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EXHIBIT 10.47
OPERATING AGREEMENT
OF
APTEK MANAGEMENT COMPANY LLC
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS 1
ARTICLE II
FORMATION 7
2.1 ORGANIZATION 7
2.2 AGREEMENT, EFFECT OF INCONSISTENCIES WITH ACT 7
2.3 NAME 8
2.4 EFFECTIVE DATE 8
2.5 TERM 8
2.6 REGISTERED AGENT AND OFFICE 8
2.7 PRINCIPAL OFFICE; OTHER OFFICES 8
2.8 COMPENSATION 9
2.9 FOREIGN QUALIFICATION 9
ARTICLE III
NATURE OF BUSINESS 9
ARTICLE IV
ACCOUNTING AND RECORDS 10
4.1 ACCESS TO INFORMATION 10
4.2 AUDITS 10
4.3 RECORDS TO BE MAINTAINED 10
4.4 REPORTS TO MEMBERS 11
4.5 ADOPTION AND APPROVAL OF ANNUAL BUDGET 11
ARTICLE V
MEMBERSHIP INTERESTS 12
5.1 MEMBERSHIP INTERESTS 12
5.2 INITIAL OWNERSHIP OF MEMBERSHIP INTERESTS 12
ARTICLE VI
RIGHTS AND DUTIES OF MEMBERS 12
6.1 MANAGEMENT RIGHTS 12
6.2 ACTION BY MEMBERS 15
6.3 LIABILITY OF MEMBERS 16
6.4 INDEMNIFICATION 16
6.5 REPRESENTATIONS AND WARRANTIES 16
6.6 CONFLICTS OF INTEREST 17
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ARTICLE VII
MEMBER-MANAGERS 18
7.1 MEMBER-MANAGERS 18
7.2 TERM OF MEMBER-MANAGER 18
7.3 AUTHORITY OF MEMBERS TO BIND THE COMPANY 19
7.4 STANDARD OF CARE. 20
ARTICLE VIII
CONTRIBUTIONS AND CAPITAL ACCOUNTS 20
8.1 INITIAL CONTRIBUTIONS 20
8.2 ADDITIONAL CONTRIBUTIONS 20
8.3 MAINTENANCE OF CAPITAL ACCOUNTS 20
8.4 COMPLIANCE WITH SECTION 704(B) OF THE CODE 21
8.5 ADVANCES 21
ARTICLE IX
DISTRIBUTIONS AND ALLOCATIONS 21
9.1 DISTRIBUTIONS 21
9.2 ALLOCATIONS 22
ARTICLE X
TAXES 26
10.1 ELECTIONS 26
10.2 TAXES OF TAXING JURISDICTIONS 26
10.3 TAX MATTERS MEMBER 27
10.4 ACCRUAL METHOD OF ACCOUNTING 27
10.5 CONSISTENT REPORTING 27
ARTICLE XI
DISPOSITION OF MEMBERSHIP INTERESTS 27
11.1 DISPOSITION 27
11.2 PERMITTED ASSIGNMENTS 28
11.3 COMPLIANCE WITH SECURITIES LAWS 28
11.4 BUY-SELL AGREEMENT 28
11.5 CHANGE IN CONTROL 29
ARTICLE XII
DISSOCIATION OF A MEMBER 31
12.1 DISSOCIATION 31
12.2 PURCHASE OF DISSOCIATED MEMBER'S MEMBERSHIP INTEREST 31
12.3 PURCHASE PRICE OF DISSOCIATED MEMBER'S MEMBERSHIP INTEREST 32
12.4 DAMAGES 32
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ARTICLE XIII
ADMISSION OF ASSIGNEES AND ADDITIONAL MEMBERS;
WITHDRAWAL RIGHTS OF MEMBERS; EXCLUSION OF MEMBERS 33
13.1 ADMISSION OF SUBSTITUTE MEMBERS 33
13.2 ADMISSION OF PERMITTED TRANSFEREES 33
13.3 ADMISSION OF ADDITIONAL MEMBERS 33
13.4 WITHDRAWAL RIGHTS OF MEMBERS 33
13.5 EXPULSION OF MEMBERS 33
ARTICLE XIV
DISSOLUTION AND WINDING UP 34
14.1 DISSOLUTION 34
14.2 EFFECT OF DISSOLUTION 34
14.3 DISTRIBUTION OF ASSETS ON DISSOLUTION 34
14.4 WINDING UP AND CERTIFICATE OF DISSOLUTION 35
ARTICLE XV
AMENDMENT 35
ARTICLE XVI
MISCELLANEOUS PROVISIONS 35
16.1 NOTICE 35
16.2 NO PARTNERSHIP INTENDED FOR NONTAX PURPOSES 36
16.3 RIGHTS OF CREDITORS AND THIRD PARTIES UNDER THIS AGREEMENT 36
16.4 GOVERNING LAW 37
16.5 ARBITRATION 37
16.6 COUNTERPARTS 37
16.7 RULES OF CONSTRUCTION 37
16.8 SPECIFIC PERFORMANCE 38
16.9 KEY MAN INSURANCE 38
16.10 OTHER INSURANCE 38
ARTICLE XVII
NHP INCORPORATED GUARANTY 39
17.1 GUARANTY 39
17.2 NATURE OF GUARANTY 39
17.3 REPRESENTATIONS AND WARRANTIES 39
17.4 OWNERSHIP OF NHP 39
17.5 OFFERINGS ON ANCILLARY SERVICES TO PROPERTY MANAGERS 40
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OPERATING AGREEMENT
OF
APTEK MANAGEMENT COMPANY LLC
This Operating Agreement (this "Agreement") of Aptek Management Company
LLC, a Delaware limited liability Company organized pursuant to the Act (the
"Company"), is entered into and shall be effective as of the Effective Date, by
and among the Company and the Persons executing this Agreement as Members.
ARTICLE I
DEFINITIONS
For purposes of this Agreement, unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
ACT - The Delaware Limited Liability Company Act and any successor statute,
as amended from time to time.
ADDITIONAL MEMBER - A Member other than an Initial Member or a Substitute
Member who has acquired a Membership Interest from the Company.
ADJUSTED CAPITAL ACCOUNT DEFICIT - With respect to any Member, the deficit
balance, if any, in such Member's Capital Account as of the end of the relevant
taxable year, after giving effect to the following adjustments:
(i) such deficit shall be decreased by any amounts which such
Member is deemed to be obligated to restore, pursuant to Regulation Section1.704
-2(g)(1); and
(ii) such deficit shall be increased by the items described in
Regulations SectionSection1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Regulation Section1.704-1(b)(2)(ii)(d) and shall
be interpreted consistently therewith.
ADMISSION AGREEMENT - The Agreement between an Additional Member and the
Company described in Article or a Substitute Member and the Company, pursuant
to which an Additional Member or a Substitute Member becomes a Member of the
Company.
AFFILIATE - An individual or Organization is an affiliate of a Person if
such individual or Organization: (i) directly or indirectly controls or has the
power to control the Person; (ii) is directly or indirectly controlled by the
Person; or (iii) is directly or indirectly controlled by a third party or
parties that also controls or has the power to control the Person. For the
purposes of this definition, the term "control" and its
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variations shall mean 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 or by contract or otherwise.
The parties hereto acknowledge and agree that the Initial Members shall not be
deemed to be Affiliates of one another. Furthermore, NHP Partners, the NHP
Foundation and Harvard Management, and their respective Affiliates, shall be
deemed to be Affiliates of NHP Incorporated.
AGREEMENT - This Operating Agreement including all amendments adopted in
accordance with this Agreement and the Act.
ANNUAL BUDGET - An annual budget for the Company's operations and financing
requirements for each fiscal year of the Company as adopted by the Members in
accordance with Section 4.5.
ASSIGNEE - A Person to whom a Membership Interest has been transferred who
has not been admitted as a Substituted Member.
BANKRUPT MEMBER - Any Member:
(a) that (i) makes a general assignment for the benefit of
creditors, (ii) files a voluntary bankruptcy petition, (iii) becomes the
subject of an order for relief or is declared insolvent in any federal or
state bankruptcy or insolvency proceeding, (iv) files a petition or answer
seeking for such Member a reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any law,
(v) files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed against such Member in a
proceeding of the type described in clauses (i)-(iv), or (vi) seeks,
consents to, or acquiesces in the appointment of a trustee, receiver, or
liquidator of the Member or of all or any substantial part of the Member's
properties, or
(b) with respect to which (i) a proceeding is commenced
seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any law and 90 days have
expired without the proceeding being dismissed, or (ii) without that
Member's consent or acquiescence, a trustee, receiver, or liquidator is
appointed of that Member or of all or any substantial part of its
properties and 90 days have expired without the appointment being vacated
or stayed, or if stayed, 90 days have expired after the date of expiration
of a stay, unless the appointment has been vacated.
BRIDGE BUDGET - Shall have the meaning set forth in Section 4.5.
BUSINESS DAY - Any day other than Saturday, Sunday or any legal holiday
observed in the Commonwealth of Virginia or the State of New York.
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CAPITAL ACCOUNT - The account maintained for a Member or Assignee
determined in accordance with Article VIII.
CERTIFICATE - The Certificate of Formation of the Company as properly
adopted and amended from time to time by the Members and filed with the
Secretary of State of the State of Delaware.
CODE - The Internal Revenue Code of 1986, as amended from time to time.
COMMITMENT - The obligation of a Member or Assignee to make a Contribution
in the future.
COMPANY - Aptek Management Company LLC, a limited liability Company formed
under the laws of the State of Delaware, and any successor Organization.
COMPANY BUSINESS - Shall have the meaning set forth in Section 7.1.
COMPANY LIABILITY - Any enforceable debt or obligation for which the
Company is liable or which is secured by any Company Property.
COMPANY PROPERTY - Any Property owned by the Company.
CONTRIBUTION - Any contribution of Property to the Company made by or on
behalf of a new or existing Member or Assignee as consideration for a Membership
Interest.
DISINTERESTED MEMBER - Any Member other than a Member who has a direct or
indirect interest in any transaction other than as a Member of the Company
generally.
DISTRIBUTION - A transfer of Property to a Member on account of a
Membership Interest as described in Article .
DISPOSITION (DISPOSE) - Any sale, assignment, lease, transfer, conveyance,
exchange, mortgage, pledge, grant, hypothecation, or other transfer, absolute or
as security or encumbrance (including dispositions by operation of law).
DISSOCIATION - Any action which causes a Person to cease to be a Member as
described in Article hereof.
DISSOCIATED MEMBER - A Person who has ceased to be Member as a result of
Dissociation under Article hereof.
EBITDA - shall mean for any period, the excess of (a) the sum of (i) net
income, and (ii) to the extent included in net income, depreciation,
amortization, interest expense, and taxes, over (b) to the extent included in
net income, interest income, it being
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understood and agreed that the components of EBITDA, shall be calculated in
accordance with "GAAP" (as hereinafter defined).
EFFECTIVE DATE - The Effective Date is as of December 17, 1996.
GAAP - Generally accepted accounting principles as in effect in the United
States of America, applied on a consistent basis.
IMMEDIATE FAMILY - A Person's Immediate Family includes the Person's
estate, spouse, children (including natural, adopted and stepchildren), or
grandchildren, or trust exclusively for the benefit of any of the foregoing.
INITIAL CONTRIBUTION - The Contribution agreed to be made by the Initial
Members as described in Article .
INITIAL MEMBER MANAGER - The Member-Manager, whose duties are set forth in
Section 7.1, appointed as of the Effective Date, which shall be PRC.
INITIAL MEMBERS - Those Persons identified on EXHIBIT A, attached hereto
and made a part hereof by this reference, who have initially executed this
Agreement.
LEGAL REQUIREMENTS - Any federal, state, county, local or foreign statute,
law, rule, Regulation, ordinance, code, handbook, written policy, rule of common
law, order, decree, judgment or other legal, judicial, regulatory, governmental
or quasi-governmental requirement.
LIQUIDATING DISTRIBUTION - A Distribution made as consideration for a
Membership Interest, pursuant to Section 14.3.
MAJORITY OF THE DISINTERESTED MEMBERS - The affirmative vote or consent of
Members entitled to vote on, consent to, or approve a particular matter owning
in excess of one-half of the Membership Interests held by Members, other than
Members who have direct or indirect interest in any transaction, other than as a
Member. A Member who has Disposed of that Member's entire Membership Interest
to an Assignee, but has not ceased to be a Member as provided below, shall be
considered a Member for the purpose of determining a Majority of the
Disinterested Members.
MAJORITY OF THE REMAINING MEMBERS - The affirmative vote or consent of
Remaining Members entitled to vote on, consent to, or approve a particular
matter owning in excess of one-half of the Membership Interests held by
Remaining Members. Assignees shall not be considered Members entitled to vote
for the purpose of determining a Majority of the Remaining Members. A Member
who has Disposed of that Member's entire Membership Interest to an Assignee, but
has not ceased to be a Member as provided below, shall be considered a Member
for the purpose of determining a Majority of the Remaining Members.
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MEMBER - An Initial Member, Substitute Member or Additional Member acting
in its capacity as a Member of the Company.
MEMBER-MANAGER - The Member who, at any time, has been elected by the
Members pursuant to Article VII hereof to manage the day-to-day operations of
the Company in accordance with the terms of this Agreement.
MEMBERSHIP INTEREST - The rights of a Member or, in the case of an
Assignee, the rights of the assigning Member, in Distributions (liquidating or
otherwise) and allocations of the Profits, Losses, gains, deductions, and
credits of the Company.
MINIMUM GAIN - Has the meaning set forth in Regulation Section1.704-
2(b)(2), or any corresponding provision of any succeeding Regulation.
MONEY - Cash or other legal tender of the United States, or any obligation
that is immediately reducible to legal tender without delay or discount. Money
shall be considered to have a fair market value equal to its face amount.
NET CASH FLOW - The sum of (A) the gross revenues provided from operations
of the Company (not including accrued but unreceived revenues), including
revenue from the investment of Company cash reserves or deposits and cash
previously set aside as reserves which the Members determine, by Unanimous
Member Vote, are not needed for the operation of the Company's business and are
available for distribution, plus (B) the net proceeds from any Disposition of
Company Property, or any part thereof, or any financing or refinancing of any
indebtedness of the Company, plus (C) all cash Contributions, less (D) the sum
of operating expenses (including, but not limited to, any salaries, other than
the consulting fees payable pursuant to Section 2.8 hereof), capital
expenditures and debt payments, including payments on any Member loans, and on
any other obligations of the Company and any cash set aside as reserves for the
conduct of the Company's business. The items constituting the Net Cash Flow
shall be determined on a cash basis and no deduction therefrom shall be made for
depreciation or amortization or similar non-cash expenditures.
NHP - Shall mean NHP Management Company, a District of Columbia
corporation.
ORGANIZATION - A Person other than a natural person. Organization
includes, without limitation, corporations (both non-Profit and other
corporations), partnerships (both limited and general), joint ventures, limited
liability companies, limited liability partnerships, and unincorporated
associations, but the term does not include joint tenancies and tenancies by the
entirety.
PERMITTED TRANSFEREE - With respect to a Member which is an Organization,
shall mean any Affiliate of such Organization of which such Member owns a
minimum of eighty percent (80%) of such Affiliate's voting stock or other voting
equity interests, and
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with respect to a Member which is an individual, includes such Member's
Immediate Family, and with respect to PRC, shall mean ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇, their respective Immediate Family Members and Affiliates controlled by
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, provided that ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, their
respective Immediate Family Members or Affiliates controlled by ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇ shall at all times continue to own at least 26% of the outstanding
Membership Interests, and provided further that both ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇ remain principal executive officers of PRC and day-to-day operational
control of PRC remains vested in ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ or, in either ▇▇▇▇
▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇ in the event of the death or incapacity of one of them.
PERSON - An individual, trust, estate, or any Organization permitted to be
a Member of a limited liability Company under the laws of the State of Delaware.
PRC - Shall mean Property Resources Corporation, a New York corporation.
PRC BUSINESS - Shall have the meaning set forth in Section 7.1.
PRIME RATE - Shall mean the prime rate of interest published in the "Money
Rates" Section of the WALL STREET JOURNAL as the base rate of interest on
corporate loans posted by the nation's largest banks; which rate shall be
adjusted as and when any changes in the WALL STREET JOURNAL's prime rate occurs,
or if such rate is no longer published, then the prime rate or an equivalent
announced from time to time by the Bank of Boston (or its successors).
PROCEEDING - Any judicial or administrative trial, hearing or other
activity, civil criminal or investigative, the result of which may be that a
court, arbitrator, or governmental agency may enter a judgment, order, decree,
or other determination which, if not appealed and reversed, would be binding
upon the Company subject to the jurisdiction of such court, arbitrator, or
governmental agency.
PROPERTY - Any property, real or personal, tangible or intangible
(including goodwill), including Money and any legal or equitable interest in
such property, but excluding services and promises to perform services in the
future.
REGULATIONS - Except where the context indicates otherwise, the permanent
or temporary Regulations of the Department of the Treasury under the Code as
such Regulations may be lawfully changed from time to time.
REMAINING MEMBERS - With respect to any act, event or occurrence
contemplated hereby, all of the Members of the Company other than the Member(s)
to whom such act, event or occurrence directly relates. For example, in the
event of the Dissociation of a Member or the Disposition of a Membership
Interest, all Members at the time of such Dissociation or Disposition other than
the Dissociated Member or all of the Members other than the Member who proposed
such Disposition, respectively.
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SUBSTITUTE MEMBER - An Assignee who has been admitted to all of the rights
of Membership pursuant to this Agreement.
TAXABLE YEAR - The taxable year of the Company as determined pursuant to
Section 706 of the Code.
TAXING JURISDICTION - Any state, local, or foreign government that collects
tax, interest or penalties, however designated, on any Member's share of the
income or gain attributable to the Company.
TAX MATTERS MEMBER - Shall have the meaning set forth in Section 10.3.
UNANIMOUS MEMBER VOTE - The affirmative vote or consent of all Members
entitled to vote on, consent to, or approve a particular matter owning in excess
of one-half of the Membership Interests. Assignees shall not be considered
Members entitled to vote for the purpose of determining a Unanimous Member Vote.
A Member who has Disposed of all or a portion of that Member's Membership
Interest (as permitted hereunder) to an Assignee, but has not ceased to be a
Member as provided below, shall be considered a Member for the purpose of
determining a Unanimous Member Vote.
ARTICLE II
FORMATION
2.1 ORGANIZATION. The Members hereby organize the Company as a
Delaware limited liability Company pursuant to the provisions of the Act.
2.2 AGREEMENT, EFFECT OF INCONSISTENCIES WITH ACT. For and in
consideration of the mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Members executing this Agreement hereby agree to the terms and
conditions of this Agreement, as it may from time to time be amended according
to its terms. It is the express intention of the Members that this Agreement
and the Non-Compete Agreement of even date herewith, by and between the Initial
Members (the "Non-Compete Agreement"), shall be the sole source of agreement of
the parties regarding the Company, and, except to the extent a provision of this
Agreement expressly incorporates federal income tax rules by reference to
Sections of the Code or Regulations or is expressly prohibited or ineffective
under the Act, this Agreement shall govern, even when inconsistent with, or
different than, the provisions of the Act or any other applicable law or rule.
To the extent any provision of this Agreement is prohibited, ineffective,
invalid, illegal or unenforceable under the Act, or other applicable law or
rule, this Agreement shall be considered amended to the smallest degree possible
in order to make the Agreement effective under the Act or other applicable law
or rule. In the event that either the Act or other applicable law or rule is
subsequently amended or interpreted in such a way to make any provision of this
Agreement that was formerly invalid, illegal or unenforceable valid (or there
shall be added as part of this Agreement a provision as similar as possible to
such invalid, illegal or unenforceable provision), such new or amended
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provision shall be considered to be valid and effective on the date upon which
the prior provision was held to be invalid, illegal or unenforceable. Any of
the remaining provisions shall not in any way be impaired or affected. The
Members hereby agree that each Member shall be entitled to rely on the
provisions of this Agreement, and no Member shall be liable to the Company or to
any Member for any action or refusal to act taken in good faith reliance on the
terms of this Agreement. The Members and the Company hereby agree that the
duties and obligations imposed on the Members of the Company as of the Effective
Date of this Agreement are those set forth in this Agreement and the Non-
Compete Agreement, which agreements supersede and replace all prior or
contemporaneous agreements, commitments and understandings, oral or written,
between the Members and the Company and which are intended to govern the
relationship among the Company and the Members, notwithstanding any provision of
the Act or common law to the contrary.
2.3 NAME. The name of the Company is Aptek Management Company LLC, and
all business of the Company shall be conducted under that name or under any
other name approved by Members holding a majority of the outstanding Membership
Interests, but in any case, only to the extent permitted by applicable law. The
Company shall be permitted to use NHP Incorporated's or PRC's respective names
to describe the Company on the letterhead of the Company in a format reasonably
acceptable to each of the Members. Use of PRC's or NHP Incorporated's
respective names in any other advertisements, promotions, signage or marketing
material shall be subject to each Member's prior written consent. At such time
as an Initial Member ceases to be a Member, such right shall terminate, and the
Company shall promptly cease to use such former Member's name.
2.4 EFFECTIVE DATE. This Agreement shall become effective upon the
Effective Date.
2.5 TERM. The Company shall be dissolved and its affairs wound up in
accordance with the Act and this Agreement on December 31, 2045, unless the term
shall be extended by amendment to this Agreement and the Certificate, or unless
the Company shall be sooner dissolved and its affairs wound up in accordance
with the Act or this Agreement.
2.6 REGISTERED AGENT AND OFFICE. The registered agent for the service
of process and the registered office shall be that Person and location reflected
in the Certificate as filed in the office of the Secretary of State of the State
of Delaware. The Members, by Unanimous Member Vote, may, from time to time,
change the registered agent or office through appropriate filings with the
Secretary of State of the State of Delaware. In the event the registered agent
ceases to act as such for any reason or the registered office shall change, the
Members, by Unanimous Member Vote, shall promptly designate a replacement
registered agent or file a notice of change of address as the case may be. If
the Members, by Unanimous Member Vote, shall fail to designate a replacement
registered agent or change of address of the registered office within twenty
(20) Business Days, any Member may designate a replacement registered agent or
file a notice of change of address.
2.7 PRINCIPAL OFFICE; OTHER OFFICES. The principal office of the
Company shall be at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such
other place(s) as the Member-
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Manager may designate from time to time, which need not be in the State of
Delaware. The Company may have such other offices as the Members, by Unanimous
Member Vote, may determine to be appropriate.
2.8 COMPENSATION. In each fiscal year, including a pro-rated amount
from the Effective Date for the remainder of 1996, PRC shall be paid a
consulting fee of up to $125,000.00 in the manner set forth below; provided,
however, in no event shall the consulting fee be earned until such time as the
Distributions from Net Cash Flow for such year equal $100,000.00 (or pro-rated
amount from the Effective Date for the remainder of 1996), pursuant to Section
9.1(a) excluding all cash Contributions from Net Cash Flow for this purpose. In
exchange for the opportunity to earn such consulting fee, PRC shall arrange for
▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇ ▇▇▇▇▇▇▇ to provide executive, management and
operational oversight to the Company at no additional cost, at such time, and to
the extent that is reasonably necessary or appropriate in order to provide the
Member-Manager with such services in connection with the Member-Manager's
management of the Company. Notwithstanding the foregoing, the consulting fee
shall be paid quarterly, in four installments of $31,250.00, in arrears;
provided, however, that no such quarterly amount shall be paid, if the
cumulative Net Cash Flow Distributions: for the first quarter did not exceed
$25,000.00, for the second quarter did not exceed a cumulative total of
$50,000.00, for the third quarter did not exceed a cumulative total of
$75,000.00, and for the fourth quarter did not exceed a cumulative total of
$100,000.00. Within ninety (90) days after the end of each fiscal year, the
Company shall pay PRC the amount, if any, by which the consulting fee earned for
such year exceeded the quarterly installments paid with respect to such year, or
PRC shall pay to the Company the amount, if any, by which the quarterly
installments paid with respect to the consulting fee for such year exceeded the
consulting fee earned for such year. In the event that PRC is the Member-
Manager, but both ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ are no longer available, the
Company shall continue to pay the consulting fee set forth herein provided that
PRC provides individual(s) to replace ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇ who is/are
reasonably acceptable to NHP.
2.9 FOREIGN QUALIFICATION. Promptly following the Effective Date, the
Member-Manager shall cause the Company to become qualified as a foreign limited
liability Company in the State of New York.
ARTICLE III
NATURE OF BUSINESS
The Company may engage in any lawful business permitted by the Act or the
laws of any jurisdiction in which the Company may do business with respect to
providing property management services and other related services within the
counties set forth in EXHIBIT B hereto for: (i) condominium and cooperative
projects, hospital owned or controlled housing, university housing and other
third-party owned, multifamily residential projects; (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇
properties; and (iii) New York Housing Authority properties. The right to any
broker fees or transfer fees related to the sale, re-sale, leasing or subleasing
of apartments, condominium units, cooperative units or other multifamily units
in properties managed by the Company, or of
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commercial properties in any such projects, which is offered to any Member (or
any Affiliate), shall first be offered to the Company. In the event that the
Company rejects such offer, such offering Member may then accept the offer in
its individual, Non-Member capacity on terms which are not materially more
favorable than those offered to the Company, provided that such offering Member
voted in favor of such offer. The Company shall have the authority to do all
things necessary or convenient to accomplish its purpose and operate its
business as described in this Article III. The Company exists only for the
purpose specified in this Article III, and may not conduct any other business
without a Unanimous Member Vote. Nothing contained herein shall be deemed to
obligate any Member of the Company to violate any Legal Requirement.
ARTICLE IV
ACCOUNTING AND RECORDS
4.1 ACCESS TO INFORMATION. In addition to the other rights
specifically set forth in this Agreement, each Member shall have access to all
records of the Company and to all information to which a Member is entitled to
have access pursuant to the Act.
4.2 AUDITS. The independent public accountant for the Company shall
be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which shall conduct annual audits of the Company's
books, records and financial statements. Additionally, each Member shall have
the right to conduct, or cause to be conducted, from time to time, a
supplemental or additional audit of the books, records and financial statements
of the Company. The Member conducting, or causing to be conducted, such
supplemental audit shall bear the entire expense of the audit.
4.3 RECORDS TO BE MAINTAINED. The Member-Manager shall maintain the
following records at the Company's principal office:
(a) A current list of the full name and last known business
address of each Member, former Member and other holder of a Membership Interest
and the Membership Interest of each such Person;
(b) A copy of the Certificate and all amendments thereto,
together with executed copies of any powers of attorney pursuant to which the
Certificate and/or any amendments thereto have been executed;
(c) Copies of the Company's federal, foreign, state and local
income tax returns or information and reports, if any, for the six (6) most
recent years;
(d) Copies of this Agreement including all amendments hereto;
(e) Any financial statements of the Company for the five (5)
most recent years; and
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(f) Complete and accurate books and records of the Company and
supporting documentation of the transactions with respect to the conduct of the
Company's business, and shall utilize a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP.
4.4 REPORTS TO MEMBERS.
(a) The Member-Manager shall provide to each Member within
twenty (20) days after the end of each fiscal month, copies of the Company's
regularly prepared monthly operating reports, if any, and a statement of all
transactions with Affiliates for such month. The Member-Manager shall provide
consolidated financial statements for each of the three month periods ended
February 28 (or 29), May 31, and August 31, of each year in conformity with
GAAP, as soon as available and in no event later than twenty (20) days after the
end of each three (3) month period. The Member-Manager shall provide to each
Member as soon as available and in any event within sixty (60) days after the
end of each fiscal year, the audited consolidated financial statements of the
Company including a report from such auditor (selected pursuant to Section 4.2)
expressing an opinion on the Company's consolidated financial statements (and as
to fair presentation, such auditor's report shall be unqualified). At such time
as the Company directly or indirectly contributes ten percent (10%) or more of
NHP Incorporated's consolidated EBITDA on an annual basis, then, upon NHP's
request, NHP may require that reports provided for in the second sentence of
this Section 4.4 shall be provided to each Member on a calendar quarter basis,
rather than pursuant to the reporting schedule set forth above, in which event
the Member-Manager shall provide any such reports no later than seven (7) days
after the end of the first, second and third calendar quarters and sixty (60)
days after the end of each calendar year.
(b) The Member-Manager shall provide all Members and Assignees
with those information returns required by the Code and the laws of any state.
4.5 ADOPTION AND APPROVAL OF ANNUAL BUDGET. The Company shall, upon a
Unanimous Member Vote, adopt and approve each annual budget of the Company
(each, an ANNUAL BUDGET). In the event that the Members of the Company have not
adopted and approved an Annual Budget on or before December 31 of the
immediately preceding year, the Member-Manager may unilaterally adopt an Annual
Budget with respect to the immediately following calendar year which provides
for a minimum of a ten percent (10%) increase in Net Cash Flow over the actual
Net Cash Flow (excluding purchase and sale of assets outside the ordinary course
of business, incurrence or repayment of indebtedness, and Contributions) for the
immediately preceding year (the BRIDGE BUDGET) until such time as an Annual
Budget is agreed to by Unanimous Member Vote. In the event that the Company
performed at a Loss for the preceding year, the Bridge Budget shall provide for
a minimum Net Cash Flow of zero without regard to Contributions.
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ARTICLE V
MEMBERSHIP INTERESTS
5.1 MEMBERSHIP INTERESTS.
(a) The Company shall have one class of Membership Interests.
(b) The holders of the Membership Interests (i) shall share in
each item of Company income, gain, Loss, deduction and credit as provided in
Articles VIII and IX, (ii) shall be entitled to quarterly Distributions, (iii)
shall not be subject to any right of redemption by the Company and shall have no
conversion rights and (iv) shall be entitled to one vote per percentage point of
Membership Interest on each matter submitted to a vote or consent of Members.
Each Membership Interest shall be identical in all respects with each other
Membership Interest. The Members excluding those who are Dissociated and those
who are not yet Dissociated Members, but who have received notice that the
procedures set forth in Article 12.2(a) hereof are being exercised, shall be
entitled to vote their Membership Interests on any matter submitted generally to
a vote of all of the Members.
5.2 INITIAL OWNERSHIP OF MEMBERSHIP INTERESTS. The names and addresses
of the Initial Members and their respective percentage ownership of Membership
Interests are as reflected on EXHIBIT A, attached hereto and by this reference
made a part hereof as if set forth fully herein.
ARTICLE VI
RIGHTS AND DUTIES OF MEMBERS
6.1 MANAGEMENT RIGHTS. Except as otherwise provided herein, any action
by the Member-Manager in accordance with the terms hereof shall bind the
Company. Notwithstanding anything herein to the contrary, neither the Company
nor the Member-Manager acting on behalf of the Company may take any of the
following actions without first obtaining a Unanimous Member Vote:
(a) the merger, consolidation, conversion or other structural
reorganization of the Company.
(b) the liquidation, dissolution, reorganization or
recapitalization of the Company.
(c) making, executing, or delivering on behalf of the Company
any assignment for the benefit of creditors or any
guarantee, indemnity bond, or surety bond, or any
equivalent thereof other than endorsements for collection
and indemnity or surety bonds in the ordinary course of
business.
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(d) the adoption or approval of any material change in any
approved Annual Budget.
(e) unless otherwise expressly provided for in the approved
Annual Budget in effect at such time:
(i) enter into or agree to enter into any material
agreement, arrangement or understanding, whether oral or written, with any
Person(s) (including any Member, Member-Manager or Affiliate of the Company)
involving consideration in excess of $50,000.00 individually, or in a series of
related agreements, arrangements or understandings in any calendar year; or
(ii) incur, refinance, replace, extend, amend or modify any
Company Liability or issue or grant any guaranty, endorsement (other than for
collection) or indemnification of any indebtedness or obligation of any Person,
in each case other than in the ordinary course of business and other than an
unsecured working capital line of credit not to exceed $50,000.00; or
(iii) (A) acquire, by any means, any Property or businesses on
behalf of the Company or (B) make or commit to make any capital expenditures, in
each case in excess of the higher of (x) $50,000.00, or (y) 5% of net assets of
the Company, whether in a single transaction or in a series of related
transactions during any calendar year; or
(iv) the Disposition (excluding Dispositions which are
consistent with the Annual Budget or, if a Bridge Budget is then in effect, in a
manner consistent with the most recent Annual Budget approved by Unanimous
Member Vote) of any Company Property, in any single transaction or series of
related transactions, having a value in excess of $10,000.00, or the Disposition
of Company assets having a value in excess of $50,000.00 in the aggregate in any
one (1) calendar year period, other than inventory (if any) in the ordinary
course of business.
(f) except as expressly provided for in this Agreement, (i)
issue, sell or otherwise Dispose of, or (ii) purchase, redeem or otherwise
acquire, or (iii) grant any option or other right (including any preemptive
right) to subscribe for or purchase, or (iv) enter into any agreement for the
issuance (contingent or otherwise) of, or (v) create any call, commitment,
appreciation right, claim or other right of any character relating to, any
Membership Interest (or any right to purchase any Membership Interest) in the
Company.
(g) admit new Members (whether Substitute Members or Additional
Members) and determine, establish or agree as to the amounts and the timing of
their Contributions or otherwise enter into any Admission Agreement other than
pursuant to Section 13.2 hereof.
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(h) enter into any employment, consulting or termination
agreement (oral or written) with any employee or proposed employee of, or
consultant or proposed consultant to, or advisor or proposed advisor (including
any legal counsel, accountants or other advisor) to, the Company, where the
amount of salary or compensation (expressly excluding for such purpose the value
of any benefits payable under any such agreement) exceeds $50,000.00 as to
employees and $25,000.00 as to consultants, each in any calendar year (prorated
from the Effective Date for the remainder of calendar year 1996), or where the
term of such employment or consulting agreements exceed a term of one (1) year,
unless otherwise expressly provided for in the approved Annual Budget in effect
at such time or, if a Bridge Budget is in effect, in a manner consistent with
the prior Annual Budget, and except as provided in Section 2.8. Any and all
such agreements shall be on commercially reasonable terms, which commercial
reasonability shall irrefutably be assumed in any contract approved by Unanimous
Member Vote.
(i) confess a judgment, or settle or compromise any Proceeding
involving a payment by or to the Company in excess of $25,000.00 individually or
in the aggregate in any calendar year.
(j) dispose of or otherwise encumber or permit to exist and
continue a security interest in or lien on all or substantially all of the
Property or businesses of the Company, excluding purchase money liens in the
ordinary course of business.
(k) form any partnership or joint venture with, or make any
investment in any Organization, including the formation of and any investment in
any subsidiary of the Company (whether or not wholly owned by the Company).
(l) file or permit to remain unchallenged, any bankruptcy action
(or other similar action) by or against the Company, or, except in accordance
with Article XIV, cause the voluntary dissolution and winding up of the Company.
(m) establish any bank, trust, securities or other depository,
credit line or safe deposit account on behalf of the Company, other than any
such accounts which are located in the United States or its territories.
(n) make any loan or advance to any Person, including, without
limitation, any Member or Member-Manager of the Company (or any Affiliate of any
Member or Member-Manager, any Affiliate of the Company and any employee of the
Company or of any Member or Member-Manager) other than an advance of reasonable,
actual expenses in the ordinary course of business.
(o) change the fiscal year or change the accounting policies,
practices or procedures of the Company from the historical accounting policies,
practices and procedures of the Company.
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(p) approve any transaction or agreement or arrangement between
the Company and any Member or Affiliate of a Member of the Company, other than
as expressly permitted under the terms of this Agreement.
(q) enter into or agree to enter into any agreement to do any of
the foregoing.
(r) take any other action otherwise expressly requiring a
Unanimous Member Vote under this Agreement.
With respect to (e), (h) and (q) (but, with respect to (q), only to the
extent relating to paragraphs (e) and (h)) above, in the event that the Member-
Manager is unable to gather a sufficient number of Members together to take a
Supermajority Member Vote at a special meeting called pursuant to Section 6.2(b)
within twenty (20) days after any such request, the Member-Manager may proceed
with any transaction which is otherwise in accordance with the terms of this
Agreement provided that the Member-Manager provided the Members with written
notice two (2) times within the first ten (10) business days of such period
(once every five (5) business days), which notice sets forth the nature of the
transaction and the consequences of such Member's failure to respond.
6.2 ACTION BY MEMBERS.
(a) Members may act by either (i) the affirmative vote of
Members present or by proxy at a meeting of Members convened pursuant to the
provisions of this Section 6.2 or (ii) the written consent of the Members, in
each case owning the Membership Interests required to take the subject action.
In the case of any action by written consent, each Member will certify as to the
percentage of Membership Interests owned by such Member at such time. Any
Member may require that any Unanimous Member Vote may be conducted by secret
ballot.
(b) There will be no regular meetings of Members. A special
meeting of Members may be called, and shall be held, at the direction of any
Member. Any such direction will be delivered to each Member and shall include a
description of the matter(s) to be voted upon at such special meeting, as well
as the time of such special meeting (which must be at least seven (7) Business
Days following the date the direction is delivered to any Member), which time
requirement may be waived by a Unanimous Member Vote.
(c) Members may participate in meetings of Members by means of
conference telephone or similar communications equipment which will allow all
Persons participating in the meeting to hear each other. Such participation in
a meeting shall constitute presence in person at such meeting.
(d) Members shall vote according to the Membership Interests
held by such Members that are entitled to vote on the subject matter of the
meeting.
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6.3 LIABILITY OF MEMBERS. No Member shall be liable as a Member for
the liabilities of the Company. The failure of the Company to observe any
formalities or requirements relating to the exercise of its powers or management
of its business or affairs under this Agreement or the Act shall not be grounds
for imposing personal liability on the Members for liabilities of the Company.
6.4 INDEMNIFICATION.
(a) Neither any Member, nor any Member acting as Member-Manager
or any Officer, nor any Affiliate of the foregoing nor any consultant retained
pursuant to Section 2.8 hereof (each, an INDEMNIFIED PARTY), shall be liable to
the Company or any Member for any Loss suffered by the Company or any Member
which arises out of any act or omission of the Indemnified Party taken in
its/her/his official capacity hereunder, including Section 2.8, involving the
exercise of discretion or business judgment, if (i) such act or omission was
committed, or omitted, by the Indemnified Party in good faith and in the
reasonable belief that such act or omission was in the best interests of the
Company and (ii) such act or omission did not constitute or involve any gross
negligence or willful misconduct of or by the Indemnified Party. Each
Indemnified Party shall be indemnified, defended and held harmless by the
Company from and against any and all Losses, judgments, liabilities, amounts and
expenses (including reasonable attorneys' fees and legal costs and disbursements
as well as reasonable amounts paid in settlement of any claims) arising out of
or in connection with any act or omission for which such Indemnified Party would
not be liable to the Company pursuant to the provisions of the immediately
preceding sentence. Notwithstanding anything to the contrary herein, each of
the Members hereby indemnifies the other Members and the Company for any action
or liability arising out of a breach of such Member's representations and
warranties set forth in Section 6.5 hereof.
(b) The Company shall advance, or otherwise pay on a current
basis (to the extent any insurer does not do so) from the Company's cash flow,
all sums, costs, fees and expenses, including reasonable attorneys' fees and
legal expenses, necessary to defend and hold harmless any Indemnified Party
entitled, or potentially entitled, to indemnification pursuant to Section 6.4(a)
above unless or until it is agreed or finally determined that such Indemnified
Party is not entitled to indemnification. Any such advances (whether or not
made under protest or with a reservation of rights) shall be without prejudice
to the rights of the Company to obtain reimbursement of such advances, in whole
or in appropriate part, from any Person agreed or finally determined to be not
entitled to indemnification in whole or in part.
6.5 REPRESENTATIONS AND WARRANTIES. Each Member hereby represents and
warrants to the Company and to each other Member that: (a) it is duly organized,
validly existing, and in good standing under the law of its state of
organization and that it has full organizational power to execute and agree to
this Agreement and to perform its obligations hereunder; (b) the Member is
acquiring its interest in the Company for the Member's own account as an
investment and without an intent to distribute all or any portion of such
interest; (c) the Member acknowledges
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that the Membership Interests have not been registered under the Securities Act
of 1933 or any state securities laws, and may not be resold or transferred by
the Member without appropriate registration or the availability of an exemption
from such requirements; (d) this Agreement has been duly authorized, executed
and delivered by it, is not subject to any further consent, waiver,
authorization, approval or filing requirements, and constitutes a legal, valid
and binding agreement of it, enforceable against it in accordance with its
terms; and (e) any and all statements, representations or warranties regarding
such Member contained in any filing with a government or governmental agency
relating to the Company, which was based on information supplied by such Member,
did not contain any misstatement or omission, which misstatement or omission
made the information materially misleading at the time made.
6.6 CONFLICTS OF INTEREST
(a) Any Affiliate of the Company or any Member, may be employed
or engaged by the Company to render services (including, but not limited to, the
provisions of premises in exchange for rent) to or on behalf of the Company for
compensation; PROVIDED, HOWEVER, that (x) such compensation and services shall
be priced at fair market value, and (y) after full and accurate disclosure of
the interest to all of the Members, the Members, by a Unanimous Member Vote,
authorize the terms of such engagement (unless provided for in the most recently
approved Annual Budget as services to be provided by such Person, or if a Bridge
Budget is then in effect in a manner consistent with the most recent Annual
Budget which was approved by a Unanimous Member Vote). Notwithstanding the
foregoing, the Members acknowledge and agree that the requirements of (x) and
(y) above are not applicable to: (i) the actions contemplated by Sections 2.8
and 7.1 herein; nor (ii) transactions by and between the Company and Aptek
Maintenance Services LLC; and Members further acknowledge and agree that the
requirements of (y) above and Section 6.1(p) are not applicable to: (iii) arm's
-length transactions by and between the Company and PRC's existing (as of the
Effective Date) third-party property management portfolio.
(b) Notwithstanding the foregoing, Members shall account to the
Company and hold as trustee for it any Property, Profit, or benefit derived by
the Member, without the consent of a Majority of the Remaining Members, in the
conduct and winding up of the Company business or from a use or appropriation by
the Member of Company Property including information developed exclusively for
the Company and opportunities expressly offered to the Company.
(c) A Member does not violate a duty or obligation to the
Company merely because the Member's conduct furthers the Member's own interest.
A Member may lend Money to and transact other business with the Company upon
full disclosure to all of the Members and compliance with paragraph (a) above.
The rights and obligations of a Member who lends Money to or transacts business
with the Company are the same as those of a Person who is not a Member, subject
to other applicable law. No transaction with the Company shall be voidable
solely because a Member has a direct or indirect interest in the transaction if
either the transaction is permitted under Section 6.6(a) or
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after full and accurate disclosure; all of the Disinterested Members authorize,
approve, or ratify the transaction by Unanimous Member Vote.
ARTICLE VII
MEMBER-MANAGERS
7.1 MEMBER-MANAGERS. The Member-Manager shall be responsible, at the
expense of the Company, for carrying on the day-to-day business affairs of the
Company which are not otherwise delegated in this Agreement, including, but not
limited to providing accounting and other administrative services to the
Company. In the event that the Company and PRC (or any Affiliates of PRC )
shall share the services of employees, consultants, equipment, other aspects of
professional and administrative services or overhead (as those services are
provided to the Company, the COMPANY SERVICES), the Member-Manager shall use
commercially reasonable efforts to allocate the corresponding costs and expenses
(including an allocation of personnel) devoted to the Company's business (the
COMPANY BUSINESS COSTS) and to PRC's (and its Affiliates') business which is
independent of the Company business (the PRC BUSINESS COSTS). It is understood,
acknowledged and agreed that PRC is responsible for any and all PRC Business
Costs. The Members agree in good faith to determine and agree upon the Company
Business Costs and the PRC Business Costs.
If NHP reasonably concludes that such Company Services can be obtained for
less cost, NHP has the right to cause the Member-Manager to obtain some or all
of the Company Services from an independent source.
7.2 TERM OF MEMBER-MANAGER. No Member-Manager shall have any
contractual right to such position. Each Member-Manager shall serve until the
earliest of:
(a) The Dissociation of such Member-Manager.
(b) The Resignation of such Member-Manager.
(c) The expiration of the initial term on December 31, 1999,
after which time the Members shall elect a Member-Manager by Unanimous Member
Vote for successive terms of two (2) years each; or.
(d) The election to remove upon a Change in Control under
Section 11.5 hereof.
In the event of a vacancy in the position of Member-Manager, the Members,
by Unanimous Member Vote, shall appoint a replacement Member-Manager. Any of
the Members may either succeed as Member-Manager as elected by Unanimous Member
Vote, or the Members may jointly appoint a third-party manager. In the event
that the Members are unable to reach a Unanimous Member Vote in order to appoint
a replacement Member-Manager, the Buy-Sell Agreement may then be triggered by
either Member. In the event of the expiration of the
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current Member-Manager's term, such Member-Manager may be re-elected pursuant to
the terms of this Section 7.2 and shall continue to serve until such a successor
is duly elected.
If at any time the Company experiences any material adverse deviation from
the Annual Budget, the Member-Manager shall promptly notify the Members, in
writing: (i) that such a deviation exists, and as to the extent and cause of
such deviation; and (ii) of the Member-Manager's proposed solution to rectify
such deviation from the Annual Budget and proposed method of avoiding any such
deviation in the future. The Remaining Members shall be afforded an opportunity
to participate in the Member-Manager's refinement, modification (as the
Remaining Members deem necessary or advisable) and implementation of the
solution proposed in (ii) immediately above.
7.3 AUTHORITY OF MEMBERS TO BIND THE COMPANY. Only the Member-Manager
and agents of the Company authorized by the Member-Manager shall have the
authority to bind the Company consistent with the terms of this Agreement. No
Member who is not either a Member-Manager or otherwise expressly authorized by
the Member-Manager as an agent shall take any action to bind the Company, and
each Member shall indemnify the Company for any costs, liabilities, obligations,
or damages incurred by the Company as a result of the unauthorized action of
such Member. Subject to Section 6.1 hereof, the Member-Manager has the power
and authority, on behalf of the Company, to do all things necessary or
convenient to carry out the business and affairs of the Company, including,
without limitation:
(a) Procuring general business liability insurance insuring
against all risks normally insured against by companies of similar size engaged
in similar lines of business;
(b) Arranging for the maintenance of any offices maintained by
the Company according to standards reasonably acceptable within the industry and
for the provision of all necessary or appropriate repairs and replacements;
(c) Arranging for appropriate office record keeping, bookkeeping
and accounting, as herein required and otherwise required by the Act;
(d) Arranging for the billing and collection on behalf of the
Company of all fees, charges or other compensation due to the Company, in
addition to the responsibility to direct, endorse and deposit all checks and
other funds, as well as take such other actions (including the establishment of
the Company's bank account(s), at a federally insured banking institution
located within the United States) regarding the handling of checks and other
funds owed, owned or held by or on behalf of the Company; and
(e) Subject to NHP's prior review and approval, not to be
unreasonably withheld or delayed, preparing, or causing to be prepared, and
filing all material, periodical and other required reports to any governmental
and regulatory agencies, including tax returns, and performing all related
administrative functions.
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7.4 STANDARD OF CARE. The Member-Manager shall discharge its duties to
the Company and the Members in good faith and with that degree of care that an
ordinary prudent individual/organization in a similar position would use under
similar circumstances. In discharging its duties, the Member-Manager shall be
fully protected in relying in good faith upon the records required to be
maintained under Article IV and upon such information, opinions, reports or
statements by any Person as to matters the Member-Manager reasonably believes
are within such other Person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, Net Cash Flow of the Company or any other facts pertinent
to the existence and amount of assets from which Distributions to Members might
properly be paid.
ARTICLE VIII
CONTRIBUTIONS AND CAPITAL ACCOUNTS
8.1 INITIAL CONTRIBUTIONS. Each Initial Member shall make the
Contribution described for that Member on EXHIBIT A at the time and on the terms
specified on EXHIBIT A and shall perform that Member's Commitment. The value of
the Contributions shall be as set forth on EXHIBIT A. No interest shall accrue
on any Contribution and no Member shall have the right to withdraw or be repaid
any Contribution except as provided in this Agreement. Each Additional Member
shall make the Contribution and shall perform the Commitment described in the
Admission Agreement. The value of the Additional Member's Contribution and the
time for making such Contribution shall be set forth in the Admission Agreement.
8.2 ADDITIONAL CONTRIBUTIONS. In addition to the Initial
Contributions, the Members, by Unanimous Member Vote, may determine from time to
time that additional Contributions are needed to enable the Company to conduct
its business. If the Members determine that, in addition to the Initial
Contributions and Commitments, additional Contributions are needed to enable the
Company to conduct its business, the Members may attempt to arrange for the
borrowing of such funds from Members (including Members or Affiliates of
Members) on such terms as may be approved by a Unanimous Member Vote, from an
independent third party lender or lenders, or from additional Contributions of
the Members; PROVIDED, HOWEVER, that it is expressly understood and agreed that
no Member or any Affiliate or Assignee of a Member has, or shall have, any
obligation to lend or contribute to the Company additional funds pursuant to
this Section 8.2.
8.3 MAINTENANCE OF CAPITAL ACCOUNTS. The Company shall establish and
maintain a Capital Account for each Member and Assignee in accordance with the
following provisions:
(a) A Member's Capital Account shall be credited with such
Member's Contributions, the amount of any Company Liabilities assumed by such
Member (or which are secured by Company Property distributed to such Member),
such Member's distributive share of Profit and any item in the nature of income
or gain specially allocated to such Member pursuant to the provisions of Section
9 hereof; and
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(b) A Member's Capital Account shall be debited with the amount
of Money and the fair market value of any Company Property distributed to such
Member, the amount of any liabilities of such Member assumed by the Company (or
which are secured by Property contributed by such Member to the Company), such
Member's distributive share of Loss and any item in the nature of expenses or
Losses specially allocated to such Member pursuant to the provisions of Section
9 hereof.
If any Membership Interest is transferred pursuant to the terms of this
Agreement, the transferee shall succeed to the Capital Account of the transferor
to the extent it is attributable to the transferred Membership Interest. If the
fair market value of Company Property is adjusted pursuant to this Agreement or
as required pursuant to the Regulations, the Capital Account of each Member
shall be adjusted to reflect the aggregate adjustment in the same manner as if
the Company had recognized gain or Loss equal to the amount of such aggregate
adjustment.
8.4 COMPLIANCE WITH SECTION 704(B) OF THE CODE. The provisions of this
Article as they relate to the maintenance of Capital Accounts are intended, and
shall be construed, and, if necessary, modified to cause the allocations of
Profits, Losses, income, gain and credit pursuant to Article to have
substantial economic effect under Regulation 1.704-1(b), in light of the
Distributions made pursuant to Articles and and the Contributions made
pursuant to this Article . Notwithstanding anything herein to the contrary,
this Agreement shall not be construed as creating a deficit restoration
obligation or otherwise personally obligate any Member or Assignee to make a
Contribution in excess of the Initial Contribution and Commitment, if any, of
the Member or Assignee.
8.5 ADVANCES. If any Member shall advance any funds to the Company in
excess of its Commitment as a loan, such loan shall be repaid prior to any
Distributions, and the amount of such advance shall neither increase its Capital
Account nor entitle it to any increase in its share of the distributions of the
Company.
ARTICLE IX
DISTRIBUTIONS AND ALLOCATIONS
9.1 DISTRIBUTIONS. Except as otherwise provided in Section 14.3 hereof
with respect to Distributions to be made upon the dissolution and liquidation of
the Company, all Net Cash Flow for a fiscal year shall be distributed to Members
quarterly, within thirty (30) days after the end of each quarter, as follows:
(a) the first One Hundred Thousand Dollars ($100,000.00) shall
be distributed to Members in proportion to their respective Membership
Interests;
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(b) subject to Section 2.8, all other Net Cash Flow (calculated
after deducting payments made pursuant to Section 2.8) for a fiscal year shall
be distributed to Members in proportion to their respective Membership
Interests.
Notwithstanding anything to the contrary which may be contained herein, it
is the intention of the Members that Distributions shall be limited to sums from
Net Cash Flow derived or earned from the Company's operation, less amounts
retained for working capital and reserves which are consistent with prudent
business practices. In furtherance of the foregoing: no Distributions of cash
shall be made, absent complete satisfaction of outstanding indebtedness of the
Company, without a Unanimous Member Vote, excluding purchase money indebtedness
or indebtedness with respect to capital leases; and no Distributions of cash
shall be made until or unless payables are paid or reduced so as not to exceed
thirty (30) days outstanding, absent providing reasonable reserves for such
payables (in light of accounts receivables) or a Unanimous Member Vote.
9.2 ALLOCATIONS.
(a) PROFIT AND LOSS. "Profit" and "Loss" mean, for each taxable
year of the Company (or other period for which Profit or Loss must be computed),
the Company's taxable income or Loss determined in accordance with Section
703(a) of the Code after deduction for the consulting fees provided for in
Section 2.8, with the following adjustments:
(i) all items of income, gain, Loss or deduction
required to be stated separately pursuant to Section
703(a)(1) of the Code shall be included in computing
Company taxable income or Loss;
(ii) any tax-exempt income of the Company, not otherwise
taken into account in computing the Company's
taxable income, shall be included in computing
Profit or Loss;
(iii) any expenditures of the Company described in Section
705(a)(2)(b) (or treated as such pursuant to
Regulation Section1.704-1(b)(2)(iv)(i)) and not
otherwise
taken into account in computing Profit or Loss,
shall be subtracted from taxable income or Loss; and
(iv) any items which are specially allocated pursuant to
this Section 9 hereof shall not be taken into
account in computing Profit or Loss.
(b) STANDARD ALLOCATION OF PROFIT AND LOSS. Except as otherwise
set forth in this Section 9.2: the Profit and Loss of the Company for each
fiscal year shall be allocated among the Members in a manner such that the
capital accounts of each Member at the end of each such fiscal year would be
equal to the Net Cash Flow that would otherwise be distributed to such Member of
all the assets of the Company were Disposed
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of at book value at the end of such fiscal year and Net Cash Flow were
distributed to the Members in accordance with Section 9.1.
(c) ALLOCATIONS CAUSING NEGATIVE CAPITAL ACCOUNTS; MINIMUM GAIN
RULE AND QUALIFIED INCOME OFFSET.
(i) notwithstanding the provisions of Section 9.2(b):
1) if the allocation of a Loss to a Member for any
Fiscal Year pursuant to Section 9.2(b)(ii) would cause such Member to have an
Adjusted Capital Account deficit or increase such Adjusted Capital Account
deficit as of the end of such fiscal year, then the portion of such Loss that
would have such effect shall instead be specially allocated among and charged to
the capital accounts of the other Members, pro rata, in proportion to their
respective Membership interests, subject to the provisions of this Section
9.2(c); and
2) if, at the end of the fiscal year, any Member has an
Adjusted Capital Account deficit, then (i) items of gross income for such fiscal
year shall be specially allocated to such Member to the extent necessary to
eliminate such deficit, (ii) the Profit or Loss of the Company for such fiscal
year shall be recomputed by eliminating such specially allocated items of gross
income, and (iii) the recomputed Profit or Loss shall be allocated to the
remaining Members as provided in Section 9.2(b) and this Section 9.2(c).
(ii) any special allocations of Profit or gross income
pursuant to this Section 9.2(c) shall be taken into account in computing
subsequent allocations of Profit and Loss so that, to the extent possible, the
aggregate amounts of Profit and Loss allocated to each Member will be equal to
the aggregate amounts that would have been allocated to such Member in the
absence of unexpected increases or decreases in its Adjusted Capital Account.
(d) NONRECOURSE. To the extent that (a) any Member or Members
may bear the burden of an economic Loss corresponding to any Company Loss,
deduction or item in the nature thereof attributable to a Company Liability that
would be considered nonrecourse for purposes of Regulation Section1.1001-2, (b)
any Member makes a loan or Contribution to the Company in order to fund a
Company expense corresponding to any Loss, deduction or item in the nature
thereof, or (c) any Member bears the economic risk of Loss for a Company
Liability by reason of such Member's obligation to make a net payment to a
creditor with respect to such liability or a net contribution to the Company
with respect to such liability, such Loss, deduction or item in the nature
thereof shall be allocated solely to the Member or Members who bear such
economic burden, who make such loan or Contribution, or who make such net
payment or contribution, in the same proportions as such Members bear such
economic burden or make such loan,
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Contribution or net payment. The foregoing provisions are intended to comply
with Regulation Section1.704-2 and shall be interpreted and applied in a manner
consistent with such Regulations.
(e) SPECIAL ALLOCATIONS OF ITEMS IN THE NATURE OF INCOME OR
GAIN.
(i) except as provided in SECTION 9.2(e)(iii) hereof, if
any MEMBER unexpectedly receives any adjustment, allocation or distribution
described in REGULATION Section1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
COMPANY income and gain shall be specially allocated to such Member in an amount
sufficient to eliminate, to the extent required by the REGULATIONs, the ADJUSTED
CAPITAL ACCOUNT deficit of such Member as quickly as possible.
(ii) except as otherwise provided in Section 9.2(e)(iii)
hereof, if any Member has a deficit capital account at the end of any Company
taxable year which is in excess of the amount such Member is deemed to be
obligated to restore pursuant to the penultimate sentence of Regulation
Section1.704-2(g)(1), each such Member shall be specifically allocated items of
Company income and gain in the amount of such excess as quickly as possible.
(iii) notwithstanding any other provision of this Section
9.2, if there is a net decrease in Company minimum gain during any Company
taxable year, each Member who would otherwise have an Adjusted Capital Account
deficit at the end of such year shall be specifically allocated items of Company
income and gain for such year (and, if necessary, subsequent years) in an amount
sufficient to eliminate such Adjusted Capital Account deficit as quickly as
possible. The items to be so allocated shall be determined in accordance with
Regulation Section1.704-1(b)(4)(iv)(e). This Section 9.2(e)(iii) is intended to
comply with the minimum gain charge back requirement in such Section of the
Regulations and shall be interpreted consistently therewith.
(iv) to the extent an adjustment to the adjusted tax basis
of any Company property pursuant to code Section 734(b) or code Section 743(b)
is required, pursuant to Regulation Section1.704-1(b)(2)(iv)(m), to be taken
into account in determining capital accounts, the amount of such adjustment to
the capital accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or Loss (if the adjustment decreases the basis
of the asset) and such gain or Loss shall be specially allocated to the Members
in a manner consistent with the manner in which their capital accounts are
required to be adjusted pursuant to such Section of the Regulation.
(v) Any special allocations of items of income or gain
pursuant to Sections 9.2(e)(i) - (iv) hereof shall be taken into account in
computing subsequent allocations of Profits pursuant to this Section 9.2, so
that the net amount of any items so allocated and the Profits, Losses and all
other items
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allocated to each Member pursuant to this Section 9.2 shall, to the extent
possible, be equal to the net amount that would have been allocated to each such
Person pursuant to the provisions of this Section 9.2 if such special
allocations had not been required.
(f) TAX ALLOCATIONS.
(i) in accordance with code Section 704(c) and the
Regulations thereunder, income, gain, Loss and deduction with respect to any
property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property contributed to the Company for
federal income tax purposes and its initial fair market value.
(ii) if the fair market value of any Company property is
adjusted pursuant to this agreement or required by the Regulations, subsequent
allocations of income, gain, Loss and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its fair market value in the same manner as
under code Section 704(c) and the Regulations thereunder.
(iii) any elections or other decisions relating to such
allocations shall be made by the tax matters Member in any manner that
reasonably reflects the purpose and intention of this agreement. Allocations
pursuant to this Section 9.2(f) are solely for purposes of federal, state and
local taxes and shall not affect, or in any way be taken into account in
computing, any capital account or the share of Profits, Losses, other items or
distributions pursuant to any provision of this agreement.
(g) ALLOCATION UPON TRANSFER.
(i) if any Membership interest is disposed of during any
accounting period in compliance with the provisions of this agreement, Profits,
Losses, each item thereof and all other items attributable to such Membership
interest for such period shall be divided and allocated between the transferor
and the transferee by taking into account their varying interests during the
period in accordance with code Section 706(d), using any conventions permitted
by law and selected by the tax matters Member, as long as the conventions
selected reasonably allocate among the Members the income, gain, and/or Loss of
the Company for such period.
(ii) all distributions on or before the date of such
disposition shall be made to the transferor, and all distributions thereafter
shall be made to the transferee. Solely for purposes of making such allocations
and distributions, the Company shall recognize such disposition not later than
the end of the calendar
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Month during which it is given notice of such disposition, provided that if the
Company does not receive a notice stating the date of the disposition of such
Membership interest and such other information as the Members may require within
30 days after the end of the accounting period during which the disposition
occurs, then all of such items shall be allocated, and all distributions shall
be made to the person who, according to the books and records of the Company, on
the last day of the accounting period during which the disposition occurs, was
the owner of the Membership interest. Neither the Company, the Members nor the
Member-manager shall incur any liability for making allocations and
distributions in accordance with the provisions of this Section 9.2(g), whether
or not the Member-manager or the Company has knowledge of any disposition of any
Membership interest.
ARTICLE X
TAXES
10.1 ELECTIONS. The "Tax Matters Member" (hereinafter defined) may
make any tax elections for the Company allowed under the Code or the tax laws of
any state or other jurisdiction having taxing jurisdiction over the Company. To
the extent any such election would reasonably be expected to result in either
(a) the Company no longer being taxed as a "pass through" entity for U.S.
federal or state tax purposes, or (b) materially and disproportionately
adversely affect the Members, it shall be subject to Unanimous Member Vote;
provided, however, that the Tax Matters Member shall not elect to use the
"remedial method" under Regulation Section 1.704-3(d) or the "traditional method
with curative allocations" under Regulation Section 1.704-3(c) without first
obtaining a Unanimous Member Vote.
10.2 TAXES OF TAXING JURISDICTIONS. To the extent that the laws of any
Taxing Jurisdiction require, each Member and economic interest holder (or such
Members as may be required by the Taxing Jurisdiction) will submit an agreement
indicating that the Member will make timely income tax payments to the Taxing
Jurisdiction and that the Member accepts personal jurisdiction of the Taxing
Jurisdiction with regard to the collection of income taxes attributable to the
Member's income, and interest and penalties assessed on such income. If the
Member fails to provide such agreement, the Company may withhold and pay over to
such Taxing Jurisdiction the amount of tax, penalty and interest determined
under the laws of the Taxing Jurisdiction with respect to such income. Any such
payments with respect to the income of a Member shall be treated as a
Distribution for purposes of Article .
The Member-Manager may, where permitted by the rules of any Taxing
Jurisdiction, file a composite, combined or aggregate tax return reflecting the
income of the Company and pay the tax, interest and penalties of some or all of
the Members on such income to the Taxing Jurisdiction, in which case the Company
shall inform the Members of the amount of such tax, interest and penalties so
paid.
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10.3 TAX MATTERS MEMBER. NHP shall be designated as the "TAX MATTERS
MEMBER" of the Company pursuant to Section 6231(a)(7) of the Code; PROVIDED,
HOWEVER, that if NHP is ineligible to act as tax matters Member, any other
Member may act as the Tax Matters Member of the Company. Any Member designated
as Tax Matters Member shall take such action as may be necessary to cause each
other Member to become a NOTICE MEMBER within the meaning of Section 6223 of the
Code. Any Member who is designated Tax Matter Member may not take any action
contemplated by Sections 6222 through 6232 of the Code without the approval by
Unanimous Member Vote. The Tax Matters Member ("TMP") shall keep all Members
informed of all administrative and judicial proceedings for the adjustment of
Company items at the Company level. The TMP shall file a request for
administrative adjustment on behalf of the Company at the direction of a
majority in interest of the Members (with the substance of the requested
adjustment being determined by such majority in interest of the Members) and at
the Company's expense.
10.4 ACCRUAL METHOD OF ACCOUNTING. The records of the Company shall be
maintained on an accrual method of accounting.
10.5 CONSISTENT REPORTING. Each party hereto agrees to reflect and
report on all tax forms or tax returns to be filed with any federal, state or
local governmental agency or taxing authority, the transactions contemplated and
evidenced by this Agreement in a manner that to the greatest extent possible is
consistent with the form of the transactions as evidenced by this Agreement and
the terminology used in this Agreement.
ARTICLE XI
DISPOSITION OF MEMBERSHIP INTERESTS
11.1 DISPOSITION. No Member or Assignee may Dispose of all or any
portion of the Member's or Assignee's Membership Interest except in strict
conformity with the provisions of this Article XI. A purported Disposition that
is not in conformity with the provisions of this Article XI shall be, and is
declared to be, void AB INITIO and will not entitle the purported transferee to
any rights or interest in the Company including, without limitation, any right
to receive any Distributions. Except as otherwise provided in this Article XI, a
Disposition of an interest in the Company does not entitle the transferee to
become a Member or exercise any rights of a Member. A Disposition that is in
conformity with the provisions of this Article XI will entitle the Assignee to
receive, to the extent assigned, only the Distributions and return of capital,
and to be allocated the net Profits and net Losses, attributable to such
Membership Interest. All costs and expenses incurred in connection with an
attempted or effective Disposition shall be borne by the transferor or the
intended transferor, except as may be otherwise provided for herein.
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11.2 PERMITTED ASSIGNMENTS. A Member may assign its Membership
Interest:
(a) to Permitted Transferees or another Member or an assignee
of an acquiring Member pursuant to Section 11.4 or Section 11.5; or
(b) to a Person or Persons not referenced in Section 11.2(a)
only with the approval of a Majority of the Remaining Members; PROVIDED,
HOWEVER, that no Membership Interest shall be assigned pursuant to this Section
11.2:
(i) if such disposition, alone or when combined with
other transactions, would result in a termination of the
Company within the meaning of Section 708 of the code;
(ii) without an opinion of counsel reasonably
satisfactory to the majority of the remaining Members that
such assignment is subject to an effective registration
under, or exempt from the registration requirements of,
all applicable state and federal securities laws;
(iii) unless and until the Company receives from the
assignee the information and agreements that the majority
of the remaining Members may reasonably require, including
but not limited to any taxpayer identification number and
any agreement that may be required by any taxing
jurisdiction; or
(iv) if such disposition would result in the Company
being subject to the investment Company act of 1940.
11.3 COMPLIANCE WITH SECURITIES LAWS. No Member's Membership Interest
has been registered under the Securities Act of 1933, as amended, or under any
applicable state securities laws. The Company shall have no obligation to
register any Member's Membership Interest under the Securities Act of 1933, as
amended, or under any applicable state securities laws, or to make any exemption
therefrom available to any Member.
11.4 BUY-SELL AGREEMENT.
(a) A Member desiring to withdraw from the Company and Dispose
of all, but not a portion of, its Membership Interests (the WITHDRAWING MEMBER)
may, from and after December 31, 1998, offer the Remaining Members on a pro rata
basis all of its Membership Interests at the price and under the terms and
conditions set forth in a written offering from such Withdrawing Member (the
OFFERING MEMORANDUM). Upon the receipt of an Offering Memorandum, the Remaining
Members shall have the option, but not the obligation, exercisable within thirty
(30) days from the receipt of the Offering Memorandum (the DETERMINATION DATE)
to purchase from the Withdrawing Member all of the Membership Interests owned by
the Withdrawing Member at the price provided for in the Offering Memorandum. In
the event the Remaining Members do not, on or before the Determination Date,
elect to purchase all of the Membership Interests held by the
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Withdrawing Member at the price provided for in the Offering Memorandum, the
Withdrawing Member shall have an identical option to purchase such Remaining
Members' Membership Interests, under the same terms and conditions and at the
same price per Interest, but exercisable within thirty (30) days of the
Determination Date. Neither Member may initiate the Buy-Sell provision more
than once in any six-month period.
(b) The closing of the sale of Membership Interests pursuant to
this Section 11.4 shall be held at the office of the attorney for the selling
Member on a date and at a time to be mutually agreed upon by the Members, but no
later than sixty (60) days after the election to purchase by the acquiring
party. Except as specified in paragraph (d) below, payment of the purchase
price for the Membership Interest shall be made by wire transfer of immediately
available funds or by certified check. Each Member shall bear its own costs
associated with the Buy-Sell Agreement.
(c) Upon the decision of the Withdrawing Party to exercise this
Buy-Sell Agreement, each Member covenants and agrees that it shall disclose any
and all discussions or negotiations which have taken place within the ninety
(90) day period preceding the exercise of the Buy-Sell Agreement with third
parties, the consummation, conclusion, completion or enactment of which could
have a material impact on the Company.
(d) In the event that PRC purchases NHP's Membership Interests
in the Company pursuant to the Buy-Sell Agreement, NHP agrees that NHP shall,
upon PRC's written request allow up to seventy percent (70%) of the purchase
price for such Membership Interests to be paid by a promissory note made by PRC
on the following terms and conditions: over a five (5) year period at a
variable interest rate which is equal to Prime Rate plus one percent (1%) per
annum for the first year during which such financing is outstanding (a LOAN
YEAR); Prime Rate plus two percent (2%) per annum for the second Loan Year;
Prime Rate plus three percent (3%) per annum for the third Loan Year; Prime Rate
plus four percent (4%) for the fourth Loan Year, and Prime Rate plus five
percent (5%) for the fifth Loan Year. Such loan shall be repaid with monthly
installments of interest only for the first Loan Year, and, thereafter with
respect to each Loan Year, with monthly installments of interest plus principal
amortized on the basis of a fifteen year schedule, commencing on the first day
of the second Loan Year and secured by a first-priority, perfected lien on all
PRC (and those of its Affiliates and Permitted Transferees) Membership Interests
in favor of NHP. The aforesaid loan shall be made on the basis of loan
documents prepared by NHP which are reasonable and customary for similar
transactions (including, without limitation, legal opinions).
11.5 CHANGE IN CONTROL.
(a) In the event of a change in control of NHP Incorporated, as
defined in (c) below, PRC may exercise the Buy-Sell Agreement provided for
herein, provided that PRC covenants, acknowledges and agrees that PRC shall not
exercise such Buy-Sell
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Agreement prior to the date which is nine (9) months after the consummation of
such change in control of NHP Incorporated.
(b) In the event of a change in control of PRC, as defined in
(d) below, NHP may replace PRC as the Member-Manager, either by then becoming
the Member-Manager or by appointing a third-party as Member-Manager. Upon any
such action based solely upon the death or incapacity of both ▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇, PRC and its Permitted Transferees shall have the right, within six
(6) months, to require the Company to repurchase its interest in the Company at
a price equal to the lesser of: (i) one-half of the proceeds of the key man
insurance maintained pursuant to Section 16.9 which are actually received by the
Company; or (ii) fair market value of such Membership Interests, as determined
pursuant to Section 12.3.
(c) With respect to NHP Incorporated, a "change in control"
shall mean any of the following:
(i) NHP Incorporated ceases to be the beneficial owner
(as defined in rule 13d-3 promulgated under the securities exchange act of 1934,
as amended (the "sea")) of 100% percent of the equity interest in NHP;
(ii) any person, other than demeter holdings corporation,
becomes the beneficial owner of more than 40% of the common stock of NHP
incorporated.
(iii) the disposition of all or substantially all of the
assets of NHP incorporated other than to an affiliate.
(iv) the first day after the effective date on which a
majority of the board of directors of NHP incorporated are not persons nominated
by the preceding board of directors.
(d) With respect to PRC, a "change in control" shall mean any
of the following:
(i) ▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇ ▇▇▇▇▇▇▇, their respective
immediate families or controlled affiliates cease to own at least fifty-one
percent (51%) of the beneficial interests or voting rights or voting stock or
voting equity interest in PRC; or
(ii) ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ do not both continue to
serve as the principal executive officers of PRC and in day to day operational
control of PRC, or, in the event of the death or incapacity of either ▇▇▇▇▇
▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ (whoever is the survivor)
does not continue to serve as a principal executive officer of PRC and in day to
day operational control of PRC.
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ARTICLE XII
DISSOCIATION OF A MEMBER
12.1 DISSOCIATION. A Person shall cease to be a Member upon the
happening of any of the following events:
(a) the Member's becoming a Bankrupt Member and, in the case of
NHP, the occurrence of any event with respect to NHP Incorporated which would
cause NHP Incorporated to be a Bankrupt Member were it a Member;
(b) in the case of a Member who is a natural person, the death
of the Member or the entry of an order by a court of competent jurisdiction
adjudicating the Member incompetent to manage the Member's estate;
(c) in the case of a Member who is acting as a Member by virtue
of being a trustee of a trust, the termination of the trust (but not merely the
substitution of a new trustee);
(d) in the case of a Member that is an Organization other than
a corporation, the dissolution and commencement of winding up of the
Organization;
(e) in the case of a Member that is a corporation, the filing
of a certificate of dissolution, or its equivalent, for the corporation or the
revocation of its charter; or
(f) in the case of an estate, the distribution by the fiduciary
of the estate's entire interest in the Company.
12.2 PURCHASE OF DISSOCIATED MEMBER'S MEMBERSHIP INTEREST. Upon the
Dissociation of a Member, if the Majority of the Remaining Members elect to
continue the business of the Company, a Majority of the Remaining Members shall,
subject to the provisions of the Act, elect one of the two following provisions:
(a) The Dissociated Member's Membership Interest shall be
purchased by the Company for a purchase price equal to the aggregate fair market
value of the Member's Membership Interest determined according to the provisions
of Section 12.3 hereof. The purchase price of such interest shall be paid by
the Company to the Member (or such Member's estate) in cash within 60 days of
determination of the aggregate fair market value or, at the Company's option,
said debt may be evidenced by a promissory note bearing interest at the Prime
Rate with interest payable quarterly, and the principal of which shall be due
and payable upon the earlier of (i) expiration of five years or (ii) the sale or
other Disposition of all or substantially all of the Company Property; or
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(b) The Dissociated Member, or a Permitted Transferee of the
Dissociated Member's Interest, shall continue to hold the Dissociated Member's
Membership Interest as a Member.
12.3 PURCHASE PRICE OF DISSOCIATED MEMBER'S MEMBERSHIP INTEREST. The
fair market value of a Member's Interest to be purchased by the Company pursuant
to Section 12.2(a) shall be determined by agreement between the Dissociated
Member (or the Assignee of the Dissociated Member's Membership Interest, as the
case may be) and the Remaining Members of the Company, which agreement is
subject to approval by a Majority of the Remaining Members of the Company. For
this purpose, the fair market value of the Dissociated Member's Membership
Interest shall be computed as the amount which could reasonably be expected to
be realized by such Member upon the sale of all of the Company Property in the
ordinary course of business at the time of Dissociation. If the Dissociated
Member (or the Assignee of the Dissociated Member's Membership Interest, as the
case may be) and the Remaining Members of the Company cannot agree upon the fair
market value of such Membership Interest within 30 days, the fair market value
thereof shall be determined by appraisal. The Remaining Members of the Company
and the Dissociated Member (or the Assignee of the Dissociated Member's
Membership Interest, as the case may be) shall jointly select a certified
appraiser (and, in the event that the Remaining Members of the Company and the
Dissociated Member cannot agree upon an appraiser, then the appraiser shall be
selected by the Company's (in the event PRC (or its Affiliates) is the
Dissociated Member) or the Remaining Members' (in the event NHP (or its
Affiliates) is the Dissociated Member) and the Dissociated Member's respective
certified public accounting firms), which appraiser shall determine the value
of the Dissociated Membership Interest. The purchase price for such Dissociated
Member's Membership Interest shall be equal to the value as determined by such
appraiser (the APPRAISED VALUE) unless such Appraised Value is higher than the
purchase price as determined by the Dissociated Member (in which event the
Dissociated Member's purchase price shall apply), or lower than the Company's
purchase price as determined by the Remaining Members of the Company (in which
event the Company's purchase price shall apply). The purchase price for such
Dissociated Member's Membership Interest, as determined by the preceding
sentence, shall be final and binding and may be enforced by legal proceedings.
The compensation of the appraiser shall be borne equally by the Dissociated
Member (or the Assignee of the Dissociated Member's Membership Interest, as the
case may be) and the Company.
12.4 DAMAGES. The provisions set forth herein shall not affect any
claim the Company may have against the Dissociated Member. The Company shall
have the right to offset any payments due under this Article by any costs, fees
and damages that the Company may incur in connection with any such claim.
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ARTICLE XIII
ADMISSION OF ASSIGNEES AND ADDITIONAL MEMBERS; WITHDRAWAL
RIGHTS OF MEMBERS; EXCLUSION OF MEMBERS
13.1 ADMISSION OF SUBSTITUTE MEMBERS. An Assignee of a Membership
Interest shall be admitted as a Substitute Member, to all the rights of the
Member who initially assigned the Membership Interest, only with the approval,
which may be withheld in their sole and absolute discretion, of a Majority of
the Remaining Members. If so admitted, the Substitute Member shall have all the
rights and powers and be subject to all the restrictions and liabilities of the
Member originally holding the Membership Interest. The admission of a
Substitute Member, without more, shall not release the Member originally holding
the Membership Interest from any liability to the Company that may have existed
prior to the approval.
13.2 ADMISSION OF PERMITTED TRANSFEREES. Notwithstanding Section 13.1
hereof, the Assignee of the Membership Interest of any Member shall be admitted
as a Substitute Member without the consent of the Remaining Members if the
Transferee is a Permitted Transferee and after the execution of an Admission
Agreement in which such Assignee agrees to be bound by all of the terms and
conditions of this Agreement.
13.3 ADMISSION OF ADDITIONAL MEMBERS. Additional Members may be
admitted to the Company only upon the prior authorization of the Members
pursuant to a Unanimous Member Vote and, after execution of an Admission
Agreement, in which such Assignee agrees to be bound by all of the terms and
conditions of this Agreement.
13.4 WITHDRAWAL RIGHTS OF MEMBERS. No Member shall have the right to
withdraw or resign as a Member of the Company except (i) in connection with such
Member's Disposition of all, but not less than all, of its Membership Interests
in connection with Section 11.4 and Section 11.5 (as such Section incorporates
Section 11.4) or (ii) with the express prior written consent of each of the
Remaining Members, which consent may be granted or withheld in the sole and
absolute discretion of each such Remaining Member.
Notwithstanding anything to the contrary herein, for ninety (90)
days commencing the earlier of January 1, 1998 or the preparation of and
agreement by Unanimous Member Vote on the Annual Budget for 1998, if the Annual
Budget for 1998 does not reflect a positive Net Cash Flow, then each of the
Members shall have the right to terminate their respective participation in the
Company, in which event Article XIV shall apply.
13.5 EXPULSION OF MEMBERS. No Member shall have the right to remove or
otherwise cause the expulsion from the Company of any other Member.
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ARTICLE XIV
DISSOLUTION AND WINDING UP
14.1 DISSOLUTION. The Company shall be dissolved and its affairs wound
up, upon the first to occur of the following events:
(a) the expiration of the Term;
(b) the unanimous written consent of all of the Members;
(c) the Dissociation of any Member, unless the business of the
Company is continued with the consent of a Majority of the Remaining Members;
(d) upon written notice from a Member delivered during the
ninety (90) days commencing the earlier of (i) January 1, 1998 or (ii) the
preparation of and agreement on an Annual Budget for 1998, if the Annual Budget
for 1998 does not reflect a positive Net Cash Flow; or
(e) upon a decree of judicial dissolution entered pursuant to
Section 18-802 of the Act.
14.2 EFFECT OF DISSOLUTION. Upon dissolution, the Company shall cease
carrying on, as distinguished from the winding up of, the Company business, but
the Company is not terminated, and shall continue until the winding up of the
affairs of the Company is completed and the certificate of cancellation has
been issued by the Secretary of State of the State of Delaware.
14.3 DISTRIBUTION OF ASSETS ON DISSOLUTION. Upon the winding up of the
Company, the Company Property shall be distributed:
(a) first, to creditors, including Members who are creditors,
to the extent permitted by law, in satisfaction of Company Liabilities;
(b) second, to the setting up of any reserves which the
Members, by Unanimous Member Vote, may deem necessary or appropriate for any
anticipated obligations or contingencies of the Company arising out of or in
connection with the operation or the business of the Company. Such reserves may
be paid over by the Members to an escrow agent or trustee selected by the
Members to be disbursed by such escrow agent or trustee in payment of any of the
aforementioned obligations or contingencies and, if any balance remains at the
expiration of such period as the Members shall deem advisable, shall be
distributed by such escrow agent or trustee in the manner hereinafter provided;
and
(c) thereafter, to the Members in accordance with their
Membership Interests.
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Liquidation proceeds shall be paid as soon as practicable following liquidation,
and in any event, within 90 days after the date of liquidation. Such
Distributions shall be in Money and/or Property (which shall be distributed
proportionately), except as determined by Unanimous Member Vote.
14.4 WINDING UP AND CERTIFICATE OF DISSOLUTION. The winding up of the
Company shall be completed when all debts, liabilities, and obligations of the
Company have been paid and discharged or reasonably adequate provision therefor
has been made, and all of the remaining Company Property has been distributed to
the Members. Upon the completion of winding up of the Company, a certificate of
cancellation shall be delivered for filing to the Secretary of State of the
State of Delaware. The certificate of cancellation shall set forth the
information required by the Act.
ARTICLE XV
AMENDMENT
This Agreement may be amended or modified from time to time only by a
written instrument executed by each of the Members.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
16.1 NOTICE. All notices and other communications hereunder shall be in
writing (including telex or similar writing) and shall be deemed given (a) when
delivered personally to the recipient, (b) when sent to the recipient by
telecopy (with receipt electronically confirmed by sender's machine) if prior to
6 p.m. (Eastern Time) on a Business Day, otherwise on the next Business Day, or
(c) one (1) Business Day after the date sent to the recipient by reputable
express courier service (charges prepaid) to the parties at the following
addresses or telecopier numbers (or at such other address, or telecopy number
for a party as shall be specified by like notice):
(a) if to PRC, to:
Property Resources Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to NHP, to:
NHP Incorporated
Fairfax Square
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Executive Vice
President
and a copy to ▇▇▇▇ ▇▇▇▇▇▇, Esquire, General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & Berlin, Chartered
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16.2 NO PARTNERSHIP INTENDED FOR NONTAX PURPOSES. The Members have
formed the Company under the Act, and expressly do not intend hereby to form a
partnership under either the Delaware Uniform Partnership Act nor the Delaware
Revised Uniform Limited Partnership Act. The Members do not intend to be
partners one to another, or partners as to any third party. To the extent any
Member, by word or action, represents to another Person that any other Member is
a partner or that the Company is a partnership, the Member making such wrongful
representation shall be liable to any other Member who incurs personal liability
by reason of such wrongful representation.
16.3 RIGHTS OF CREDITORS AND THIRD PARTIES UNDER THIS AGREEMENT. This
Agreement is entered into among the Company and the Members for the exclusive
benefit of the Company, its Members, and their permitted successors and assigns.
This Agreement is expressly not intended for the benefit of any creditor of the
Company or any other Person other than the Indemnified Parties as set forth in
Section 6.4 hereof. Except and only to the extent provided by applicable
statute or Section 6.4, no such creditor or third party shall have any rights
under this Agreement, Admission Agreement or any agreement between the Company
and any Member with respect to any Contribution or otherwise.
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16.4 GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE,
INTERPRETATION, OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION.
16.5 ARBITRATION. Except to the extent this Agreement provides
otherwise, any dispute arising under this Agreement shall be resolved by
arbitration as hereinafter provided. The party desiring arbitration shall give
written notice to that effect to the other party and to such party's counsel, as
provided for in Section 16.1 hereof. The party initiating the arbitration shall
send a copy of the notice initiating the arbitration to the American Arbitration
Association (or its successor) and shall request that the American Arbitration
Association select within 10 days thereafter an individual who meets the
following criteria to act as the arbitrator. The arbitrator must be (i)
"independent," I.E., not having at that time or at any time within the
immediately preceding five (5) years a substantial relationship with either
party to the arbitration, any Affiliate of either such party, or any officer or
director of any such party or Affiliate; (ii) an attorney having at least ten
(10) years experience, and (iii) knowledgeable in the areas of multi-family
residential real estate ownership, management and finance. No party to the
arbitration shall have any right to object to the individual named as the
arbitrator except upon the ground that the named individual does not meet the
aforesaid criteria. If more than one arbitration is conducted pursuant to this
Agreement, the parties agree to use the same arbitrator, subject to his
availability. The arbitration shall be conducted in the City of New York and,
to the extent consistent with this Paragraph, in accordance with the expedited
procedures set forth in and otherwise in accordance with the then Commercial
Arbitration Rules of the American Arbitration Association (or any organization
successor thereto). The arbitrator shall be instructed to proceed with all
reasonable diligence to resolve the dispute by no later than 30 days after the
date on which the American Arbitration Association received the request to
initiate the arbitration, to render his decision in writing and to deliver
counterpart copies thereof to each of the parties. The arbitrator may issue a
default award against a party that fails to appear at any meeting or hearing
scheduled by the arbitrator or which attempts to delay the arbitration. Such
decision shall be binding, final and conclusive on the parties. Judgment may be
had on the decision so rendered in any court of competent jurisdiction, federal
or state, and may be enforced in accordance with the laws of the State of
Delaware. The fees of the arbitrator, the fees of expenses of respective
counsel engaged by the parties, the fees and expenses of expert witnesses and
other witnesses called by the parties and the cost of transcripts shall be paid
by the party against which the dispute is resolved, unless otherwise specified
by the arbitrator.
16.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16.7 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(a) a term has the meaning assigned to it by this Agreement; (b) an accounting
term not otherwise defined has the meaning assigned to it in accordance with
GAAP; (c) "or" is not exclusive; and (d) words in the
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masculine, feminine or neuter gender, and the singular or plural, shall be
deemed to include the others whenever and wherever the context so requires. Any
references to any statute or law will also refer to all rules and Regulations
promulgated thereunder, unless the context requires otherwise. The language
used in this Agreement shall be deemed to be the language chosen by the parties
to express their mutual intent, and no rule of strict construction shall be
applied against any party.
16.8 SPECIFIC PERFORMANCE. Without limiting or waiving in any respect
any rights or remedies of the parties hereto under this Agreement now or
hereafter existing at law or in equity or by statute, each of the parties hereto
agrees that damages for breach are an inadequate remedy for Loss suffered by
reason of breach hereof and that the parties hereto shall be entitled to seek
specific performance, or injunctive relief, as applicable of or concerning the
obligations to be performed by the others in accordance with the provisions of
this Agreement.
16.9 KEY MAN INSURANCE. Aptek Maintenance Services LLC (MAINTENANCE)
is required to purchase and maintain on the Company's and Maintenance's behalf
key man insurance with respect to each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ in the
amount of Two Million Dollars ($2,000,000.00) per person for a minimum, initial
five (5) year term, subject to renewal after such initial term and of which
policy the Company and Maintenance shall be equal, joint beneficiaries and the
cost of which shall be shared equally between the Company and Maintenance. If
one or both of the Members are no longer Members of Maintenance, then the
Company shall have the obligation to procure and maintain on the Company's
behalf key man insurance with respect to each ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ in the
amount of One Million Dollars ($1,000,000.00) per person for a minimum, initial
five (5) year term, subject to an obligation to seek renewal after such initial
term.
16.10 OTHER INSURANCE. The Company, shall purchase from and maintain
with an insurer admitted to do business in the jurisdiction(s) in which the
Company operates, such insurance as will protect the Company and its Members
from all claims, subject to applicable deductibles and policy terms, including,
but not limited to, those that may arise out of or result from operations of the
Company and its employees or operations for which the Company may be legally
liable. All insurance coverage shall be written with an insurer having an AM
Best Rating of A- VII or better and at a minimum shall include:
1. Commercial General Liability - $1,000,000 combined single limit for
bodily injury, property damage and personal injury including contractual
liability, products, completed operations and fire damage legal liability.
2. Workers' compensation for statutory limits and Employers' Liability
for the following limits:
$100,000 each accident
$500,000 disease - policy limit
$100,000 disease - each employee
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3. Automobile Liability - $1,000,000 combined single limit for bodily
injury and property damage.
4. Excess Liability - $10,000,000 combined single limit above items 1,
2, and 3.
5. Comprehensive crime coverage including employee dishonesty, forgery
for $1,000,000 each occurrence.
6. All-Risks replacement cost coverage written on an agreed amount
basis to protect the physical assets of the Company.
7. Property Management errors and omissions coverage for $3,000,000 per
occurrence.
Insurance coverage set forth in paragraphs 5 and 6 above may be written with a
deductible not to exceed $15,000 and $50,000 retention for item 7.
Notwithstanding anything to the contrary above, insurance coverage amounts may
be increased in a commercially reasonable manner at the request of either
Member.
ARTICLE XVII
NHP INCORPORATED GUARANTY
17.1 GUARANTY. NHP Incorporated, a Delaware corporation (GUARANTOR)
hereby irrevocably and unconditionally guarantees the due and prompt payment of
all obligations, covenants and agreements to be paid or performed by NHP
hereunder and the obligations under Sections 2.3, 8.1, 8.2, 10.5, the obligation
to make any payment if NHP elects to purchase the Membership Interests pursuant
to 11.4(b), and make disclosures under 11.4(c) (the OBLIGATIONS).
17.2 NATURE OF GUARANTY. The guaranty to be provided by Guarantor
pursuant to Section 17.1 hereof is a guaranty of payment, not merely of
collection, and is independent of any other guaranty or surety of the
Obligations. If NHP shall fail to perform or pay any Obligation, Guarantor
shall pay or perform such Obligation as and when due. Guarantor hereby waives
(i) promptness, diligence, notice, disclosure, demand for, presentment, protest
and dishonor other than as specifically provided for herein, and (ii) any right
to force the Company to proceed first, concurrently or jointly against NHP, any
other guarantor, surety or other co-obligor.
17.3 REPRESENTATIONS AND WARRANTIES. Guarantor hereby makes the
representations and warranties set forth in Section 6.5(a), (d) and (e).
17.4 OWNERSHIP OF NHP. Guarantor represents and warrants that it is
Beneficial Owner of all of the outstanding equity of NHP, and that it shall not,
directly or indirectly, dispose or otherwise transfer any direct or indirect
equity interest in NHP, other than to an Affiliate, without the prior written
consent of all of the Members.
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17.5 OFFERINGS ON ANCILLARY SERVICES TO PROPERTY MANAGERS. In the
event that Guarantor or any Affiliate of Guarantor which Guarantor controls
offers service opportunities ancillary to third-party property management to
third-party property managers or agents, for which property managers may earn a
fee, commission or other remuneration, Guarantor shall cause such service
opportunities to be offered to the Company on overall terms and conditions which
are competitive with those offered to such other managers or agents located in
the counties set forth on EXHIBIT B.
[Signatures begin on next page]
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IN WITNESS WHEREOF, we have hereunto set out hand and seals on the date set
forth beside our names.
MEMBERS:
NHP MANAGEMENT COMPANY, a District of
Columbia corporation
1996 By:
------------------------ ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Executive Vice President
PROPERTY RESOURCES CORPORATION, a New
York corporation
1996 By:
------------------------ ---------------------------------
Name
---------------------------------
President
NHP Incorporated joins this Agreement only with respect to its obligations under
Article XVII.
NHP INCORPORATED
1996 By:
------------------------ ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Executive Vice President
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EXHIBIT A
INITIAL MEMBERS
INITIAL MEMBER/ MEMBERSHIP INITIAL FUTURE FUNDING OBLIGATION
ADDRESS PERCENTAGES CAPITAL - TO BE PAID WITHIN FIVE
CONTRIBUTION (5)BUSINESS DAYS OF A WRITTEN
DEMAND THEREFOR BY THE
MEMBER-MANAGER
Property Resources 50% 1996 - a pro rata (based
Corporation the Effective Date to ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ December 31, 1996) portion ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ of $150,000 (based upon a10028
contribution of $150,000
annually)
1997 - $150,000 less the
amount of the Contribution
made by PRC in 1996
Thereafter - noneNHP Management 50% 1996 - a
pro rata (based
Company on the number od days from
Fairfax Square the Effective Date to
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, December 31, 1996) portion
Suite 400 of $150,000 (based upon a
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ contribution of $150,000
annually)
1997 - $150,000 less the
amount of the Contribution
made by NHP in 1996
Thereafter - none
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EXHIBIT B
COUNTIES
NEW YORK CONNECTICUT NEW JERSEY
-------- ----------- ----------
Manhattan Fairfield BergenQueens
New Haven HudsonKings
EssexBronx
UnionRichmond
MiddlesexNassau
PassaicSuffolkWestchesterPutnamRocklandDutchess
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