UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 28, 2023
HERSHA HOSPITALITY TRUST
(Exact Name of Registrant as Specified in Charter)
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Maryland
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001-14765
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25-1811499
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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44 Hersha Drive
Harrisburg, Pennsylvania
(Address of Principal Executive Offices)
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17102
(Zip Code)
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(717) 236-4400
(Registrant’s telephone number, including area code)
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered or to be registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which
registered
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Class A Common Shares of Beneficial Interest, par value $0.01 per share
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HT
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New York Stock Exchange
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6.875% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share
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HT-PC
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New York Stock Exchange
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6.50% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share
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HT-PD
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New York Stock Exchange
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6.50% Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share
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HT-PE
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New York Stock Exchange
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
On November 28, 2023, Hersha Hospitality Trust, a Maryland real estate investment trust (the “Company”), completed the transactions contemplated by the Agreement and
Plan of Merger (the “Merger Agreement”), dated as of August 27, 2023, by and among Hersha Hospitality Limited Partnership, a Virginia limited partnership and a subsidiary of the Company (“Company OP”), 1776 Portfolio Investment, LLC, a
Delaware limited liability company (“Parent”), 1776 Portfolio REIT Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“REIT Merger Sub”), and 1776 Portfolio OP Merger Sub, LP, a Virginia
limited partnership and subsidiary of Parent (“OP Merger Sub”). Pursuant to the Merger Agreement, at the closing, OP Merger Sub merged with and into Company OP (the “Partnership Merger”) and, immediately following the Partnership
Merger, the Company merged with and into REIT Merger Sub (the “Company Merger” and, together with the Partnership Merger, the “Mergers”). Upon completion of the Company Merger, REIT Merger Sub survived as a wholly owned subsidiary of
Parent and the separate existence of the Company ceased.
| Item 1.02 |
Termination of a Material Definitive Agreement.
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In connection with the consummation of the Mergers, on November 28, 2023, the Company repaid in full all outstanding indebtedness and terminated all obligations and
commitments under its Credit Agreement, dated as of August 4, 2022, by and among Company OP, the Company, Citibank, N.A. and the other parties signatories thereto (the “Existing Company Debt”). The Company did not incur any early termination
penalties as a result of the repayment of indebtedness or termination of the Existing Company Debt, which had a scheduled maturity date of August 4, 2024 for both the secured term loan and the secured revolving line of credit. In connection with the
repayment of the outstanding indebtedness by the Company under the Existing Company Debt, any guarantees, liens and other security interests in connection therewith were automatically terminated and/or released, as applicable.
The material terms of the Existing Company Debt are more fully described in the Company’s Current Report on Form 10-Q filed with the U.S. Securities and Exchange
Commission (the “SEC”) on November 9, 2023, which description is incorporated herein by reference. The description of the Existing Company Debt incorporated by reference is not complete and is subject to and entirely qualified by reference to
the full text of the Existing Company Debt.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets.
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The information set forth in the Introductory Note and under Items 3.01, 5.01, 5.02, and 8.01 is incorporated herein by reference into this Item 2.01.
On November 28, 2023, pursuant to the Merger Agreement, (i) OP Merger Sub merged with and into Company OP, with Company OP surviving the Partnership Merger (the “Surviving
Partnership”) and (ii) immediately thereafter, the Company merged with and into REIT Merger Sub, the separate existence of the Company ceased, and REIT Merger Sub survived the Company Merger as a wholly owned subsidiary of Parent (the “Surviving
Entity”).
As a result of the Mergers, in accordance with the terms and conditions of the Merger Agreement, at the effective time of the Company Merger (the “Company Merger
Effective Time”), each Priority Class A common share of beneficial interest, $0.01 par value per share, of the Company (each a “Company Common Share”) issued and outstanding immediately prior to the Company Merger Effective Time (other
than any Excluded Shares) was automatically cancelled and converted into the right to receive an amount in cash equal to $10.00 per share (the “Merger Consideration”), without interest. In addition, as a result of the Mergers, in accordance
with the terms and conditions of the Merger Agreement, at the Company Merger Effective Time, each of the Company’s 6.875% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share, of the Company, 6.50% Series
D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share, of the Company, and 6.50% Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share, of the Company (together, the “Company
Preferred Shares”) issued and outstanding immediately prior to the Company Merger Effective Time (other than any Excluded Shares (as defined below)) was automatically cancelled and converted into the right to receive an amount in cash equal to
$25.00 per share plus the accrued and unpaid dividends applicable to each series of Company Preferred Shares, if any, up to and including November 28, 2023, without interest (the “Preferred Merger Consideration”).
At the Company Merger Effective Time, each membership interest of REIT Merger Sub issued and outstanding immediately prior to the Company Merger Effective Time survived the
Company Merger and remained issued and outstanding following the Company Merger Effective Time as a membership interest of the Surviving Entity, and no consideration was delivered in exchange therefor.
At the Company Merger Effective Time, each issued and outstanding Company Common Share and/or Company Preferred Share that was owned by Parent, REIT Merger Sub or any
subsidiary of Parent or the Company or any subsidiary of the Company immediately prior to the Company Merger Effective Time (collectively, the “Excluded Shares”), if any, were automatically cancelled and retired and ceased to exist, and no
consideration was delivered in exchange therefor.
At the effective time of the Partnership Merger (the “Partnership Merger Effective Time”), each Company Partnership Unit (as defined in the Merger Agreement) issued
and outstanding immediately prior to the Partnership Merger Effective Time (other than any Excluded Units (as defined below)) was converted into the right to receive an amount in cash equal to $10.00 per unit, without interest, subject to the terms
and conditions set forth in the Merger Agreement (the “OP Merger Consideration”). Each Company Partnership Unit (including for the avoidance of doubt, any Company Preferred Partnership Units (as defined in the Merger Agreement)) owned by the
Company or any subsidiary of the Company (including Company OP), in each case, as of immediately prior to the Partnership Merger Effective Time (collectively, the “Continuing Units”), was unaffected by the Partnership Merger and remained
outstanding as a partnership unit of the Surviving Partnership held by the Company or relevant subsidiary of the Company and no consideration was delivered in exchange therefor. Each Company Partnership Unit owned by Parent, OP Merger Sub or any of
their respective subsidiaries, in each case, as of immediately prior to the Partnership Merger Effective Time (together with the Continuing Units, the “Excluded Units”) was cancelled and ceased to exist, and no consideration was delivered in
exchange therefor.
In accordance with the terms and subject to the conditions set forth in the Merger Agreement, at the Company Merger Effective Time, each Company Restricted Share Award (as
defined in the Merger Agreement) that was outstanding as of immediately prior to the Company Merger Effective Time, including those held by the Company’s trustees, vested and all restrictions thereupon lapsed, and each Company Restricted Share Award
was cancelled and converted into the right to receive a payment (without interest and subject to applicable tax withholding) equal to the product of (i) the number of Company Common Shares underlying such Company Restricted Share Award as of
immediately prior to the Company Merger Effective Time and (ii) $10.00.
In accordance with the terms and subject to the conditions set forth in the Merger Agreement, at the Partnership Merger Effective Time, each Company LTIP Unit (as defined
in the Merger Agreement) that was outstanding and unvested as of immediately prior to the Partnership Merger Effective Time, including those held by the Company’s trustees and executives, vested and became transferable and all restrictions thereupon
lapsed, and immediately thereafter, effective as of the Partnership Merger Effective Time, the Company caused a Forced Conversion (as defined in the Merger Agreement) with respect to all Company LTIP Units then eligible for conversion (after giving
effect to the vesting of all Company LTIP Units as contemplated by the Merger Agreement) such that, as of the Partnership Merger Effective Time, each then outstanding Company LTIP Unit was converted into an equal number of Company Partnership Units.
For the avoidance of doubt, such converted Company LTIP Units did not convert into Company Preferred Partnership Units, and the Company Partnership Units issued in respect of such Company LTIP Unit conversion were treated in the same manner under the
Merger Agreement as other outstanding Company Partnership Units.
The Company’s Equity Plan (as defined in the Merger Agreement) was terminated as of the Company Merger Effective Time.
The foregoing description of the Merger Agreement and the Mergers is not complete and is subject to and entirely qualified by reference to the full text of the Merger
Agreement, which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on August 28, 2023.
| Item 3.01 |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
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In connection with the consummation of the Mergers, the Company requested that The New York Stock Exchange (“NYSE”) suspend trading of Company Common Shares and
Company Preferred Shares on November 28, 2023, delist the Company Common Shares and Company Preferred Shares from the NYSE, and file a Form 25 with the SEC to report the delisting of Company Common Shares and Company Preferred Shares from the NYSE.
The NYSE filed a Form 25 on November 28, 2023 to provide notification of such delisting and to effect the deregistration of Company Common Shares and Company Preferred Shares under Section 12(b) of the U.S. Securities Exchange Act of 1934, as amended
(the “Exchange Act”). The Company intends to file a Form 15 with the SEC to terminate the registration of Company Common Shares and Company Preferred Shares under the Exchange Act and to suspend the Company’s reporting obligations under the
Exchange Act with respect to Company Common Shares and Company Preferred Shares. The information set forth in the Introductory Note and under Item 2.01 is incorporated herein by reference into this Item 3.01.
| Item 3.03 |
Material Modification to Rights of Security Holders.
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The information set forth in the Introductory Note and under Items 2.01, 3.01, and 5.01 and is incorporated herein by reference into this Item 3.03.
| Item 5.01 |
Changes in Control of Registrant.
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As a result of the consummation of the Mergers, a change of control of the registrant occurred, and the Company merged with and into REIT Merger Sub, the separate existence
of the Company ceased, and REIT Merger Sub survived the Company Merger as a wholly owned subsidiary of Parent. Parent funded the Merger Consideration, Preferred Merger Consideration, and OP Merger Consideration with equity contributions from
affiliates of KSL Capital Partners, LLC. In addition, Parent received debt financing from Wells Fargo Bank, National Association and Citigroup Global Markets Inc. to (i) pay a portion of the consideration due under the Merger Agreement in order to
directly or indirectly acquire the properties that will secure such debt financing (the “Properties”), (ii) repay existing indebtedness that encumbers the Properties, (iii) pay carrying costs with respect to the Properties, (iv) fund any
required upfront reserves (if any), (v) pay costs and expenses incurred in connection with the debt financing, the operation of the Properties and other transaction costs, (vi) fund any working capital requirements of the Properties, and (vii) fund
such other general purposes as the borrower will determine in its sole discretion. The information set forth in the Introductory Note and under Items 2.01, 3.01, 3.03, and 5.02 is incorporated herein by reference into this Item 5.01.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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In connection with the consummation of the Mergers, (i) each trustee of the Company immediately prior to the Company Merger Effective Time ceased to be a trustee of the
Company at the Company Merger Effective Time and (ii) each of the managers of Hersha Holding RC Owner, LLC and Hersha Holding RC Lessee, LLC, in each case, ceased to be managers of Hersha Holding RC Owner, LLC and Hersha Holding RC Lessee, LLC, as
applicable, at the Company Merger Effective Time. The information set forth in the Introductory Note and under Item 2.01 is incorporated herein by reference into this Item 5.02.
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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At the Company Merger Effective Time, the certificate of formation of REIT Merger Sub, as in effect immediately prior to the Company Merger Effective Time, became the
certificate of formation of the Surviving Entity, in the form attached hereto as Exhibit 3.1. At the Company Merger Effective Time, the limited liability company agreement of REIT Merger Sub became the limited liability company agreement of the
Surviving Entity, in the form attached hereto as Exhibit 3.2.
The information set forth in the Introductory Note and under Item 2.01 is incorporated herein by reference into this Item 5.03.
| Item 9.01. |
Financial Statements and Exhibits
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(d) Exhibits
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Exhibit
No.
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Description
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Agreement and Plan of Merger, dated as of August 27, 2023, by and among Hersha Hospitality Trust, Hersha Hospitality Limited Partnership, 1776 Portfolio Investment, LLC, 1776 Portfolio REIT
Merger Sub, LLC, and 1776 Portfolio OP Merger Sub, LP (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on August 28, 2023).
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Certificate of Formation of the Surviving Entity.
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Limited Liability Company Agreement of the Surviving Entity.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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HERSHA HOSPITALITY TRUST
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Dated: November 28, 2023
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By:
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/s/Nolen Taylor
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Name:
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Nolen Taylor
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Title:
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Chief Financial Officer, Treasurer and Assistant Secretary
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FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
1776 PORTFOLIO REIT MERGER SUB, LLC
THE UNDERSIGNED is executing this First Amended and Restated Limited Liability Company Agreement (this “Agreement”) of 1776 Portfolio REIT Merger Sub, LLC (the “Company”) on November 28, 2023 pursuant to the provisions of the Delaware
Limited Liability Company Act, 6 Del. C. §§ 18‑101, et seq. (the “Act”).
WHEREAS, the undersigned executed that certain Limited Liability Company Agreement of the Company (the “Original Agreement”) on August 22, 2023; and
WHEREAS, in connection with certain transactions entered into by the Company, the undersigned wishes to amend and restate the Original Agreement in
its entirety and enter into this Agreement.
NOW, THEREFORE, the undersigned does hereby certify and agree as follows:
1. Name.
The name of the Company shall be 1776 Portfolio REIT Merger Sub, LLC, or such other name as 1776 Portfolio Investment, LLC (the “Managing Member”) may from time to time
hereafter designate.
2. Definitions.
Capitalized terms not otherwise defined herein shall have the meanings set forth in the Act.
3. Purpose.
The purpose of the Company shall be directly or indirectly through subsidiaries or affiliates (i) to engage in any lawful business under the Act and applicable law that the Managing Member determines the Company shall engage in and (ii) to do all
things necessary or incidental thereto.
4. Offices.
(a) The principal place of business and office of the
Company shall be located at, and the Company’s business shall be conducted from, such place or places as the Managing Member may from time to time designate.
(b) The registered office of the Company in the State of
Delaware shall be located at c/o Corporation Service Company, 251 Little Falls Drive, in the City of Wilmington, County of New Castle, Delaware 19808. The name and address of the registered agent of the Company for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 251 Little Falls Drive, in the City of Wilmington, County of New Castle, Delaware 19808. The Managing Member may from time to time change the registered agent or office by an amendment
to the Certificate of Formation of the Company.
5. Members.
The names and business addresses of the Members of the Company (the “Members”) are set forth in Annex A.
6. Term.
The term of the Company commenced on the date of filing of the Certificate of Formation of the Company in accordance with the Act and shall continue until the Company is dissolved and its affairs are wound up in accordance with Section 14 of this Agreement.
7. Management
of the Company.
(a) The Managing Member shall have the exclusive right to
manage the business of the Company, and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Company and, in general, all powers permitted to be exercised by a manager
under the Act. The Managing Member may appoint, employ or otherwise contract with any persons or entities for the transaction of the business of the Company or the performance of services for or on behalf of the Company, and the Managing Member may
delegate to any such person or entity such authority to act on behalf of the Company as the Managing Member may from time to time deem appropriate.
(b) The Managing Member is hereby
designated as an authorized person, within the meaning of the Act, to do and perform, or cause to be done and performed, all such acts, deeds and things and to make, execute and deliver, or cause to be made, executed and delivered, all such
agreements, undertakings, documents, instruments or certificates in the name and on behalf of the Company or otherwise as it may deem necessary or appropriate in furtherance of the ordinary course of business of the Company.
(c) No Member, in its status as such,
shall have the right to take part in the management or control of the business of the Company or to act for or bind the Company or otherwise to transact any business on behalf of the Company.
(d) The execution, delivery and filing
of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware by Timothy Nolen Taylor as an “authorized person” within the meaning of the Act is hereby ratified and confirmed in all respects. The Managing
Member is hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and file the Certificate of Formation of the Company (and any amendments and/or restatements thereof) and any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business, and to do and perform, or cause to be done and performed, all such acts, deeds and
things and to make, execute and deliver, or cause to be made, executed and delivered, all such agreements, undertakings, documents, instruments or certificates in the name and on behalf of the Company or otherwise as it may deem necessary or
appropriate in furtherance of the ordinary course of business of the Company.
(e) Steven S. Siegel is hereby appointed
as President of the Company and in such capacity is authorized to make, execute and deliver, or cause to be made, executed and delivered, all agreements, undertakings, documents, instruments or certificate in the name and on behalf of the Company
or otherwise as he may deem necessary or appropriate in furtherance of the ordinary course of business of the Company.
(f) Timothy Nolen Taylor is hereby
appointed as Chief Financial Officer, Treasurer & Assistant Secretary of the Company and in such capacity is authorized to make, execute and deliver, or cause to be made, executed and delivered, all agreements, undertakings, documents,
instruments or certificate in the name and on behalf of the Company or otherwise as he may deem necessary or appropriate in furtherance of the ordinary course of business of the Company.
(g) Kevin Rohnstock is hereby appointed
as Vice President & Secretary of the Company and in such capacity is authorized to make, execute and deliver, or cause to be made, executed and delivered, all agreements, undertakings, documents, instruments or certificate in the name and on
behalf of the Company or otherwise as he may deem necessary or appropriate in furtherance of the ordinary course of business of the Company.
8. Capital
Contributions. Members shall make capital contributions to the Company in such amounts and at such times as they shall mutually agree.
9. Assignments
of Membership Interest. No Member may sell, assign, pledge or otherwise transfer or encumber (collectively, “Transfer”) all or any part of its interest in the
Company, nor shall any Member have the power to substitute a transferee in its place as a substitute Member, without, in either event, having obtained the prior written consent of the Managing Member, whose consent may be given or withheld in its
sole discretion.
10. Resignation.
No Member shall have the right to resign from the Company except with the consent of the Managing Member and upon such terms and conditions as may be specifically agreed upon between the Managing Member and the resigning Member. The provisions hereof
with respect to distributions upon resignation are exclusive, and no Member shall be entitled to claim any further or different distribution upon resignation under Section 18‑604 of the Act or otherwise.
11. Additional
Members. The Managing Member shall have the right to admit additional Members upon such terms and conditions, at such time or times, and for such capital contributions as shall be determined by the Managing Member; and in connection
with any such admission, the Managing Member shall have the right to amend Annex A to this Agreement to reflect the name and address of the admitted Member.
12. Allocations
and Distributions. Distributions of cash or other assets of the Company shall be made at such times and in such amounts as the Managing Member may determine. Distributions shall be made to (and profits and losses of the Company shall
be allocated among) Members pro rata in accordance with the amount of their contributions to the Company. Notwithstanding anything to the contrary contained in this Agreement, the Company, and the Managing Member on behalf of the Company,
shall not be required to make a distribution to any Member on account of its interest in the Company if such distribution would violate the Act or other applicable law.
13. Return
of Capital. No Member has the right to receive, and the Managing Member has absolute discretion to make, any distributions to a Member which include a return of all or any part of such Member’s capital contribution, provided that upon
the dissolution and winding up of the Company, the assets of the Company shall be distributed as provided in Section 18‑804 of the Act.
14. Dissolution.
The Company shall be dissolved and its affairs wound up and terminated upon the first to occur of the following:
(a) the determination of a majority in interest of the
Members to dissolve the Company;
(b) any time there are no Members of the
Company unless the Company is continued in accordance with the Act; or
(c) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
15. Limitation of Trustee, Director and Officer Liability. To the maximum extent that Delaware law in effect from time to time permits limitation of the liability of members, managers, trustees, directors and officers of a
limited liability company, no Member, manager, trustee, director or officer of the Company shall be liable to the Company or to any Member for monetary damages. Neither the amendment nor repeal of this Section 15, nor the adoption or amendment of any other provision of this Agreement inconsistent with this Section 15, shall apply to
or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act that occurred prior to such amendment, repeal or adoption. In the absence of any Delaware statute limiting the liability of members,
managers, trustees, directors and officers of a Delaware limited liability company for monetary damages in a suit by or on behalf of the Company or by any Member, no Member, manager, trustee, director or officer of the Company shall be liable to
the Company or any Member for money damages except to the extent that (a) the Member, manager, trustee, director or officer actually received an improper benefit or profit in money, property or services for the amount of the benefit or profit in
money, property or services actually received; or (b) a judgment or other final adjudication adverse to the Member, manager, trustee, director or officer is entered in a proceeding based on a finding in the proceeding that the Member’s, manager’s,
trustee’s, director’s or officer’s action or failure to act was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding.
16. Express Exculpatory Clauses in Instruments. Neither the Members nor the managers, trustees, directors, officers, employees or agents of the Company shall be liable under any written instrument creating an obligation of the
Company, and all individuals, corporations, general and limited partnerships, stock companies or associations, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, real estate investment trusts or
other entities and governments and agencies and political subdivisions thereof (collectively, “Persons”) shall look solely to the Company Property (as defined below) for
the payment of any claim under or for the performance of that instrument. The omission of the foregoing exculpatory language from any instrument shall not affect the validity or enforceability of such instrument and shall not render any Member,
manager, trustee, director, officer, employee or agent liable thereunder to any third party, nor shall the Members, managers, trustees, directors or any officer, employee or agent of the Company be liable to anyone for such omission. As used in
this Section 16, “Company Property” means any and all property, real, personal or otherwise,
tangible or intangible, which is transferred or conveyed to the Company or the managers, trustees or directors (including all rents, income, profits and gains therefrom), which is owned or held by, or for the account of, the Company or the
managers, trustees or directors.
17. Indemnification. The Company shall indemnify, to the maximum extent permitted by Delaware law in effect from time to time, and pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a)
any individual who is a present or former shareholder, Member, manager, director, trustee or officer of the Company or (b) any individual who, while a Member, manager, trustee or director of the Company and at the request of the Company, serves or
has served as a member, manager, director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, real estate investment trust, employee benefit plan or other enterprise from and against any claim or
liability to which such person may become subject or which such person may incur by reason of his status as a present or former shareholder, Member, manager, trustee, director or officer of the Company. The Company shall have the power, with the
approval of the Managing Member, to provide such indemnification and advancement of expenses to a person who served as a predecessor of the Company in any of the capacities described in (a) or (b) above, and to any employee or agent of the Company
or a predecessor of the Company.
18. Amendments.
This Agreement may be amended only upon the written consent of all the Members. Notwithstanding the foregoing, the Managing Member is authorized to revise Annex A from time
to time to reflect the admission, removal or resignation of a Member and other modifications to or changes in the information set forth therein, in each case in accordance with the terms of this Agreement.
19. Governing
Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware. In particular, the Company has been formed pursuant to the Act, and the rights and liabilities of the Members shall be as provided
therein, except as herein otherwise expressly provided.
20. Miscellaneous.
The Members shall not have any liability for the debts, obligations or liabilities of the Company except to the extent provided by this Agreement or the Act. This Agreement shall be governed by, and construed under, the laws of the State of Delaware,
without regard to its conflict of law rules.
21. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first written above.
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MANAGING MEMBER:
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1776 PORTFOLIO INVESTMENT, LLC
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By:
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/s/ Nolen Taylor |
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Name:
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Nolen Taylor
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Title:
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Chief Financial Officer, Treasurer & Assistant Secretary
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Annex A
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Names and Addresses of Members
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1776 Portfolio Investment, LLC
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c/o KSL Capital Partners, LLC
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100 St. Paul Street, Suite 800
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Denver, Colorado 80206
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