Irving H. Picard v. Saul B. Katz et al

Filing 153

DECLARATION of DANA M. SESHENS in Support re: 143 MOTION in Limine TO BAR USE OF PREJUDICIAL PHRASE., 145 MOTION in Limine TO EXCLUDE STERLING STAMOS DOCUMENTS.. Document filed by Charles 15 Associates, Charles 15 LLC, Charles Sterling LLC, Charles Sterling Sub LLC, College Place Enterprises LLC, Coney Island Baseball Holding Company LLC, Estate of Leonard Schreier, FFB Aviation LLC, FS Company LLC, Fred Wilpon Family Trust, Arthur Friedman, Ruth Friedman, Iris J. Katz and Saul B. Katz Family Foundation, Inc., Judy and Fred Wilpon Family Foundation, Inc., Amy Beth Katz, David Katz, Dayle Katz, Gregory Katz, Howard Katz, Iris Katz, 157 J.E.S. LLC, Air Sterling LLC, BAS Aircraft LLC, Jason Bacher, Bon Mick Family Partners LP, Bon-Mick, Inc., Brooklyn Baseball Company LLC, C.D.S. Corp., Michael Katz, Saul B. Katz, Todd Katz, Katz 2002 Descendants' Trust, Heather Katz Knopf, Natalie Katz O'Brien, Mets II LLC, Mets Limited Partnership, Mets One LLC, Mets Partners, Inc., Minor 1 (REDACTED), Minor 2 (REDACTED), L. Thomas Osterman, Phyllis Rebell Osterman, Realty Associates Madoff II, Red Valley Partners, Robbinsville Park LLC, Ruskin Garden Apartments LLC, Saul B. Katz Family Trust, Michael Schreier, Deyva Schreier Arthur, See Holdco LLC, See Holdings I, See Holdings II, Sterling 10 LLC, Sterling 15C LLC, Sterling 20 LLC, Sterling Acquisitions LLC, Sterling American Advisors II LP, Sterling American Property III LP, Sterling American Property IV LP, Sterling American Property V LP, Sterling Brunswick Corporation, Sterling Brunswick Seven LLC, Sterling Dist Properties LLC, Sterling Equities, Sterling Equities Associates, Sterling Equities Investors, Sterling Heritage LLC, Sterling Internal V LLC, Sterling Jet II Ltd., Sterling Jet Ltd., Sterling Mets Associates, Sterling Mets Associates II, Sterling Mets LP, Sterling Pathogenesis Company, Sterling Third Associates, Sterling Thirty Venture LLC, Sterling Tracing LLC, Sterling Twenty Five LLC, Sterling VC IV LLC, Sterling VC V LLC, Edward M. Tepper, Elise C. Tepper, Jacqueline G. Tepper, Marvin B. Tepper, Valley Harbor Associates, Kimberly Wachtler, Philip Wachtler, Bruce N. Wilpon, Daniel Wilpon, Debra Wilpon, Fred Wilpon, Jeffrey Wilpon, Jessica Wilpon, Judith Wilpon, Richard Wilpon, Scott Wilpon, Valerie Wilpon, Wilpon 2002 Descendants' Trust, Robin Wilpon Wachtler. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Seshens, Dana)

EXHIBIT G

FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STAMOS PARTNERS CAPITAL MANAGEMENT GP, LLC
This First Amended and Restated Limited Liability Company Agreement, dated
January 1, 2004 (the "Agreement"), by and between Dr. Peter S. Stamos (the "Managing
Member"), as a member, Spiro Stamos, the additional member admitted as of the date hereof,
and any other members admitted to the Company (as defined below) pursuant to Section 15 of
this Agreement after the date hereof, but excluding any persons who cease to be Members
pursuant to Section 12 of this Agreement (together with the Managing Member, the "Members")
hereby amends the Limited Liability Company Agreement of the Company (as defined below),
dated as of June 15, 2002, and shall hereafter govern the terms and provisions of this Agreement.
1.
Formation. The Managing Member formed, as of the time of the filing of
a Certificate of Formation with the Secretary of State ofthe State of Delaware, a limited liability
company (the "Company"), pursuant to the provisions of the Delaware Limited Liability
Company Act (6 Del. C. § 18-101, et seq.) as may be amended from time to time (the "Act"),
which shall be governed by, and operated pursuant to, the terms and provisions of this
Agreement (the "Agreement"). The Managing Member shall, on request, provide the other
Members with copies of each such document as filed and recorded.
2.
Name and Address. The name of the Company is "Stamos Partners
Capital Management GP, LLC". The principal office of the Company is located at 575 Fifth
Avenue, 40th Floor, New York, New York 10017, or at such other location as the Managing
Member may designate in the future.
3.
Purpose. The Company has been organized to serve as the general partner
of Stamos Partners Capital Management, L.P. (the "Management Company") and such other
entities as the Managing Member may determine from time to time, and to conduct such other
activities as may be necessary or incidental to the foregoing purposes.
4.
Registered Office; Registered Agent. The registered office of the
Company in the State of Delaware is located at 615 South DuPont Highway, County of Kent,
City ofDover, Delaware 19901. The name and address of the registered agent of the Company
for service of process on the Company in the State of Delaware is National Corporate Research,
Ltd., 615 South DuPont Highway, County of Kent, City of Dover, Delaware 19901.
5.
Management Generally.
Except as otherwise provided herein, the
business and affairs of the Company shall be managed by the Managing Member, who shall have
the exclusive power and authority, on behalf of the Company, to take any action of any kind not
inconsistent with the provisions of this Agreement and to do anything and everything it deems
necessary or appropriate to carry on the business and purposes of the Company. The Managing
Member is, to the extent of his rights and powers set forth in this Agreement, an agent of the
Company for the purpose of the Company's business, and the actions of the Managing Member
taken in accordance with such rights and powers shall bind the Company.

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6.

Members. The names and the addresses of the Members are as follows:
Managing Member
Address
Peter S. Stamos

575 Fifth Avenue
40th Floor
New York, New York 10017

Member
Address
Spiro Stamos

575 Fifth Avenue
40th Floor
New York, New York 10017

7.
Dissolution. The Company shall be dissolved and its affairs shall be
wound up upon the determination of the Managing Member or upon the effective date of a
decree of judicial dissolution under the Act.
8.
Initial Capital Contributions; Percentage Interests.
Simultaneously
herewith, each Member shall make a capital contribution to the Company set forth below hereto.
The "Percentage Interest" of each Member shall be the percentage set forth below.
Member

Percentage Interest

Peter S. Stamos

Capital Contribution

99%

$9,900

1%

$100

Spiro Stamos

9.
Additional Contributions. The Members shall not have any obligation to,
and shall not be permitted to, make additional capital contributions to the Company, unless
determined otherwise by the Managing Member.
10.

Capital Accounts and Tax Matters.

(a)
General. The Members intend that the Company be treated as a
partnership for federal income tax purposes. The Company shall maintain a capital account for
each Member in accordance with Section 704(b) and 704(c) of the Internal Revenue Code of
1986, as amended (the "Code"), and the principles of the Treasury Regulations promulgated
thereunder. Unless otherwise allocated by the Managing Member, the Company's income and
loss shall be allocated to the Members' capital accounts pro rata based on Percentage Interests,
subject to the requirements of the preceding sentence. Allocations for federal income tax
purposes shall be made to the Members in a similar manner.
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(b)
Determination by the Managing Member of Certain Matters. All
matters concerning valuations and the allocation of taxable income, deductions, credits, net
income and net losses of the Members, including taxes thereon and accounting procedures, not
expressly provided for by the terms of this Agreement, shall be determined by the Managing
Member.
(c)
Filing of Tax Returns. The Managing Member or a designated
agent, at the Company's expense, shall prepare and file, or cause the accountants of the Company
to prepare and file, a federal information tax return in compliance with Section 6031 of the Code
and any required state and local income tax and information returns for each tax year of the
Company.
(d)
Reports to Current and Former Members. As soon as practical
after the end of a fiscal year the Company shall prepare and mail, or cause its accountants to
prepare and mail, to the Members, a report setting forth in sufficient detail that information
which will enable the Members to prepare their federal, state and local tax returns in accordance
with the laws, rules and regulations then prevailing.
(e)
Tax Matters Partner. The Managing Member shall be designated
on the Company's annual federal information tax return as the Tax Matters Partner of the
Company for purposes ofSection 623l(a)(7) ofthe Code.
11.
Distributions. Distributions shall be made to the Members at the times, in
a manner and in the aggregate amounts determined by the Managing Member, in accordance
with the Members' Percentage Interests. Notwithstanding the foregoing, distributions made in
connection with a sale of all or substantially all of the Company's assets or a liquidation of the
Company shall be made in accordance with the capital account balances of the Members within
the time period set forth in Treasury Regulations Section 1.704-l(b)(2)(ii)(B)(3).
12.

Withdrawals.

(a)
Without the consent of the Managing Member, no Member may
withdraw capital from the Company.
(b)
Without the consent of the Managing Member, no Member may
voluntarily withdraw from the Company.
(c)
The Managing Member may terminate the interest of any Member
at any time by written notice. Such notice of termination shall have the same effect as a request
for a withdrawal by such Member pursuant to Section 12(b), and the Member shall be treated for
all purposes and in all respects as a Member who has given notice of withdrawal from the
Company.
(d)
As of the effective date of a Member's withdrawal, such Member
shall execute a release in favor of the Company and any "Covered Person" (as defined in Section
17 below), releasing the Company and the Covered Persons from all liabilities to the
withdrawing Member other than the obligation of the Company to make certain payments to the
withdrawing Member upon the terms and conditions set forth herein.
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13.
Payments to Withdrawing Members. A withdrawn Member, or the legal
representatives of a Member that has died or become disabled, shall in all events be entitled to be
paid promptly after the date of such withdrawal, death or disability the balance in his capital
account (less any amount owing by such Member). Unless otherwise consented to by the
Managing Member, a withdrawn Member shall not be entitled to any further allocation of any
other net income in which the Member would otherwise thereafter have shared.
14.
Transfer. A Member may not sell, assign, pledge, transfer or otherwise
dispose of all or any part of his or her interest in the Company without the consent of the
Managing Member.
15.
Admission of Additional or Substitute Members. No substitute or
additional members shall be admitted to the Company without the consent of the Managing
Member.
16.
Liability of the Member. The Members shall not have any liability for the
obligations or liabilities of the Company except to the extent expressly provided in the Act.
17.
Indemnification. To the fullest extent permitted by applicable law, a
"Covered Person" shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed or omitted
by such a Covered Person in a manner reasonably believed to be within the scope of authority
conferred on such Covered Person by this Agreement; provided, however, that any indemnity
under this Section 17 shall be provided out of and to the extent of Company assets only, and no
Covered Person shall have any personal liability on account thereof.
"Covered Person" means the Members, any affiliate of the Members, any
partners, members, legal representatives or agents of the Members, or their respective affiliates,
or any agent of the Company or its affiliates.
18.

Fiscal Year. The fiscal year of the Company shall end on December 31.

19.
Benefits of Agreement. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditor of the Company or of the Members.
20.
Integration. This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection therewith.
21.
Headings. The titles of Sections of this Agreement are for convenience of
reference only and shall not define or limit any of the provisions of this Agreement.
22.
Counterparts. This Agreement may be executed by the parties hereto in
counterparts, each of which shall be considered an original, and all of which shall together
constitute one and the same instrument.

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23.
Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to conflicts of law
principles of that State.
24.
Amendments. The terms and provisions of this Agreement may be
modified or amended at any time and from time to time by the Managing Member.
25.
Definitions. Terms not otherwise defined herein shall have the meanings
given to such terms in the limited partnership agreement of the Management Company.

[The rest of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the undersigned has duly executed this First Amended
and Restated Limited Liability Company Agreement as of the 1st day of January, 2004.

Managing Member

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FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STAMOS PARTNERS CAPITAL MANAGEMENT GP, LLC

MEMBER SIGNATURE PAGE
By its signature below, the undersigned hereby agrees that effective as of the date
of admission to Stamos Partners Capital Management GP, LLC as a Member the undersigned
shall: (i) be bound by each and every term and provision of the First Amended and Restated
Limited Liability Company Agreement of Stamos Partners Capital Management GP, LLC, as the
same may be duly amended from time to time (the "Company Agreement") in accordance with
the
and (ii) become and be a party to the Company Agreement.

Spiro Stamos
Print Name
Accepted and Agreed to
as of this __ day of _ _ _ _ , 20_.
/~)

MANA~JfSJ/M.~EMJ3ER:
I /~ /1- I
///{/I ~·--'PetefS. Stamos

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