Exhibit 10.3






AMENDED AND RESTATED

LIMITED LIABILITY COMPANY

OPERATING AGREEMENT


OF


THE GALE
PFV INVESTOR COMPANY, L.L.C.


(a
Delaware Limited Liability Company)






 


May 9,
2006






 















 


TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  I.

  	
   

  	
  DEFINED TERMS

  	
   

  	
  1

  
	
   

  	
   

  	
  1.01.

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
   

  	
   

  	
  1.02.

  	
   

  	
  Other Terms

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
   

  	
  ORGANIZATION

  	
   

  	
  7

  
	
   

  	
   

  	
  2.01.

  	
   

  	
  Formation.

  	
   

  	
  7

  
	
   

  	
   

  	
  2.02.

  	
   

  	
  Name and Principal Place of Business.

  	
   

  	
  7

  
	
   

  	
   

  	
  2.03.

  	
   

  	
  Term

  	
   

  	
  8

  
	
   

  	
   

  	
  2.04.

  	
   

  	
  Registered Agent, Registered Office and Foreign
  Qualification

  	
   

  	
  8

  
	
   

  	
   

  	
  2.05.

  	
   

  	
  Purpose

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
   

  	
  MEMBERS

  	
   

  	
  8

  
	
   

  	
   

  	
  3.01.

  	
   

  	
  Admission of Members

  	
   

  	
  8

  
	
   

  	
   

  	
  3.02.

  	
   

  	
  Limitation on Liability.

  	
   

  	
  8

  
	
   

  	
   

  	
  3.03.

  	
   

  	
  Third-Party Debt Liability

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
   

  	
  CAPITAL

  	
   

  	
  9

  
	
   

  	
   

  	
  4.01.

  	
   

  	
  Records

  	
   

  	
  9

  
	
   

  	
   

  	
  4.02.

  	
   

  	
  Capital Contributions

  	
   

  	
  9

  
	
   

  	
   

  	
  4.03.

  	
   

  	
  Capital Accounts

  	
   

  	
  9

  
	
   

  	
   

  	
  4.04.

  	
   

  	
  No Further Capital Contributions

  	
   

  	
  10

  
	
   

  	
   

  	
  4.05.

  	
   

  	
  Book Basis Adjustments

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
   

  	
  INTERESTS IN THE COMPANY

  	
   

  	
  11

  
	
   

  	
   

  	
  5.01.

  	
   

  	
  Percentage Interests

  	
   

  	
  11

  
	
   

  	
   

  	
  5.02.

  	
   

  	
  Return of Capital

  	
   

  	
  11

  
	
   

  	
   

  	
  5.03.

  	
   

  	
  Ownership

  	
   

  	
  11

  
	
   

  	
   

  	
  5.04.

  	
   

  	
  Waiver of Partition; Nature of Interests in the
  Company

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
   

  	
  ALLOCATIONS AND DISTRIBUTIONS

  	
   

  	
  11

  
	
   

  	
   

  	
  6.01.

  	
   

  	
  Allocations

  	
   

  	
  11

  
	
   

  	
   

  	
  6.02.

  	
   

  	
  Special Allocations and Compliance with
  Section 704(b)

  	
   

  	
  12

  
	
   

  	
   

  	
  6.03.

  	
   

  	
  Distributions

  	
   

  	
  13

  
	
   

  	
   

  	
  6.04.

  	
   

  	
  Distributions in Liquidation

  	
   

  	
  14

  
	
   

  	
   

  	
  6.05.

  	
   

  	
  Reinvestment of Cash Flow

  	
   

  	
  14

  
	
   

  	
   

  	
  6.06.

  	
   

  	
  Tax Matters

  	
   

  	
  14

  
	
   

  	
   

  	
  6.07.

  	
   

  	
  Tax Matters Partner

  	
   

  	
  14

  
	
   

  	
   

  	
  6.08.

  	
   

  	
  Section 704(c)

  	
   

  	
  15

  
	
   

  	
   

  	
  6.09.

  	
   

  	
  REIT Compliance

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VII.

  	
   

  	
  MANAGEMENT

  	
   

  	
  15

  
	
   

  	
   

  	
  7.01.

  	
   

  	
  Management

  	
   

  	
  15

  



 



 i
 






 



 


	
  

  	
   

  	
  7.02.

  	
   

  	
  Meetings of the Members.

  	
   

  	
  16

  
	
   

  	
   

  	
  7.03.

  	
   

  	
  Remuneration for Managing Member

  	
   

  	
  17

  
	
   

  	
   

  	
  7.04.

  	
   

  	
  Duties and Conflicts.

  	
   

  	
  17

  
	
   

  	
   

  	
  7.05.

  	
   

  	
  Company Expenses

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VIII.

  	
   

  	
  BOOKS AND RECORDS

  	
   

  	
  18

  
	
   

  	
   

  	
  8.01.

  	
   

  	
  Books and Records

  	
   

  	
  18

  
	
   

  	
   

  	
  8.02.

  	
   

  	
  Accounting and Fiscal Year

  	
   

  	
  18

  
	
   

  	
   

  	
  8.03.

  	
   

  	
  Reports.

  	
   

  	
  18

  
	
   

  	
   

  	
  8.04.

  	
   

  	
  The Company Accountant

  	
   

  	
  19

  
	
   

  	
   

  	
  8.05.

  	
   

  	
  Reserves

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IX.

  	
   

  	
  TRANSFER OF INTERESTS

  	
   

  	
  19

  
	
   

  	
   

  	
  9.01.

  	
   

  	
  No Transfer.

  	
   

  	
  19

  
	
   

  	
   

  	
  9.02.

  	
   

  	
  Permitted Transfers.

  	
   

  	
  19

  
	
   

  	
   

  	
  9.03.

  	
   

  	
  Transferees

  	
   

  	
  20

  
	
   

  	
   

  	
  9.04.

  	
   

  	
  Admission of Additional Members.

  	
   

  	
  20

  
	
   

  	
   

  	
  9.05.

  	
   

  	
  Drag-Along Rights.

  	
   

  	
  20

  
	
   

  	
   

  	
  9.06.

  	
   

  	
  Override on Permitted Transfers.

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
   

  	
  EXCULPATION AND INDEMNIFICATION

  	
   

  	
  22

  
	
   

  	
   

  	
  10.01.

  	
   

  	
  Exculpation

  	
   

  	
  22

  
	
   

  	
   

  	
  10.02.

  	
   

  	
  Indemnification.

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XI.

  	
   

  	
  DISSOLUTION AND TERMINATION

  	
   

  	
  24

  
	
   

  	
   

  	
  11.01.

  	
   

  	
  Dissolution

  	
   

  	
  24

  
	
   

  	
   

  	
  11.02.

  	
   

  	
  Termination

  	
   

  	
  25

  
	
   

  	
   

  	
  11.03.

  	
   

  	
  Liquidating Member

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XII.

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  26

  
	
   

  	
   

  	
  12.01.

  	
   

  	
  Covenants, Representations and Warranties of the
  Members.

  	
   

  	
  26

  
	
   

  	
   

  	
  12.02.

  	
   

  	
  Further Assurances

  	
   

  	
  28

  
	
   

  	
   

  	
  12.03.

  	
   

  	
  Notices

  	
   

  	
  28

  
	
   

  	
   

  	
  12.04.

  	
   

  	
  Governing Law

  	
   

  	
  29

  
	
   

  	
   

  	
  12.05.

  	
   

  	
  Captions

  	
   

  	
  29

  
	
   

  	
   

  	
  12.06.

  	
   

  	
  Pronouns

  	
   

  	
  29

  
	
   

  	
   

  	
  12.07.

  	
   

  	
  Successors and Assigns

  	
   

  	
  29

  
	
   

  	
   

  	
  12.08.

  	
   

  	
  Extension Not a Waiver

  	
   

  	
  29

  
	
   

  	
   

  	
  12.09.

  	
   

  	
  Creditors Not Benefited

  	
   

  	
  30

  
	
   

  	
   

  	
  12.10.

  	
   

  	
  Recalculation of Interest

  	
   

  	
  30

  
	
   

  	
   

  	
  12.11.

  	
   

  	
  Severability

  	
   

  	
  30

  
	
   

  	
   

  	
  12.12.

  	
   

  	
  Entire Agreement

  	
   

  	
  30

  
	
   

  	
   

  	
  12.13.

  	
   

  	
  Publicity

  	
   

  	
  30

  
	
   

  	
   

  	
  12.14.

  	
   

  	
  Counterparts

  	
   

  	
  31

  
	
   

  	
   

  	
  12.15.

  	
   

  	
  Confidentiality.

  	
   

  	
  31

  
	
   

  	
   

  	
  12.16.

  	
   

  	
  Venue

  	
   

  	
  32

  
	
   

  	
   

  	
  12.17.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  32

  



 



 ii















AMENDED AND RESTATED

LIMITED LIABILITY COMPANY

OPERATING AGREEMENT

OF

THE GALE PFV INVESTOR COMPANY, L.L.C.


This AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT of The Gale PFV Investor Company, L.L.C. (the “Company”)
is made and entered into and shall be effective as of May 9, 2006, by and
between The Gale Company, L.L.C., a New Jersey limited liability company (“Managing
Member”), and  Stanley C. Gale (“Gale”).


R E C
I T A L S:


WHEREAS, the Company exists as a limited liability
company pursuant to the provisions of the Delaware Limited Liability Company
Act (the “Delaware Act”) under the name “The Gale PFV Investor Company,
L.L.C.,” pursuant to a Certificate of Formation dated as of August 4, 2003
(the “Certificate of Formation”);


WHEREAS, Gale has been admitted as a Member of the
Company; and


WHEREAS, the parties wish to set forth the rights and
obligations of the Members of the Company.


NOW, THEREFORE,
the parties hereto hereby agree as follows:


I.              DEFINED TERMS


1.01.   Defined Terms.   As used in this Agreement, the
following terms have the meanings set forth below:


“Adjusted Capital Account Balance” means, with
respect to any Member for any period, the balance, if any, in such Member’s
Capital Account as of the end of such period, after giving effect to the
following adjustments:


(a)           Credit
to such Capital Account any amounts that such Member is obligated to restore or
is deemed obligated to restore as described in the penultimate sentence of
Treasury Regulation Section 1.704-2(g)(1) and in Treasury
Regulation Section 1.704-2(i)(5); and


(b)           Debit
to such Capital Account the items described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6).


“Adjusted Capital Account Deficit” means, with
respect to any Member for any taxable year of the Company, the deficit balance,
if any, in such Member’s Adjusted Capital Account Balance as of the end of such
taxable year.


“Affiliate” means, with respect to any Person,
any other Person directly or indirectly controlling, controlled by, or under
common control with such Person or owning or controlling, 



 1
 






 



directly or indirectly, 51% or more of the outstanding
voting interests of such Person. For purposes of this definition, the term “control”,
when used with respect to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person whether through the ownership of voting securities, by
contract or otherwise.


“Agreement” means this Amended and Restated
Limited Liability Company Operating Agreement, including any exhibits or
schedules attached hereto, as the same may be further amended or restated from
time to time pursuant to the terms of this Agreement.


“Book Basis” means, with respect to any asset
of the Company, the adjusted basis of such asset for federal income tax
purposes; provided, however, that (a) if any asset is
contributed to the Company, the initial Book Basis of such asset shall equal
its fair market value on the date of contribution (as agreed to by the
Members), and (b) if the Capital Accounts of the Members are adjusted
pursuant to Treasury Regulation Section 1.704-1(b) to reflect
the fair market value of any asset of the Company, the Book Basis of such asset
shall be adjusted to equal its respective fair market value as of the time of
such adjustment (as agreed to by the Members), in accordance with such Treasury
Regulation. The Book Basis of all assets of the Company shall be adjusted
thereafter by depreciation or amortization as provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(g) and
any other adjustment to the basis of such assets other than depreciation or
amortization.


“Business Day” means any day that is not a
Saturday, Sunday or a day on which banks are required or permitted to be closed
in the State of New York.


“Capital Account” means the separate account
maintained for each Member under Section 4.03 hereof.


“Capital Contribution” means the contributions
made by the Members to the capital of the Company pursuant to Article IV
hereof.


“Cash Equivalents”
shall mean (a) debt instruments issued or guaranteed by the United States
or its agencies or instrumentalities and maturing within six months or less
from the date of acquisition; (b) commercial paper rated P-1 or A-1
on the date of acquisition and maturing within six months or less from the date
of acquisition; (c) overnight time deposits (whether or not insured); (d) interest
bearing deposits in domestic and foreign branches of United States commercial
banks having capital and surpluses of at least $250,000,000; (e) money
market mutual funds with assets of at least $750,000,000, substantially all of
which assets consist of obligations of the type described in the foregoing
clauses; and (f) similar quality short term investments.


“Certificate of Formation” has the meaning set
forth in the Recitals to this Agreement.


“CLI Shortfall” has
the meaning set forth in Section 9.05(a) hereof.


“Code” means the Internal Revenue Code of 1986,
as amended. Any reference herein to any specific section or sections of the
Code shall be deemed to include a reference to any corresponding provision of
future laws.


 


[Amended and Restated LLC Agreement of The Gale PFV
Investor Company, LLC]



 2
 






 



“Company” has the meaning set forth the
Preamble to this Agreement.


“Company
Accountant” has the meaning set forth in Section 8.04 hereof.


“Company Minimum Gain” means “partnership
minimum gain” as defined in Treasury Regulation Section 1.704-2(d).


“Confidential Information” has the meaning set
forth in Section 12.15(a) hereof.


“Delaware Act” has the meaning set forth in the
Recitals to this Agreement.


“Drag-Along Rights” has the meaning set forth
in Section 9.05(a) hereto.


“Drag-Along Response Period” has the meaning
set forth in Section 9.05(b) hereto.


“Electronic Participation” has the meaning set
forth in Section 7.02(c) hereof.


“Embargoed Person” has the meaning set forth in
Section 12.01(a)(x) hereof.


“Expenses” means, for any period, the sum of
the total gross cash expenditures of the Company during such period.


“GAAP” has
the meaning set forth in Section 8.02 hereof.


“Gale” has
the meaning set forth in the Preamble of this Agreement.


“Indemnified
Party” has the meaning set forth in Section 10.02 hereof.


“Interest” means, with respect to any Member at
any time, the interest of such Member in the Company at such time, including
the right of such Member to any and all of the benefits to which such Member
may be entitled as provided in this Agreement, together with the obligations of
such Member to comply with all of the terms and provisions of this Agreement.


“Liquidating Member” means the Member
designated as such by the Managing Member from time-to-time; provided, however,
that any Member that causes the dissolution of the Company under Section 11.01(c) hereof
shall not serve as the Liquidating Member.


“Loss” means, for each taxable year or other
period, an amount equal to the Company’s items of taxable deduction and loss
for such year or other period, determined in accordance with Section 703(a) of
the Code (including all items of loss or deduction required to be stated
separately under Section 703(a)(1) of the Code), with the following
adjustments:


(a)           Any
expenditures of the Company described in Section 705(a)(2)(B) of the
Code or treated as Section 705(a)(2)(B) expenditures under Treasury
Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken
into account in computing Loss, will be considered an item of Loss;


(b)           Loss
resulting from any disposition of any assets of the Company with respect to
which gain or loss is recognized for federal income tax purposes will be
computed by reference 



 3
 






 



 


to the Book Basis of such property, notwithstanding
that the adjusted tax basis of such property may differ from its Book Basis;


(c)           In
lieu of depreciation, amortization and other cost recovery deductions taken
into account in computing taxable income or loss, there will be taken into
account depreciation for the taxable year or other period as determined in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g);


(d)           Any
items of deduction and loss specially allocated pursuant to Section 6.08
shall not be considered in determining Loss; and


(e)           Any
decrease to Capital Accounts as a result of any adjustment to the Book Basis of
Company assets pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) shall
constitute an item of Loss.


“Managing Member” has the meaning set forth the
Preamble to this Agreement.


“Managing Member Preferential Return” means,
with respect to the Managing Member, the distribution of Net Cash Flow to the
Managing Member equal to the aggregate amount of (i) the Purchase Amount
plus all of the Managing Member’s Capital Contributions pursuant to Sections
4.01 and 4.02 and (ii) an internal rate of return on the Purchase Amount
plus all of the Managing Member’s Capital Contributions made pursuant to
Sections 4.01 and 4.02 of 10% per annum, based on a 365 or 366-day year, as the case may be,
compounded on a quarterly basis in arrears commencing on the date hereof with
respect to the Purchase Amount and the date or dates that the Managing
Member’s Capital Contribution(s) is
(or are) received by the Company, taking into account the timing and amounts of
all such distributions of Net Cash Flow from the Company to the Managing
Member. Managing Member Preferential Return shall be computed by
assuming that such Capital Contribution(s) made by the Managing
Member, and all such distributions
received by the Managing Member,
occur on the day on which they are actually made or received.


“Material
Notices” has the meaning set forth in Section 12.03 hereof.


“MCRC” has
the meaning set forth in Section 6.09 hereof.


“Member” or “Members” means one or more
(as the case may be) of the Managing Member or Gale and any other Person who,
from time-to-time, is admitted as a member of the Company in accordance with
this Agreement and applicable law, so long as such Person continues as a member
of the Company.


“Member Minimum Gain” means the Company’s “partner
nonrecourse debt minimum gain” as defined in Treasury Regulation Section 1.704-2(i)(2).


“Member Nonrecourse Debt Minimum Gain” means an
amount, with respect to each Member Nonrecourse Debt, equal to the Company
Minimum Gain that would result if such Member Nonrecourse Debt were treated as
a nonrecourse liability of the Company, determined in accordance with Treasury
Regulations Sections 1.704-2(i)(2) and (3).


 



 4
 






 



“Member Nonrecourse Deductions” means “partner
nonrecourse deductions” as defined in Treasury Regulation Section 1.704-2(i)(2).


“Net Cash Flow” means, for any period, the
excess of (a) Revenues for such period over (b) Expenses for such
period.


“Net Loss” means, for any period, the excess of
items of Loss over items of Profit, if applicable, for such period determined
without regard to any items of Profit or Loss allocated pursuant to Section 6.02
hereof.


“Net Profit” means, for any period, the excess
of items of Profit over items of Loss, if applicable, for such period
determined without regard to any items of Profit or Loss allocated pursuant to Section 6.02
hereof.


“Nonrecourse Deductions” has the meaning set
forth in Treasury Regulation Section 1.704-2.


“Payout Percentages”
means, with respect to each Member, the percentages set forth below opposite
its name as follows:




	
  Member

  	
   

  	
  Payout Percentage

  	
   

  
	
  MANAGING MEMBER

  	
   

  	
  50

  	
  %

  
	
  GALE

  	
   

  	
  50

  	
  %

  






 


“Percentage Interests” means, with respect to
each Member, the percentage set forth below opposite its name (subject to
adjustment as provided in this Agreement):




	
  MANAGING MEMBER

  	
   

  	
  99.9

  	
  %

  
	
  GALE

  	
   

  	
  00.1

  	
  %

  






 


“Person” means any individual, partnership,
corporation, limited liability company, trust or other entity.


“Purchase Amount”
means One Million Seven Hundred Seventy Four Thousand Five Hundred
Dollars ($1,774,500).


“Purchaser” means any
third-party prospective purchaser or purchasers of all of the Interests of a
Member which is not a Related Person of such Member.


“Profit” means, for each taxable year or other
period, an amount equal to the Company’s taxable income and gain for such year
or other period, determined in accordance with Section 703(a) of the
Code (including all items of income and gain required to be stated separately
under Section 703(a)(1) of the Code), with the following adjustments:


(a)           Any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Profit or Loss will be added to taxable income;



 5
 






 



(b)           Gain
resulting from any disposition of any assets of the Company with respect to
which gain or loss is recognized for federal income tax purposes will be
computed by reference to the Book Basis of such property, notwithstanding that
the adjusted tax basis of such property may differ from its Book Basis;


(c)           Any
items specially allocated pursuant to Section 6.08 shall not be considered
in determining Profit; and


(d)           Any
increase to Capital Accounts as a result of any adjustment to the Book Basis of
Company assets pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) shall
constitute an item of Profit.


“Readily Marketable
Securities” means those securities that (a) are (i) debt or
equity securities of or other interests in any Person that are traded on a
national security exchange, reported on by the National Association of
Securities Dealers Automated Quotation System or otherwise actively traded over
the counter or (ii) debt securities of an issuer that has debt or equity
securities that are so traded or so reported on and that a nationally
recognized securities firm has agreed to make a market in and (b) are not
subject to restrictions on transfer as a result of any applicable contractual
provisions or the provisions of the Securities Act.


“Regulatory Allocations” has the meaning set
forth in Section 6.02(f) hereof.


“REIT”
means a real estate investment trust as defined under the Code.


“Related Persons” means, as to any Person, its
Affiliates, members, partners, directors, officers, shareholders and employees.


“Required
Capital Call” has the meaning set forth in Section 4.02 hereof.


“Reserve
Accounts” has the meaning set forth in Section 8.05 hereof.


“Revenues” means,
for any period, the sum of the total gross cash revenues received by the
Company during such period.


“Sale” has the meaning set forth in Section 9.05(a) hereof.


“Securities Act” has the meaning set forth in Section 12.01(a)(vi) hereof.


“Securities Laws” has the meaning set forth in Section 12.01(a)(vi) hereof.


“Tax Matters
Partner” has the meaning set forth in Section 6.07 hereof.


“Transfer”
has the meaning set forth in Section 9.01 hereof.


“Treasury Regulation” or “Regulation”
means, with respect to any referenced provision, such provision of the
regulations of the United States Department of the Treasury or any successor
provision.



 6
 






 



“U.S. Government
Blacklists” means, (a) the two (2) lists maintained by the United
States Department of Commerce (Denied Persons and Entities; the Denied
Persons), (b) the list maintained by the United States Department of
Treasury (Specially Designated Nationals and Blocked Persons), and (c) the
list by the United States Department of State (Terrorist Organizations and
Debarred Parties).


1.02.   Other Terms.   As used in this
Agreement, unless otherwise specified, (a) all references to Sections,
Articles or Exhibits are to Sections, Articles or Exhibits of this Agreement, (b) each
accounting term has the meaning assigned to it in accordance with GAAP, (c) all
Exhibits, Schedules, Addenda and other attachments to this Agreement are
specifically incorporated into and made a part of this Agreement by any
reference thereto in this Agreement, (d) the terms “include” and “including”
shall be construed as if followed by the phrase “without limitation”, and (e) all
terms used in this Agreement which are not defined in this Article I shall
have the meaning set forth elsewhere in this Agreement.


II.            ORGANIZATION


2.01.   Formation. (a)           The
Company was formed by the filing of the Certificate of Formation with the
Secretary of State of the State of Delaware. The Members agree that the Company
shall continue to be a limited liability company under and pursuant to the
Delaware Act, upon and subject to the terms and conditions set forth in this
Agreement. The Managing Member is hereby authorized to file and record any
amendments to the Certificate of Formation and such other documents as may be
required or appropriate under the Delaware Act or the laws of any other
jurisdiction in which the Company may conduct business or own property.


(b)           The Managing Member is the Company’s
designated “authorized person” and shall continue as the designated “authorized
person” within the meaning of the Delaware Act. The Managing Member 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
the State of New Jersey and in any other jurisdiction in which the Company may
wish to conduct business.


2.02.        Name and Principal Place of Business.


(a)           The name of the Company shall be The
Gale PFV Investor Company, L.L.C. The Managing Member may change the name of
the Company from time-to-time and may adopt one or more fictitious names for
use by the Company. All business of the Company shall be conducted under such
name, and title to all assets of the Company shall be held in such name.


(b)           The principal place of business and
office of the Company shall be located at the offices of the Managing Member,
100 Campus Drive, Suite 200, Florham Park, New Jersey 07932. The Managing
Member may from time-to-time change such principal office and place of business
or may change or establish such additional offices or places of business of the
Company as it may deem necessary or appropriate for the operation of the
Company’s business. The Managing Member may from time to time change its place
of business or may change or



 7
 






 



establish such substitute
or additional offices or places of business as it may deem necessary or
appropriate.


2.03.   Term.   The term of the Company
commenced on the date of the filing of the Certificate of Formation pursuant to
the Delaware Act and shall continue in full force and effect until the
dissolution and termination of the Company pursuant to Article XI or as otherwise
provided herein.


2.04.   Registered Agent, Registered Office and
Foreign Qualification.   The name of the Company’s registered agent for
service of process shall be Corporation Trust Center, and the address of the
Company’s registered agent and the address of the Company’s registered office
in the State of Delaware shall be 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19801. Such agent and such office may be changed
from time-to-time by the Managing Member. The Managing Member, or any other
Person authorized by the Managing Member, is hereby authorized, for the purpose
of authorizing or qualifying the Company to do business in any state, territory
or dependency of the United States in which it is necessary or expedient for
the Company to transact business, to do any and all acts and things necessary
to obtain from such state, territory or dependency any such authorization or
qualification.


2.05.   Purpose.   The
purpose of the Company shall be transacting any and all lawful business for
which a limited liability company may be organized under the Delaware Act.


III.           MEMBERS


3.01.   Admission of Members.   Gale
and the Managing Member are the Members of the Company as of the date hereof.
Except as expressly permitted by this Agreement, no other Person shall be
admitted as a Member of the Company, and no additional Interests shall be
issued, without the prior written approval of the Managing Member.


3.02.        Limitation on Liability.


(a)           Except as otherwise expressly
provided in the Delaware Act, the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a member of the Company. Except as otherwise
expressly provided in the Delaware Act or as provided in Section 10.02(b) hereof,
but subject to the provisions of subparagraph (b) of this Section 3.02,
the liability of each Member shall be limited to the amount of Capital
Contributions made by such Member in accordance with the provisions of this
Agreement, but only when and to the extent the same shall become due and
payable pursuant to the provisions of this Agreement. Further, no Managing
Member, general or limited partner of any Member, shareholder, member or other
holder of any equity or other ownership or beneficial interest of any Member,
or any officer, director or employee of any of the foregoing or any of their
Related Persons shall be obligated personally for any debt, obligation or other
liability of the Company solely by reason of their being a Managing Member,
general or limited partner of any Member, shareholder or member or other holder
of any equity interest of any Member, or officer, director or employee of any
of the foregoing or any of their Related Persons. Further, failure of the 



 8
 






 



Company to observe any
corporate or other formalities or requirements relating to the exercise of its
powers or the management of its business or affairs under either this Agreement
or the Delaware Act shall not be grounds for the Managing Member, any Member,
general or limited partner of any Member, shareholder or member or other holder
of any equity interest of any Member, or any officer, director or employee of
any of the foregoing or any of their Related Persons to be held liable or
obligated for any debt, obligation or other liability of the Company.


(b)           Notwithstanding any other provision
of this Agreement to the contrary (including the provisions of Section 10.02(b) hereof)
(i) each Member’s liability under this Agreement is explicitly limited to
the assets of such Member, and (ii) neither the Company nor any Member
shall have any recourse against any assets of any Related Person of another
Member (unless such Related Person is itself a Member) or any past, present or
future officers, agents, shareholders, incorporators, directors, principals
(direct or indirect), affiliates, partners, members or representatives of
another Member (unless the same is itself a Member) or any of the assets or
property of any of the foregoing, for the payment or collection of any amount,
judgment, judicial process, arbitration award, fees or costs or for any other obligation
or claim arising out of or based upon this Agreement.


(c)           The provisions of this Section 3.02
shall survive the termination or expiration of this Agreement.


3.03.   Third-Party Debt Liability.   The
parties intend that no Member, or any of its Related Persons, shall have any
liability under or in connection with any third-party debt, including liability
with regard to any environmental matters, recourse carve-outs, fraud,
intentional misconduct, theft or other commonly called “bad-boy acts” or with
regard to any other matter, unless otherwise approved by all of the Members.


IV.           CAPITAL


4.01.   Records.   The Managing Member
shall be required to record in the books and records of the Company, from time
to time, as necessary, any Capital Contributions made in accordance with this Article IV
and any return of capital made in accordance with this Agreement.


4.02.   Capital Contributions.   The
Managing Member may in its sole and absolute discretion make Capital
Contributions to the Company from time to time.


4.03.   Capital Accounts.   A separate
Capital Account will be maintained for each Member in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv). Consistent therewith, the
Capital Account of each Member will be determined and adjusted as follows:


(a)           Each Member’s Capital Account will be
credited with:


(i)            Any contributions
of cash made by such Member to the capital of the Company and fair market value
of any property contributed by such Member to the capital of the Company (net
of any liabilities to which such property is subject or which are assumed by
the Company);


 



 9















(ii)           The Member’s
distributive share of Net Profit and items thereof; and


(iii)          Any other increases
required by Treasury Regulation Section 1.704-1(b)(2)(iv).


(b)           Each Member’s Capital Account will be
debited with:


(i)            Any distributions
of cash made from the Company to such Member (including all amounts paid or
distributed pursuant to the provisions of Section 6.03 hereof other than
distributions made pursuant to Section 6.03(b)(i)) plus the fair market
value of any property distributed in kind to such Member (net of any
liabilities to which such property is subject or which are assumed by such
Member);


(ii)           The Member’s
distributive share of Net Loss and items thereof; and


(iii)          Any other decreases
required by Treasury Regulation Section 1.704-1(b)(2)(iv).


The provisions of this Section 4.03 relating to the maintenance of
Capital Accounts have been included in this Agreement to comply with Section 704(b) of
the Code and the Treasury Regulations promulgated thereunder and will be
interpreted and applied in a manner consistent with those provisions. In the
event the Tax Matters Partner shall determine that it is prudent to modify the
manner in which the Capital Accounts or any debts or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or distributed property or which are assumed by the
Company or any Members) are computed in order to comply with such Regulations,
the Managing Member may make such modification, provided that it is not likely
to have a material effect on the amounts distributed to any Member pursuant to Section 6.04
hereof upon the dissolution of the Company.


4.04.        No
Further Capital Contributions. Except as expressly provided in this
Agreement or with the prior written consent of the Managing Member, no Member
shall be required or entitled to contribute any other or further capital to the
Company, nor shall any Member be required or entitled to loan any funds to the
Company (it being understood, however, that amounts properly incurred by a
Member which are reimbursable by the Company pursuant to and in accordance with
the terms of this Agreement shall not be deemed loans). No Member will have any
obligation to restore any negative or deficit balance in its Capital Account
upon liquidation or dissolution of the Company (and for purposes of this Section 4.04,
Capital Account shall be deemed to also include the capital account of any
Member for financial or book purposes or as set forth in the Delaware Act or
under common law). Notwithstanding any other provision of this Agreement to the
contrary, nothing contained herein will, or is intended or will be deemed to
benefit any creditor of the Company or any creditor of any Member, and no such
creditor shall have any rights, interests or claims hereunder, be entitled to
any benefits or be entitled to require the Company, the Managing Member or any
Member to demand, solicit or accept any loan, advance or additional Capital
Contribution for or to the Company or to enforce any rights which the Company
or any Member may have against any other Member or which any Member may have
against the Company, pursuant to this Agreement or otherwise.









 



 


4.05.        Book
Basis Adjustments. The Book Basis of all assets will be adjusted to equal
their respective fair market values, as agreed to by the Members, upon the
events set forth in Treasury Regulation § 1.704-1(b)(2)(iv)(f)(5).


V.            INTERESTS IN THE COMPANY


 


5.01.        Percentage
Interests. With regard to each Member separately, the Percentage Interest
and the Payout Percentages of each Member as of the date hereof shall be as set
forth in Section 1.01 hereof. The Percentage Interests and the Payout
Percentages of the Members may be adjusted only as set forth in this Agreement.


5.02.        Return
of Capital. No Member shall be liable for the return of the Capital
Contributions (or any portion thereof) of any other Member, it being expressly
understood and agreed that any such return shall be made solely from the assets
of the Company. No Member shall be entitled to withdraw or receive a return of
any part of its Capital Contributions or Capital Account, to receive interest
on its Capital Contributions or Capital Account or to receive any distributions
from the Company, except as expressly provided for in this Agreement or under
applicable law (and for purposes of this Section 5.02, Capital Account
shall be deemed to also include the Capital Account of any Member for financial
or book purposes or as set forth in the Delaware Act or under common law).


5.03.        Ownership.
All assets of the Company shall be owned by the Company, subject to the terms
and provisions of this Agreement.


5.04.        Waiver
of Partition; Nature of Interests in the Company. Except as otherwise
expressly provided for in this Agreement, each of the Members hereby
irrevocably waives any right or power that such Member might have:


(a)           To cause the Company or the assets of
the Company to be partitioned;


(b)           To cause the appointment of a
receiver for all or any portion of the assets of the Company;


(c)           To compel any sale of all or any
portion of the assets of the Company pursuant to any applicable law; or


(d)           To file a complaint or to institute
any proceeding at law or in equity, to cause the termination, dissolution or
liquidation of the Company.


Each of the Members has been induced to enter into this Agreement in
reliance upon the waivers set forth in this Section 5.04, and without such
waivers no Member would have entered into this Agreement. No Member shall have
any interest in any specific assets of the Company. The interests of all
Members in this Company are personal property.


VI.           ALLOCATIONS AND DISTRIBUTIONS


 


6.01.        Allocations.
After the application of Section 6.02, Net Profits and Net Losses for any
taxable year, or portion thereof, shall be allocated among the Members in a
manner such that 









 



the Capital Account of each Member, immediately after
making such allocation, and after taking into account actual distributions made
during such taxable year, or portion thereof, is, as nearly as possible, equal
(proportionately) to (i) the distributions that would be made to such
Member pursuant to Section 6.03 if the Company were dissolved, its affairs
wound up and its assets sold for cash equal to their Book Basis, all Company
liabilities, including the Company’s share of any liability of any entity
treated as a partnership for U.S. federal income tax purposes in which the
Company is a partner, were satisfied (limited with respect to each nonrecourse
liability to the Book Basis of the assets securing such liability) and the net
assets of the Company were distributed in accordance with Section 6.03 to
the Members immediately after making such allocation, minus (ii) such
Member’s share of Member Minimum Gain and Member Nonrecourse Debt Minimum Gain
determined pursuant to Treasury Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), computed immediately prior to the hypothetical sale of
assets. Subject to the other provisions of this Article VI, an allocation
to a Member of a share of Net Profit or Net Loss shall be treated as an
allocation of the same share of each item of income, gain, loss or deduction
that is taken into account in computing Net Profit or Net Loss.


6.02.        Special
Allocations and Compliance with Section 704(b). The following special
allocations shall, except as otherwise expressly provided in this Agreement, be
made in the following order:


(a)           Minimum Gain Chargeback. If there is a net decrease in
Company Minimum Gain during a Fiscal Year, so that an allocation is required by
Treasury Regulations Section 1.704-2(f), each Member will be
allocated, before any other allocation under this Article VI, items of
income and gain for such Fiscal Year (and if necessary, subsequent years) in
proportion to and to the extent of an amount equal to such Member’s share of
the net decrease in Company Minimum Gain determined in accordance with Treasury
Regulations Section 1.704-2(g)(2). This Section 6.02(a) is
intended to comply with, and shall be interpreted consistently with, the “minimum
gain chargeback” provisions of Treasury Regulations Section 1.704-2(f).


(b)           Minimum Gain Attributable to
Member Nonrecourse Debt. If there is a net decrease in Member Nonrecourse
Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal
Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain
attributable to such Member Nonrecourse Debt, determined in accordance with
Treasury Regulations 1.704-2(i)(5), shall be specially allocated items of
the Company’s income and gain for such year (and, if necessary, subsequent
years) in an amount equal to such Member’s share of the net decrease in Member
Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt,
determined in accordance with Treasury Regulations Section 1.704-2(i)(4).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant thereto.
The items to be so allocated shall be determined in accordance with Treasury
Regulations Section 1.704-2(i)(4). This Section 6.02(b) is
intended to comply with the “minimum gain chargeback” requirement of that Section of
the Regulations and shall be interpreted consistently therewith.


(c)           Qualified Income Offset. If
any Member unexpectedly receives any adjustments, allocation or distributions
described in clauses (4), (5) or (6) of Treasury Regulations Section 1.704-1(b)(2)(ii)(d),
items of the Company income shall be specially









 



allocated to such Member
in an amount and manner sufficient to eliminate the deficit balance in its
Adjusted Capital Account created by such adjustments, allocations or
distributions as quickly as possible; provided, however, that an
allocation pursuant to this Section 6.02(c) shall be made only if,
and to the extent that, such Member would have a an Adjusted Capital Account
Deficit after all other allocations provided for in Article VI tentatively
have been made as if this Section 6.02(c)  were not in this Agreement. This Section 6.02(c) is
intended to constitute a “qualified income offset” within the meaning of
Treasury Regulations Section 1.704-l(b)(2)(ii)(d)(3) and shall
be interpreted consistently therewith.


(d)           Nonrecourse Deductions; Member
Nonrecourse Deductions. Nonrecourse Deductions shall be allocated among the
Members in accordance with their Percentage Interests. Member Nonrecourse
Deductions shall be specially allocated to the Member who bears (or is deemed
to bear) the economic risk of loss with respect to the Member Nonrecourse Debt
to which such Member Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(i)(2).


(e)           Limitation on Allocation of Losses.
To the extent that Net Losses or items of loss or deduction otherwise allocable
to a Member hereunder would cause such Member to have an Adjusted Capital
Account Deficit as of the end of the taxable year to which such Net Losses, or
items of loss or deduction, relate (after taking into account the allocation of
all items of income and gain for such taxable period), such Net Losses, or
items of loss or deduction, shall not be allocated to such Member and instead
shall be allocated to the Members in accordance with Section 6.01 as if
such Member were not a Member.


(f)            Regulatory Allocations. Any
allocations required to be made pursuant to Section 6.02(a) through Section 6.02(e) (the
“Regulatory Allocations”) (other than allocations, the effects of which
are likely to be offset in the future by other special allocations) shall be
taken into account, to the extent permitted by the Treasury Regulations, in
computing subsequent allocations of income, gain, loss or deduction pursuant to
Section 6.01 so that the net amount of any items so allocated and all
other items allocated to each Member shall, to the extent possible, be equal to
the amount that would have been allocated to each Member pursuant to Section 6.01
had such Regulatory Allocations under this Section 6.02 not occurred.


(g)           Liquidation. It is intended
that prior to a distribution of the proceeds from a liquidation of the Company,
the positive Capital Account balance of each Member shall be equal to the
amount that such Member is entitled to receive pursuant to Section 6.03. Accordingly,
notwithstanding anything to the contrary in this Article VI, to the extent
permissible under Sections 704(b) of the Code and the Treasury Regulations
promulgated thereunder, Net Profits and Net Losses and, if necessary, items of
gross income and gross deductions, of the Company for the year of liquidation
of the Company (or, if earlier, the year in which all or substantially all of
the Company’s assets are sold, transferred or disposed of) shall be allocated
among the Members so as to bring the positive Capital Account balance of each
Member as close as possible to the amount that such Member would receive if the
Company were liquidated and all the proceeds were distributed in accordance
with Section 6.03.


6.03.        Distributions.
From and after the date hereof, except as provided in Section 6.04, and
subject to Sections 6.05 and 6.09 hereof, the Company shall make distributions
or payments









 



of Net Cash Flow (to the extent and if available) to
the Members in the following manner and order of priority:


(a)           First, an amount of Net Cash Flow
shall be paid to the Managing Member until the Managing Member shall have
received payments of Net Cash Flow, pursuant to this Section 6.03(a), in
an aggregate amount (for the current period and all previous periods) equal to
the Managing Member Preferential Return; and


(b)           Thereafter, any remaining Net Cash
Flow shall be distributed to the Members in accordance with and in proportion
to their respective Payout Percentages, determined as of the moment each dollar
of such distribution is made.


6.04.        Distributions
in Liquidation. Upon the dissolution and winding-up of the Company,
the proceeds of sale and other assets of the Company distributable to the
Members under Section 11.02(c)(iii) shall be distributed, not later
than the latest time specified for such distributions pursuant to Treasury
Regulation Section 1.704-1(b)(2)(ii)(b)(2) to the Members in
accordance with Section 6.03. With the approval of the Managing Member, a
pro rata portion of the distributions that would otherwise be made to the
Members under the preceding sentence may be distributed to a trust established
(for the benefit of the Members) for the purposes of liquidating Company
assets, collecting amounts owed to the Company and paying any contingent or
unforeseen liabilities or obligations of the Company arising out of or in
connection with the Company. The assets of any trust established under this Section 6.04
will be distributed to the Members from time-to-time by the trustee of the
trust upon approval of the Managing Member in the same proportions as the
amount distributed to the trust by the Company would otherwise have been
distributed to the Members under this Agreement.


6.05.        Reinvestment
of Cash Flow. Notwithstanding the provisions of Section 6.03, at the
discretion of the Managing Member, the Company may retain Net Cash Flow of the
Company for any purpose.


6.06.        Tax
Matters. The Members intend for the Company to be treated as a partnership
under the Code. The Managing Member shall make all applicable elections,
determinations and other decisions under the Code, including, without
limitation, the deductibility of a particular item of expense and the positions
to be taken on the Company’s tax return, and shall approve the settlement or
compromise of all audit matters raised by the Internal Revenue Service
affecting the Members generally. The Members shall each take reporting
positions on their respective federal, state and local income tax returns
consistent with the positions determined for the Company by the Managing Member.
The Managing Member shall cause all federal, state and local income and other
tax returns to be timely filed by the Company.


6.07.        Tax
Matters Partner. The Managing Member shall be the tax matters partner
within the meaning of Section 6231(a)(7) of the Code (“Tax Matters
Partner”) and, subject to Section 6.06, shall exercise all rights,
obligations and duties of a tax matters partner under the Code. The Managing
Member, in its capacity as Tax Matters Partner, shall oversee the Company tax
affairs in the overall best interests of the Company and shall comply with the
requirements of Sections 6221 through 6232 of the Code and regulations
promulgated thereunder, and the Members further agree as follows:









 



(a)           The Tax Matters Partner shall have a
continuing obligation to provide the Internal Revenue Service with sufficient
information so that proper notice can be mailed to all Members as provided in Section 6223
of the Code.


(b)           The Tax Matters Partner shall keep
the Members informed of all administrative and/or judicial proceedings for the
adjustment of partnership items (as defined in Section 6231(a)(3) of
the Code and regulations promulgated thereunder).


(c)           The Tax Matters Partner may from time
to time request that a Member provide such documents and information necessary
for the Tax Matters Partner to perform its duties and obligations as Tax
Matters Partner. Each Member shall reasonably cooperate with any such request
by the Tax Matters Partner with respect to any such document or other
information that may be in such Member’s possession.


6.08.        Section 704(c).
In accordance with Section 704(c) of the Code and the applicable
Treasury Regulations thereunder, income, gain, loss, deduction and tax
depreciation with respect to any property contributed to the capital of the
Company, or with respect to any property which has a Book Basis different than
its adjusted tax basis, shall, solely for federal income tax purposes, be
allocated among the Members so as to take into account any variation between
the adjusted tax basis of such property to the Company and the Book Basis of
such property. The Company shall use the “traditional method” without curative
allocations.


6.09.        REIT
Compliance. The Members hereby acknowledge the status of Mack-Cali Realty
Corporation (“MCRC”) (an Affiliate of the Managing Member) as a REIT. Notwithstanding
any other provision of this Agreement to the contrary, neither Member will
require or cause the Company to take any action which may, in the opinion of
MCRC’s independent auditors or legal counsel, result in the loss of MCRC’s
status as a REIT. The Members further agree that, to the extent possible, the
Company shall be managed in a manner so that: 
(a) the Company’s gross income meets the tests provided in Section 856(c)(2) and
(3) of the Code as if the Company were a REIT; (b) the Company’s
assets meet the tests provided in Section 856(c)(4) of the Code as if
the Company were a REIT; and (c) the Company minimizes federal, state and
local income and excise taxes that may be incurred by MCRC, or any of their
Affiliates, including taxes under Section 857(b), 860(c) or 4981 of
the Code.  Furthermore, the Members shall
use reasonable efforts to structure the Company’s transactions to minimize any
prohibited transaction tax or other taxes applicable to any Member and MCRC. The
Members hereby further acknowledge, agree and accept that, pursuant to this Section 6.09,
the Company may be precluded from taking, or may be required to take, an action
which it would not have otherwise taken, even though the taking or the not
taking of such action might otherwise be advantageous to the Company and/or to
one or more of the Members (or one or more of their Affiliates).


VII.          MANAGEMENT


 


7.01.        Management.
(a) Except as otherwise expressly provided in this Agreement, the business
and affairs of the Company shall be controlled by the Managing Member. The Managing
Member shall have responsibility for supervising, directing and overseeing the
activities of the Company, establishing the policies and operating procedures
of the Company, 









 



managing the business and affairs of the Company and
making all decisions as to all matters which the Company has authority to
perform. All decisions made with respect to the management and control of the
Company and approved by the Managing Member shall be binding on the Company and
all Members.


(b)           Subject to the terms and limitations
of this Agreement and the limitations imposed by law, the Managing Member shall
have all of the same powers as a general partner of a general partnership under
the laws of the State of Delaware, including without limitation, the power and
authority to: (i) authorize other persons to execute and deliver such
documents on behalf of the Company as the Managing Member may deem necessary or
desirable for the Company’s business; (ii) perform, or cause to be
performed, all of the Company’s obligations under any agreement to which the
Company is a party; (iii) enter into contracts on behalf of the Company
and make expenditures as are required to operate and manage the Company; and (iv) do
any act which is necessary or desirable to carry out any of the purposes of the
Company.


(c)           The Managing Member may, on behalf of
the Company, employ, engage or retain any Persons (including any Related
Persons of any Member) to act in such capacities as the Managing Member may
determine are necessary or desirable in connection with the Company’s business.


(d)           No Member, other than the Managing
Member, shall have any right or power to participate in or have any control
over the Company’s business, affairs or operations or to act for or to bind the
Company in any matter whatsoever and no Member other than the Managing Member
shall be required or permitted to consent to, acquiesce in, vote on or approve
any action or act taken or decision made by the Managing Member, except as
otherwise expressly provided in this Agreement or as expressly provided in the
Delaware Act.


7.02.        Meetings of the Members.


 


(a)           The Members shall meet at such times
as may be requested by the Managing Member to review the affairs of the Company
or for such other reason as may be determined by the Managing Member, but not
less than once per year. The place of such meetings shall be at the offices of
the Company unless otherwise agreed to by all of the Members.


(b)           Any action required to be taken at a
meeting of the Members or any other action which may be taken at a meeting of
the Members may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the Members unless
otherwise provided by the Delaware Act. Any such consent signed by the Members
as indicated above in the immediately preceding sentence shall be a valid and
proper act of the Members.


(c)           The Members may participate in and
act at meetings of the Members through the use of a conference telephone or
other communications equipment or system by means of which all persons
participating in the meeting can hear each other (“Electronic Participation”).
Participation in such meeting shall constitute attendance in person at the
meeting of the person or persons so participating.









 



(d)           Notice
of any meeting of the Members shall be given no fewer than five (5) Business
Days and no more than twenty (20) Business Days prior to the date of the
meeting (unless such notice is waived in writing). Notice of any meeting of the
Members shall specify the date, time and place of the proposed meeting and the
agenda for the meeting. Notice shall be delivered in the manner set forth in Section 12.03
hereof. The attendance (whether in person or by Electronic Participation) of a
Member at a meeting of the Members (as reflected in the minutes of the meeting)
shall constitute a waiver of notice of such meeting, except where a Member
attends a meeting for the express purpose of objecting to the transaction of
any business because the meeting is not properly called or convened.


(e)           A written record of all meetings of
the Members and all decisions made by the Members shall be made by the Managing
Member, as Secretary, or such other Person as may be appointed by the Managing
Member, and kept in the records of the Company.


7.03.        Remuneration
for Managing Member. Except as otherwise agreed to by all of the Members,
the Managing Member shall not be entitled to receive any salary or other
remuneration or expense reimbursement from the Company for its services as
Managing Member.


7.04.        Duties and Conflicts.


 


(a)           The Managing Member shall devote such
time to the business of the Company as it deems to be necessary or desirable in
connection with its duties and responsibilities hereunder. Except as otherwise
expressly provided in this Agreement or as otherwise approved by the Managing
Member, no Member nor any member, partner, shareholder, officer, director,
employee, agent or representative of any Member shall receive any salary or
other remuneration for its services rendered pursuant to this Agreement.


(b)           Each of the Members recognizes that
the other Member and its members, partners, shareholders, officers, directors,
employees, agents, representatives and Related Persons, has or may in the
future have other business interests, activities and investments, some of which
may be in conflict or competition with the business of the Company, and that
the other Member and its members, partners, shareholders, officers, directors,
employees, agents, representatives and Related Persons, are entitled to carry
on such other business interests, activities and investments. Nothing contained
in this Agreement shall preclude any of the Members from engaging in or
possessing an interest in other business ventures of any nature and
description, independently or with others, including, but not limited to, the
ownership, financing, acquiring, leasing, promoting, improving, operation,
management, syndication, brokerage and/or development of real property,
including, but not limited to, property in the State of New Jersey, on its own
behalf or on behalf of other entities with which any of the Members is
affiliated or otherwise, and nothing contained in this Agreement shall preclude
any of the Members from engaging in any such activities, whether or not
competitive with the Company, without any obligation to offer any interest in
such activities to the Company or to the other Member. Neither the Company nor
the other Member shall have any right, by virtue of this Agreement in or to
such activities, or the income or profits derived therefrom, and the pursuit of
such activities, even if competitive with the business of the Company, shall
not be deemed wrongful or improper.









 



7.05.        Company
Expenses. Except as otherwise expressly provided in this Agreement, and
except for any costs to be borne by any third party under any agreement with
the Company, the Company shall be responsible for paying, and shall pay, all
direct costs and expenses related to the business of the Company. In the event
any such costs and expenses are or have been paid by any Member, such Member
shall be entitled to be reimbursed for such payment so long as such payment is
reasonably necessary for Company business or operations and has been approved
by the Managing Member. Notwithstanding the foregoing, in no event shall the
Company have any obligation to pay or reimburse any Member for (a) any
direct or indirect general overhead expense of such Member, (b) the costs
and expenses, including legal costs, relating to any employees, staff or other
personnel necessary to conduct the day-to-day operations of the Company or to
provide the financial reporting of the Company (other than those required by
the express terms of this Agreement, or any other agreement, to be provided by
third parties, including year-end audited financial statements and tax returns
and reports prepared by third parties), or (c) any travel expenses, unless
in each such case the same have been approved by the Managing Member.


VIII.        BOOKS AND RECORDS


 


8.01.        Books
and Records. The Managing Member shall maintain, or cause to be maintained,
at the expense of the Company, in a manner customary and consistent with good
accounting principles, practices and procedures, a comprehensive system of
office records, books and accounts (which records, books and accounts shall be
and remain the property of the Company) in which shall be entered fully and
accurately each and every financial transaction with respect to the operations
of the Company. Bills, receipts and vouchers shall be maintained on file by the
Managing Member. The Managing Member shall maintain said books and accounts in
a safe manner and separate from any records not having to do directly with the
Company. The Managing Member shall cause audits to be performed and audited
statements and income tax returns to be prepared as required by Section 8.03
hereof. Such books and records of account shall be prepared and maintained by
the Managing Member at the principal place of business of the Company or such
other place or places as may from time-to-time be determined by the Managing
Member.


8.02.        Accounting
and Fiscal Year. The books of the Company shall be kept on the accrual
basis in accordance with United States generally accepted accounting principles
(“GAAP”), and the Company shall report its operations for tax purposes
on the accrual method. The taxable year of the Company shall end on December 31
of each year, unless a different taxable year shall be required by the Code.


8.03.        Reports.


 


(a)           The Managing Member shall prepare or
cause to be prepared at the Company’s expense the financial reports and other
information that the Managing Member may determine are appropriate. Promptly
after the end of each fiscal year and at the expense of the Company, the
Managing Member will cause the Company Accountant to prepare and deliver to
each Member a report setting forth in sufficient detail all such information
and data with respect to business transactions effected by or involving the
Company during such fiscal year as will enable the Company and each Member to
timely prepare its federal, state and local income tax









 



returns in accordance
with the laws, rules and regulations then prevailing. The Managing Member
will also cause the Company Accountant to prepare federal, state and local tax
returns required of the Company, submit those returns to the Managing Member
for its approval as early as practicable but in no event later than ninety (90)
calendar days following the end of the preceding fiscal year and will file or
cause to be filed the tax returns after they have been approved by the Managing
Member. The Managing Member shall prepare and distribute or cause to be
prepared and distributed the reports and statements described in this Section 8.03.


(b)           All decisions as to accounting
principles shall be made by the Managing Member, subject to the provisions of
this Agreement.


8.04.        The
Company Accountant. The Company shall retain as the regular accountant and
auditor for the Company (the “Company Accountant”) a nationally-recognized
accounting firm or any other accounting firm approved and designated by the
Managing Member. The fees and expenses of the Company Accountant shall be a
Company expense. The Company Accountant shall be Price Waterhouse Coopers,
until such time as the Managing Member shall elect to change such Company
Accountant.


8.05.        Reserves.
The Managing Member may, in its discretion, subject to such conditions as it
shall determine, establish cash reserves for the purposes and requirements as
it may deem appropriate (the “Reserve Accounts”). Such Reserve Accounts
will be increased by any deposits thereto from time-to-time of amounts of the
revenues of the Company from operations, the net proceeds from capital
transactions, and contributions and other sources, before any distributions of
such amounts to the Members, as determined reasonably necessary by the Managing
Member. Once established, such Reserve Accounts may be charged by the Managing
Member with any expenditure for the operation of the Company, whether such
items are treated as current expense deductions or as capital expenditures
under GAAP.


IX.           TRANSFER OF INTERESTS


 


9.01.        No Transfer.


 


(a)           Except as expressly permitted or
contemplated by this Agreement, no Member may, directly or indirectly, sell,
assign, give, hypothecate, pledge, encumber or otherwise transfer (“Transfer”)
all or any portion of its Interest without the prior written consent of the
Managing Member (which may be withheld or granted in the sole discretion of the
Managing Member).


(b)           Any Transfer in contravention of this
Article IX shall be null and void. No Member, without the prior written
consent of the Managing Member, may resign from the Company, except as a result
of such Member’s involuntary dissolution or final adjudication as bankrupt or
in connection with a permitted Transfer.


9.02.        Permitted Transfers. 


 


(a)           Subject to the provisions of Section 9.06
hereof, the Managing Member may, from time-to-time and in its sole discretion,
without the consent of the Managing Member, transfer some or all of its
Interest to any Purchaser, without the prior written consent of the









 



Managing Member, provided
such transferee agrees to be bound by all of the terms, conditions and
provisions of this Agreement (including the provisions of this Article IX).


(b)           Subject
to the provisions of Section 9.06 hereof, Gale may, from time-to-time and
in its sole discretion, without the consent of the Managing Member, transfer
all of his Interest to any Person which is wholly owned by Gale, provided such
transferee agrees to be bound by all of the terms, conditions and provisions of
this Agreement (including the provisions of this Article IX), and such
transferee shall remain wholly owned by Gale.


9.03.        Transferees.
No transferee of all or any portion of any Interest shall be admitted as a
substitute Member unless (a) such Interest is transferred in compliance
with the applicable provisions of this Agreement and (b) such transferee
shall have executed and delivered to the Company such instruments as the
Managing Member reasonably deem necessary or desirable to effectuate the
admission of such transferee as a Member and to confirm the agreement of such
transferee to be bound by all the terms, conditions and provisions of this
Agreement with respect to such Interest. At the request of the Managing Member,
each such transferee shall also cause to be delivered to the Company at the
transferee’s sole cost and expense, a favorable opinion of legal counsel
reasonably acceptable to the Managing Member, to the effect that (i) such
transferee has the legal right, power and capacity to own the Interest proposed
to be Transferred, (ii) such Transfer does not violate any provision of
any loan commitment or agreement or any mortgage, deed of trust or other
security instrument encumbering all or any portion of any asset of the Company,
and (iii) such Transfer does not violate any federal or state security
laws and will not cause the Company to become subject to the Investment Company
Act of 1940, as amended. As promptly as practicable after the admission of any
Person as a Member, the books and records of the Company shall be changed to
reflect such admission. All reasonable costs and expenses incurred by the
Company in connection with any Transfer of any Interest and, if applicable, the
admission of any transferee as a Member shall be paid by such transferee.


9.04.        Admission of Additional Members.


 


(a)           No person may be admitted as an
additional Member of the Company (in contrast with admission as a substitute
Member in connection with a permitted Transfer) without the consent of the
Managing Member (which may be withheld or granted in the sole discretion of the
Managing Member).


(b)           Any additional or substitute Member
admitted to the Company shall execute and deliver documentation in form
satisfactory to the Managing Member accepting and agreeing to be bound by this
Agreement, and such other documentation as the Managing Member shall reasonably
require in order to effect such Person’s admission as an additional Member. The
admission of any Person as an additional Member shall become effective on the
date upon which the name of such person is recorded on the books and records of
the Company following the consent of all of the Members to such admission.


9.05.        Drag-Along Rights.


 


(a)           Subject
to the other provisions of this Article IX, if the Managing Member
proposes to sell, exchange or otherwise dispose of (a “Sale”) all of its
Interest in the Company
















for cash, Cash
Equivalents or Readily Marketable Securities or any combination thereof to any
Purchaser, the Managing Member may, in its discretion, elect to require Gale to
sell, exchange or otherwise dispose of all of Gale’s Interest in the Company
pursuant to such Sale for the same proportionate consideration and otherwise on
the same terms and conditions upon which the Managing Member proposes to sell,
exchange or otherwise dispose of its Interest (the “Drag-Along Rights”).
The net consideration received in connection with such sale (which shall be the
consideration received in connection with such sale minus an amount
equal to (x) the Managing Member Preferential Return of 10% per annum,
compounded quarterly, on the Managing Member’s Capital Contributions plus the
Purchase Amount reduced by (y) the aggregate distributions to the Managing
Member pursuant to Section 6.03(a) of this Agreement (such amount,
the “CLI Shortfall”) shall be allocated between the Managing Member and
Gale on the basis and in proportion to each Member’s Payout Percentages. The
CLI Shortfall shall be retained by the Managing Member as additional
consideration for the sale of its Interest.


(b)           Not less than thirty (30) days prior
to the consummation of such Sale (the “Drag-Along Response Period”), the
Managing Member shall provide Gale with written notice of its election to
exercise its Drag-Along Rights, which notice shall include the name of the
Purchaser, and the aggregate consideration to be received by Gale for its
Interest and a copy of all Sale documents (which documents shall be on terms
that are identical to the terms of the Managing Member’s Transfer, except that
Gale shall not be required to make any representations, warranties, covenants
or agreements other than its authority to sign such documents, its title to its
Interests being sold and its obligation to Transfer its Interests). Gale must
execute and deliver to the Managing Member the documents previously furnished
to Gale for execution in connection with the Sale within the Drag-Along
Response Period. Gale does hereby irrevocably constitute and appoint the
Managing Member with full power of substitution, the true and lawful
attorney-in-fact and agent of Gale, to execute and deliver in Gale’s name,
place and stead, all instruments, documents and certificates previously
furnished to Gale for execution in connection with the Sale, provided, (i) Gale
has not otherwise executed such documents within twenty-five (25) days
following Gale’s receipt of the Managing Member’s written notice of its
election to exercise its Drag-Along Rights, and (ii) such documents are in
conformity, in all respects, with the provisions of this Section 9.05.


(c)           In connection with any such Sale
pursuant to which Gale shall be required to participate in accordance with the
Drag-Along Rights as set forth above, the Managing Member shall, promptly after
consummation of such Sale, notify Gale to that effect, and shall promptly (and
in any event within fifteen (15) Business Days following the consummation of
such Sale) cause to be remitted to Gale the proceeds attributable to the sale
of Gale’s Interest.


(d)           Notwithstanding anything in this Section 9.05 to
the contrary, there shall be no liability on the part of Gale to the Managing
Member if any sale of Interest pursuant to this Section 9.05 is not
consummated for whatever reason other than a failure to comply with the
foregoing provisions. It is understood that the Managing Member , in its sole
discretion, shall determine whether to effect a Sale to any third party
pursuant to this Section 9.05.









 



 


9.06.        Override on Permitted Transfers.


 


(a)           It
is expressly understood and agreed that any Transfer permitted pursuant to this
Article IX shall in all instances be prohibited (and, if consummated,
shall be void ab initio) if such Transfer does not comply with all applicable
laws, rules and regulations and other requirements of governmental
authorities, including, without limitation, Executive Order 13224 (September 23,
2001), the rules and regulations of the Office of Foreign Assets Control,
Department of Treasury, and any enabling legislation or other Executive Orders
in respect thereof.


(b)           Each
admitted Member shall be required to make the representations and warranties
set forth in Section 12.01(a) of this Agreement to the other Member(s) and
the Company as of the date of such Member’s admission into the Company. Each
Member shall be deemed to make the representations and warranties set forth in Section 12.01(a)(ix)-(xii)
of this Agreement to the Members and the Company on behalf of any Person that
acquires a beneficial ownership interest in such Member as of the date of such
acquisition.


(c)           Notwithstanding
anything to the contrary contained in this Agreement, no Transfer of all or any
part of any Interest shall be made except in compliance with all applicable
securities laws.


X.            EXCULPATION AND INDEMNIFICATION


 


10.01.      Exculpation.
Notwithstanding any contrary provision of the Delaware Act, no Member (and no
general or limited partner of any Member, shareholder, member or other holder
of an equity interest in such Member or officer, director or employee of any of
the foregoing or any of their Affiliates) shall be liable to the Company or to
any other Member for monetary damages for any losses, claims, damages or liabilities
arising from any act or omission performed or omitted by it arising out of or
in connection with this Agreement or the Company’s business or affairs;
provided, however, such act or omission was taken in good faith, was reasonably
believed to be in the best interests of the Company and was within the scope of
authority granted to such Person and was not attributable in whole or in part
to (a) a breach of this Agreement which has a material adverse effect upon
the value of, or causes material damage to, the Company, (b) a knowing
violation of law which has a material adverse effect upon the value of, or
causes material damage to, the Company, (c) a transaction for which such
Member received a personal benefit in violation or breach of the provisions of
this Agreement, or (d) such Member’s or Person’s fraud, bad faith, willful
misconduct or gross negligence.


10.02.      Indemnification.


 


(a)           The Company shall, to the fullest
extent permitted by applicable law, indemnify, defend and hold harmless each
Member, and each general or limited partner of any Member, each shareholder,
member or other holder of any equity interest in such Member or any officer,
director or employee of any of the foregoing (each an “Indemnified Party”),
against any losses, claims, damages or liabilities to which such Indemnified
Party may become subject in connection with any matter arising out of or
incidental to any act performed or omitted to be performed by any such
Indemnified Party in connection with this Agreement or the Company’s









 



business or affairs,
including any action or omission constituting a breach of any fiduciary duties;
provided, however, that such act or omission (i) was taken
in good faith, was reasonably believed by the applicable Indemnified Party to
be in the best interest of the Company and was within the scope of authority
granted to such Member or applicable Indemnified Party, (ii) was not a
transaction for which the Indemnified Party received a personal benefit in
violation or breach of the provisions of this Agreement, (iii) was not
attributable in whole or in part to such Indemnified Party’s breach of this
Agreement or a knowing violation of law, in either case which has a material
adverse effect upon the value of, or causes material damage to, the Company, or
(iv) in the case of a Member or related Indemnified Party, was not
attributable in whole or in part to such Indemnified Party’s fraud, bad faith,
willful misconduct or gross negligence. If an Indemnified Party becomes
involved in any capacity in any action, proceeding or investigation in
connection with any matter arising out of or in connection with this Agreement
or the Company’s business or affairs, the Company shall reimburse such
Indemnified Party for its reasonable legal and other reasonable out-of-pocket
expenses (including the cost of any investigation and defense preparation) as
they are incurred in connection therewith, provided that such Indemnified Party
shall promptly repay to the Company the amount of any such reimbursed expenses
paid to it if it shall ultimately be determined that such Indemnified Party was
not entitled to be indemnified by the Company in connection with such action,
proceeding or investigation. If for any reason (other than the fraud or gross
negligence, intentional misconduct, breach of this Agreement or a knowing
violation of law by such Indemnified Party or a transaction for which such
Indemnified Party received a personal benefit in violation or breach of the
provisions of this Agreement) the foregoing indemnification is unavailable to
such Indemnified Party, or insufficient to hold it harmless, then the Company
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and such Indemnified Party on the other hand or, if such allocation is
not permitted by applicable law, to reflect not only the relative benefits
referred to above but also any other relevant equitable considerations. Any
indemnity under this Section 10.02(a) shall be paid solely out of and
to the extent of Company assets and shall not be a personal obligation of any
Member and in no event will any Member be required or permitted, without the
consent of the other Members, to contribute additional capital under Article IV
to enable the Company to satisfy any obligation under this Section 10.02.


(b)           Notwithstanding the provisions of Section 3.02(a) hereof,
each Member shall indemnify and hold harmless the Company and the other Member
from and against any and all claims, demands, liabilities, costs, damages,
expenses and causes of action of any nature whatsoever arising out of or
incidental to (i) any act performed by or on behalf of any such Member
(including acts performed as the Managing Member) which is not performed in
good faith or is not reasonably believed by such Member to be in the best
interests of the Company and within the scope of authority conferred upon such
Member under this Agreement, (ii) the fraud, bad faith, intentional or
willful misconduct or gross negligence of such Member, (iii) a breach of
this Agreement or a knowing violation of law by such Member, in either case
which has a material adverse effect upon the value of, or causes material
damage to, the Company or its assets or (iv) any transaction for which
such Member received a personal benefit in violation or breach of the
provisions of this Agreement.









 



(c)           The
provisions of this Section 10.02 shall survive for a period of four (4) years
from the date of dissolution of the Company, provided that if at the end of
such period there are any actions, proceedings or investigations then pending,
an Indemnified Party may so notify the Company and the Members at such time
(which notice shall include a brief description of each such action, proceeding
or investigation and the liabilities asserted therein) and the provisions of
this Section 10.02 shall survive with respect to each such action,
proceeding or investigation set forth in such notice (or any related action,
proceeding or investigation based upon the same or similar claim) until such
date that such action, proceeding or investigation is finally resolved, and the
obligations of the Company under this Section 10.02 shall be satisfied
solely out of Company assets.


(d)           Notwithstanding any other provision
of this Agreement to the contrary, the obligations of the Company or any Member
under this Section 10.02 shall be in addition to any liability which the
Company or such Member may otherwise have and inure to the benefit of such
Member, its Related Persons and their respective members, directors, officers,
employees, agents and Affiliates and any successors, assigns, heirs and
personal representatives of such Persons.


XI.           DISSOLUTION AND TERMINATION


 


11.01       Dissolution. The Company shall be
dissolved and its business wound up upon the earliest to occur of any of the
following events:


(a)           The sale or other disposition of all
the assets of the Company and the receipt of all consideration therefor;


(b)           The determination of the Managing
Member to dissolve the Company in its sole and complete discretion; or


(c)           The resignation, expulsion,
bankruptcy or dissolution of any Member or the occurrence of any other event
that terminates the continued membership of any Member in the Company, unless,
within ninety (90) calendar days after such event, the Managing Member elects
in writing (i) to continue the business of the Company, and (ii) if
any such time there exists only one (1) remaining Member, effective as of
the date of such event, to admit at least one (1) additional Member to the
Company and (iii) if applicable, to appoint a new Managing Member.


Without limiting, but subject to, the other provisions hereof, the
assignment of all or any part of a Member’s Interest permitted hereunder will
not result in the dissolution of the Company. Except as otherwise expressly
provided in this Agreement, each Member agrees that, without the consent of the
Managing Member, no Member may withdraw from or cause a voluntary dissolution
of the Company. In the event any Member withdraws from or causes a voluntary
dissolution of the Company in contravention of this Agreement, such withdrawal
or the causing of a voluntary dissolution shall not affect such Member’s
liability for obligations of the Company.









 



11.02.      Termination. In all cases of
dissolution of the Company, the business of the Company shall be wound up and
the Company terminated as promptly as practicable thereafter, and each of the
following shall be accomplished:


(a)           The Liquidating Member shall cause to
be prepared a statement setting forth the assets and liabilities of the Company
as of the date of dissolution, a copy of which statement shall be furnished to
all of the Members.


(b)           The interests and all other assets of
the Company shall be liquidated by the Liquidating Member as promptly as
possible, but in an orderly and businesslike and commercially reasonable manner
and to the extent applicable, subject to the provisions of a liquidating plan
approved by the Managing Member. The Liquidating Member may distribute the
assets of the Company in kind only with the consent of the all the Members.


(c)           The proceeds of sale and all other
assets of the Company shall be applied and distributed as follows and in the
following order of priority:


(i)            To the payment of (A) the
debts and liabilities of the Company and (B) the expenses of liquidation.


(ii)           To the setting up
of any reserves which the Liquidating Member and the Managing Member shall
determine to be reasonably necessary for contingent, unliquidated or unforeseen
liabilities or obligations of the Company or any Member arising out of or in
connection with the Company. Such reserves may, in the discretion of the
Liquidating Member, be paid over to a national bank or national title company
selected by it and authorized to conduct business as an escrowee to be held by
such bank or title company as escrowee for the purposes of disbursing such
reserves to satisfy the liabilities and obligations described above, and at the
expiration of such period as the Liquidating Member may reasonably deem
advisable, distributing any remaining balance as provided in Section 12.02(c)(iii) hereof;
provided, however, that, to the extent that it shall have been
necessary, by reason of applicable law or regulation, to create any reserves
prior to any and all distributions which would otherwise have been made under Section 11.02(c)(i) above
and, by reason thereof, a distribution under Section 11.02(c)(i) has
not been made, then any balance remaining shall first be distributed pursuant
to Section 11.02(c)(i) above.


(iii)          The balance, if
any, to the Members in accordance with Section 6.04 hereof.


11.03       Liquidating
Member. The Liquidating Member is hereby irrevocably appointed as the true
and lawful attorney in the name, place and stead of each of the Members, such
appointment being coupled with an interest, to make, execute, sign, acknowledge
and file with respect to the Company all papers which shall be necessary or
desirable to effect the dissolution and termination of the Company in
accordance with the provisions of this Article XI. Notwithstanding the
foregoing, each Member, upon the request of the Liquidating Member, shall
promptly execute, acknowledge and deliver all such documents, certificates and
other instruments as the Liquidating Member shall reasonably request to
effectuate the proper 









 



dissolution and termination of the Company, including
the winding up of the business of the Company.


XII.         MISCELLANEOUS


 


12.01.      Covenants, Representations and
Warranties of the Members.


 


(a)           Each Member represents and warrants
to the other Member as follows:


(i)            It is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of formation with all requisite power and authority to enter into
this Agreement and to conduct the business of the Company.


(ii)           This Agreement
constitutes the legal, valid and binding obligation of the Member enforceable
in accordance with its terms, subject to the application of principles of
equity and laws governing insolvency and creditors’ rights generally.


(iii)          No consents or
approvals (which have not been obtained) are required from any governmental
authority for the Member to enter into this Agreement and be admitted to the Company.
All limited liability company, corporate or partnership action on the part of
the Member (and its direct or indirect equity owners) necessary for the
authorization, execution and delivery of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly taken.


(iv)          The execution and
delivery of this Agreement by the Member, and the consummation of the
transactions contemplated hereby, do not conflict with or contravene the
provisions of such Member’s organic documents or any agreement or instrument by
which it or its properties are bound or any law, rule, regulation, order or
decree to which it or its properties are subject.


(v)           The Member has not
retained any broker, finder or other commission or fee agent, and no such
person has acted on its behalf in connection with the acquisition and
assumption of its Interest in the Company or the execution and delivery of this
Agreement.


(vi)          Each Member is
acquiring its Interest in the Company for investment, solely for its own account,
with the intention of holding such Interest for investment and not with a view
to, or for resale in connection with, any distribution or public offering or
resale of any portion of such interest within the meaning of the Securities Act
of 1933 as amended from time to time (the “Securities Act”) or any other
applicable federal or state securities law, rule or regulation (“Securities
Laws”).


(vii)         Each Member
acknowledges that it is aware that its interest in the Company has not been
registered under the Securities Act or under any Securities Laws, or other
Federal or state securities law in reliance upon exemptions contained therein. Each
Member understands and acknowledges that its representations and warranties
contained herein are being relied upon by the Company, the other Member and the
constituent owners of such other Member as the basis for exemption of the
issuance of









 



interest in the
Company from registration requirements of the Securities Act and other
Securities Laws. Each Member acknowledges that the Company will not and has no
obligation to register any Interest in the Company under the Securities Act or
other Securities Laws.


(viii)        Each Member
acknowledges that prior to its execution of this Agreement, it received a copy
of this Agreement and that it examined this document or caused this document to
be examined by its representative or attorney. Each Member does hereby further
acknowledge that it or its representative or attorney is familiar with this
Agreement, and with the business and affairs of the Company, and that except as
otherwise expressly provided in this Agreement, it does not desire any further
information or data relating to the Company or the other Member. Each Member
does hereby acknowledge that it understands that the acquisition of its
Interest in the Company is a speculative investment involving a high degree of
risk and does hereby represent that it has a net worth sufficient to bear the
economic risk of its investment in the Company and to justify its investing in
a highly speculative venture of this type.


(ix)           The Member is in
compliance with Executive Order 13224 (September 23, 2001), the rules and
regulations of the Office of Foreign Assets Control, Department of Treasury,
and any enabling legislation or other Executive Orders in respect thereof.


(x)            At all times,
including after giving effect to any Transfers permitted pursuant to this
Agreement, (a) none of the funds or other assets of the Member constitutes
property of, or are beneficially owned, directly or indirectly, by any Person,
entity or government subject to trade restrictions under U.S. law (including,
but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and
any Executive Orders or regulations promulgated thereunder) (any such Person,
entity or government, an “Embargoed Person”) with the result that the
investment in the Member (whether directly or indirectly), is prohibited by any
applicable law, rule, regulation, order or decree is in violation thereof; (b) no
Embargoed Person has any interest of any nature whatsoever in the Member with
the result that the investment in the Member (whether directly or indirectly),
is prohibited by any applicable law, rule, regulation, order or decree is in
violation thereof; and (c) none of the funds of the Member have been
derived from any unlawful activity with the result that the investment in the
Member (whether directly or indirectly), is prohibited by any applicable law, rule,
regulation, order or decree is in violation thereof.


(xi)           If applicable to
such Member, the Member has implemented a corporate anti-money laundering plan
that is reasonably designed to ensure compliance with applicable foreign and
U.S. anti-money laundering law.


(xii)          The Member is
familiar with the U.S. Government Blacklists maintained by applicable U.S.
Federal agencies and none of its investors, officers or directors are on the
U.S. Government Blacklists.









 



(b)           Subject to the
provisions of Section 3.02(b) hereof, each Member agrees to indemnify
and hold harmless the Company and the other Member and their officers,
directors, shareholders, partners, members, employees, successors and assigns
from and against any and all loss, damage, liability or expense (including
reasonable costs and reasonable attorneys fees) which they may incur by reason
of, or in connection with, any material breach of the foregoing representations
and warranties by such Member and all such representations and warranties shall
survive the execution and delivery of this Agreement and the termination and
dissolution of either of the Members and/or the Company.


12.02.      Further
Assurances. Each Member agrees to execute, acknowledge, deliver, file,
record and publish such further instruments and documents, and do all such
other acts and things as may be required by law, or as may be required to carry
out the intent and purposes of this Agreement.


12.03.      Notices.
All notices of default, demands, requests for or grants of consents or approvals,
which any of the parties to this Agreement may desire or be required to give
hereunder (collectively, “Material Notices”) shall be in writing and
shall be given by (a) personal delivery, (b) facsimile transmission
with proof of receipt and provided such notice is also delivered by method (a) or
(c) or (c) a nationally recognized overnight courier service, fees
prepaid, addressed as follows:


	
  If to the Managing Member,
  to:

  	
  c/o Mack-Cali Realty Corporation

  11 Commerce Drive

  Cranford, New Jersey 07016



  with two (2) separate copies of the

  notice sent to the attention of: 



  Mitchell E. Hersh

  Telecopy: (908) 272-0214

  Telephone: (908) 272-2009



  And



  Roger W. Thomas, Esq. 

  Telecopy: (908) 497-0485

  Telephone: (908) 272-2612

  
	
   

  	
   

  
	
  With a copy (which
  shall not

  constitute notice) to:

  	
  Seyfarth Shaw LLP

  1270 Avenue of the Americas

  25th Floor

  New York, New York 10020

  Telecopy: (212) 218-5527

  Telephone: (212) 218-5620

  Attention: John P. Napoli, Esq.

  



 









 



 


	
  If to Gale, to:

  	
  c/o Gale International, L.L.C.

  100 Campus Drive, Suite 200

  Florham Park, New Jersey 07932

  Telecopy: (973) 245-3600

  Telephone: (973) 301-9500

  Attention: Mr. Stanley C. Gale

  
	
   

  	
   

  
	
  With a copy (which
  shall not

  constitute notice) to:

  	
  Greenberg Traurig, LLP

  200 Park Avenue

  New York, New York 10166

  Attn: Robert J. Ivanhoe, Esq. 

  Telephone: 212-801-9200

  Facsimile No.: 212-801-6400

  



 


Any Member may designate another addressee (and/or change its address)
for Material Notices hereunder by a notice given pursuant to this Section 12.03.
A Notice sent in compliance with the provisions of this Section 12.03
shall be deemed given on the date of receipt if delivered by method (a) or
(b) and on the next Business Day after deposit with the courier if
delivered by method (c). Other than with regard to Material Notices,
communications under this Agreement shall be delivered and exchanged among the
Members in such mutually acceptable form as shall be conducive to the use and
implementation of the materials in question (e.g.,
by electronic mail or telecopier with regard to the exchange of periodic
financial information). Any mutually acceptable method of communication must
provide for confirmation of delivery or refusal thereof.


12.04.      Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed wholly within that state.


12.05.      Captions.
All titles or captions contained in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit, extend, or
describe the scope of this Agreement or the intent of any provision in this
Agreement.


12.06.      Pronouns.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, and neuter, singular and plural, as the identity of the
party or parties may require.


12.07.      Successors
and Assigns. This Agreement shall be binding upon the parties hereto and
their respective executors, administrators, legal representatives, heirs,
successors and permitted assigns, and shall inure to the benefit of the parties
hereto and, except as otherwise expressly provided herein, their respective
executors, administrators, legal representatives, heirs, successors and
permitted assigns.


12.08.      Extension
Not a Waiver. No delay or omission in the exercise of any power, remedy or
right herein provided or otherwise available to a Member or the Company shall
impair or affect the right of such Member or the Company thereafter to exercise
the same. Any extension of time or other indulgence granted to a Member
hereunder shall not otherwise alter or









 



affect any power, remedy or right of any other Member
or of the Company, or the obligations of the Member to whom such extension or
indulgence is granted.


12.09.      Creditors
Not Benefited. Nothing contained in this Agreement is intended or shall be
deemed to benefit any creditor of the Company or any Member, and no creditor of
the Company or any Member shall be entitled to require the Company to solicit
or the Members to make any Capital Contribution to the Company or to enforce
any right which the Company or any Member may have against any Member under
this Agreement or otherwise.


12.10.      Recalculation
of Interest. If any applicable law is ever judicially interpreted so as to
deem any distribution, contribution, payment or other amount received by any
Member or the Company under this Agreement as interest and so as to render any
such amount in excess of the maximum rate or amount of interest permitted by
applicable law, then it is the express intent of the Members and the Company
that all amounts in excess of the highest lawful rate or amount theretofore
collected be credited against any other distributions, contributions, payments
or other amounts to be paid by the recipient of the excess amount or refunded
to the appropriate Person, and the provisions of this Agreement immediately be
deemed reformed, without the necessity of the execution of any new document, so
as to comply with the applicable law, but so as to permit the payment of the
fullest amount otherwise required hereunder. All sums paid or agreed to be paid
that are judicially determined to be interest shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the term
of such obligation so that the rate or amount of interest on account of such
obligation does not exceed the maximum rate or amount of interest permitted
under applicable law.


12.11.      Severability.
In case any one or more of the provisions contained in this Agreement or any
application thereof shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and other application thereof shall not in any way be affected or impaired
thereby.


12.12       Entire
Agreement. This Agreement contains the entire understanding between the
parties relating to the subject matter contained herein, and supersedes all
other prior representations, warranties, agreements, understandings or letters
of intent between or among the parties hereto, including, without limitation,
the Limited Liability Operating Company Agreement of The Gale PFV Investor
Company, L.L.C. dated “August       , 2003.”  Amendments, variations, modifications or
changes herein may be made effective and binding upon the Members only by the
setting forth of same in a document duly executed by each Member, and any
alleged amendment, variation, modification or change herein which is not so
documented shall not be effective as to any Member.


12.13.      Publicity.
The parties agree that no Member or any of its advisors shall issue any press
release or otherwise publicize or disclose the terms of this Agreement without
the consent of the Managing Member, except as such disclosure may be made in
the course of normal reporting practices by any Member or Related Persons to
its Members, shareholders or partners or as otherwise required by law or rule of
any stock exchange (and prior to any such disclosure the disclosing Member will
notify the other Member and provide it with a copy of the proposed disclosure
and an opportunity to comment thereon before the disclosure is made).









 



12.14.      Counterparts.
This Agreement may be executed in multiple counterparts (and by facsimile or
portable document format (PDF) transmission), each of which shall be an
original but all of which together shall constitute but one and the same
agreement.


12.15.      Confidentiality.


 


(a)           Subject to Section 12.13, the
terms of this Agreement and all other business, financial or other information
relating directly to the conduct of the business and affairs of the Company or
the relative or absolute rights or interests of any of the Members that has not
been publicly disclosed pursuant to authorization of the Members (collectively,
the “Confidential Information”) is confidential and proprietary
information of the Company, the disclosure of which would cause irreparable
harm to the Company and the Members. Accordingly, each Member represents that
it has not and agrees that it will not and will direct its members,
shareholders, partners, directors, officers, agents, advisors and Related
Persons not to, disclose to any Person other than its attorneys, accountants,
consultants, advisors and other agents who have a need to know such information
any Confidential Information or confirm any statement made by third Persons
regarding Confidential Information until the Company has publicly disclosed the
Confidential Information pursuant to authorization by the Members and has
notified each Member that it has done so; provided, however, that
any Member (or its Related Persons) may disclose such Confidential Information (i) if
required by law or rule of any stock exchange (it being specifically
understood and agreed that anything set forth in a registration statement or
any other document filed pursuant to law will be deemed required by law, and
provided that before making any disclosure of Confidential Information required
by law or rule of any stock exchange, the disclosing Member will notify
the other Member and provide it with a copy of the proposed disclosure and an
opportunity to comment thereon before the disclosure is made), (ii) in
connection with an actual or proposed Transfer of Interests permitted
hereunder, (iii) reasonably necessary in connection with any transaction
authorized pursuant to the terms of this Agreement, or (iv) if necessary
for it to perform any of its duties or obligations hereunder.


(b)           Subject to the provisions of Section 12.15(a),
each Member agrees not to disclose any Confidential Information to any Person
(other than a Person agreeing in writing to maintain all Confidential
Information in strict confidence or a judge, magistrate or referee in any
action, suit or proceeding relating to or arising out of this Agreement or otherwise),
and to keep confidential all documents (including, without limitation,
responses to discovery requests) containing any Confidential Information. Each
Member hereby consents in advance to any motion for any protective order
brought by any other Member represented as being intended by the movant to
implement the purposes of this Section 12.15 provided that, if a Member
receives a request to disclose any Confidential Information under the terms of
a valid and effective order issued by a court or governmental agency and the
order was not sought by or on behalf of or consented to by such Member, then
such Member may disclose the Confidential Information to the extent required if
the Member as promptly as practicable notifies the other Member of the existence,
terms and circumstances of the order, consults in good faith with the other
Member on the advisability of taking legally available steps to resist or to
narrow the order, and if disclosure of the Confidential Information is
required, exercises its best efforts to obtain a protective order or other
reliable assurance that confidential treatment will be accorded to the portion
of the disclosed Confidential Information that the other Member may designate. The
cost (including, without limitation, reasonable attorneys’ fees and expenses)
of obtaining a protective order 









 



covering Confidential
Information designated by such other Member will be borne by the Company.


(c)           The covenants contained in this Section 12.15
will survive the Transfer of the Interest of any Member and the dissolution of
the Company.


(d)           Notwithstanding anything contained in
this Section 12.15 to the contrary, nothing contained in this Agreement
shall be deemed to prevent any Member from making such disclosures as are
required by applicable law, including, without limitation, federal or state
Securities Laws.


12.16.      Venue.
Any suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with this Agreement or the
transactions contemplated hereby or thereby may be brought in any state or
federal court in The City of New York, Borough of Manhattan, and each Member
hereby consents to the exclusive jurisdiction of any court in the State of New
York (and of the appropriate appellate courts therefrom) in any suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum. Each Member hereby waives the right to commence an action,
suit or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with this Agreement or the transactions
contemplated hereby or thereby in any court outside of The City of New York,
Borough of Manhattan. Process in any suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 12.03 shall be
deemed effective service of process on such party.


12.17.      Waiver
of Jury Trial. EACH OF THE MEMBERS HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION ARISING OUT OF MATTERS RELATED TO THIS AGREEMENT, WHICH WAIVER IS
INFORMED AND VOLUNTARY.


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date set forth in the introductory paragraph hereof.


	
  

  	
   

  	
  THE GALE COMPANY, L.L.C.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mitchell E. Hersh

  
	
   

  	
   

  	
  Name:

  	
  Mitchell E. Hersh

  
	
   

  	
   

  	
  Title:

  	
  Chairman & Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STANLEY C. GALE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Stanley C. Gale