally accepted accounting principles, consistently applied. 10.3 Reports. At the request of any Member, the Company shall furnish the Members with a copy of the Company's financial statements for the current or any prior Fiscal Year and with a statement of such Member's Capital Account, as reflected on the books of the Company. Each Member also shall be supplied with all information with respect to the Company required in connection with the preparation of such Member's tax returns. 10.4 Federal Income Tax Elections. All elections required or permitted to be made by the Company under the Code shall be made by the Managers in such manner as will, in the Managers' opinion, be most advantageous to a majority-in-interest of the Members. 10.5 Tax Matters Partner. The Members shall from time to time designate a "tax matters partner" pursuant to Section 6231(a)(7) of the Code. ARTICLE XI MISCELLANEOUS 11.1 Decisions by the Managers. Except as otherwise required by law or in this Agreement, if there is more than one Manager serving at any time and an action Does: USI:9639502v5 26 EFTA00588804 is to be taken by the Managers (or the Company), such action shall be taken by the Managers, unanimously, or, if there are more than two Managers, with the agreement of a majority of such Managers. 11.2 Amendments. This Agreement may be amended from time to time upon the unanimous written consent of the Members. Notwithstanding the foregoing, the administrative provisions in this Agreement may be amended solely by the Managers. 11.3 Notices. All notices to the Managers, the Company or any Member under this Agreement shall be in writing, duly signed by the party giving such notice, and transmitted postage prepaid by first class certified mail, return receipt requested, to such Member's address or to any such other address as may hereafter be designated by a Member upon giving notice thereof to the Company. All notices shall be deemed given when dispatched. 11.4 No Delivery of Certificates. The Company is not required to deliver copies of any Certificate of Formation or amendment or cancellation to the Members. 11.5 Governing Law. This Agreement shall be construed in accordance with and governed by the Act and by the laws of the State of Delaware applicable in the case of agreements made and to be performed entirely within such State. 11.6 Further Assurances. Each party to this Agreement 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 required by law, or as may, in the reasonable opinion of the Managers, be necessary or advisable to carry out the interests and purposes of this Agreement. Does: USI:9639502v5 27 EFTA00588805 11.7 Headings. Gender and Number. The headings in this Agreement are for convenience only and in no way define, limit or otherwise affect the scope or intent hereof. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. 11.8 Benefit. This Agreement shall be binding upon and shall inure to the benefit of the Members, their respective successors, heirs, executors, administrators and assigns. 11.9 Counterparts. This Agreement may be executed in separate counterparts, including by facsimile, each of which when so executed shall be an original and all such counterparts shall together constitute one and the same instrument. [Signature Page Follows] Does: USI:9639502v5 28 EFTA00588806 IN WITNESS WHEREOF, the parties have set their hands as of the day and year first above written. MANAGER: LEON D. BLACK MEMBER: BLACK FAMILY PARTNERS, M. By: Black Family GP, LLC, its General Partner By: LEON D. BLACK, Manager 29 Signature Page to NAR Invesunents Lit Agreement of Limited Liability Company US1:9639502eS EFTA00588807 Schedule A MEMBER Initial Contribution Percentage Interest Black Family Partners, M. 100% Total 100% DAR Investments LLC Awe:nem of Limited Lanni* Company Dorn: USI:9639502y5 EFTA00588808 Schedule B Title Officer Name President JOHN J. HANNAN Vice President RICHARD RESSLER Secretary EILEEN ALEXANDERSON Treasurer BARRY J. COHEN NAR Investments LLC Awe:nem of Limited Liability Company Doea: USI:9639502v5 EFTA00588809