EXHIBIT 10.27
REVISED AND RESTATED
OPERATING AGREEMENT OF
MARYMONT, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
In accordance with the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited Liability Company
Act and subject to the Articles of Organization, which were filed on
February 7, 2002 with the Secretary of State of California, the
members of MARYMONT, LLC listed on the signature page, make
the following revised and restated agreement on November 22, 2002
regarding the conduct of the business and affairs of MARYMONT,
LLC, a California limited liability company ("Company"), which
shall supercede and replace the agreement entered into between the
sole member on March 1, 2002.
ARTICLE 1. DEFINITION OF TERMS
1.01 When used in this agreement, the following terms have
the meanings set forth here:
(a) "Act" means California's ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited
Liability Company Act, as set forth in Corporations Code Title 2.5.
(b) "Agreement" means this operating agreement,
as originally executed and as amended from time to time.
(c) "Approved Costs" means the costs identified in
Paragraph 5.02 herein.
(d) "Articles" means the Articles of Organization
for the Company as originally filed with the Secretary of State and
as amended from time to time.
(e) "Bankruptcy" means, and a Member is deemed
a "Bankrupt Member" on, (1) the entry of a decree or order for relief
against the Member by a court of competent jurisdiction in any
involuntary case brought against the Member under any bankruptcy,
insolvency, or similar law ("Debtor Relief Laws") that generally
affect the rights of creditors and relief of debtors; (2) the appointment
of a receiver, liquidator, assignee, custodian, conservator, trustee or
similar agent under Debtor Relief Laws for the Member or for any
substantial portion of the Member's assets; (3) the issuance of an order
for the winding up and/or liquidation of the Member's affairs;
(4) the filing of a petition in any involuntary bankruptcy case that
remains un-dismissed or suspended under the federal bankruptcy
laws; (5) the commencement by a Member of voluntary case under
any applicable Debtor Relief Law; (6) the written admission of a
Member that the Member is unable to pay the Member's debts as
they become due; (7) the consent by any Member to the entry of an
order for relief in any involuntary case, or to the appointment of
(or the taking of possession by) a receiver, liquidator, assignee,
custodian, conservator, trustee or similar agent under Debtor
Relief Law for the Member or for any substantial portion of the
Member's assets; or (8) the making by a Member of any general
assignment for the benefit of creditors.
(f) "Capital Account" means the individual
accounts established and maintained pursuant to Paragraph 3.04.
(g) "Capital Contribution" means the total value
of cash and agreed fair market value of property contributed and
agreed to be contributed to the Company by each member, as shown
in Exhibit "A", as the same may be amended from time to time.
(h) "Code" means the Internal Revenue Code
of 1986, as amended. All references in this Agreement to sections
of the Code include any corresponding provision or provisions of
succeeding law.
(j) "Company" means MARYMONT, LLC,
a California limited liability company.
(j) "Company Minimum Gain" shall have the
meaning ascribed to the term "Partnership Minimum Gain"
in Regulations Section 1.704-2(d).
(k) "Distributable Cash" means the amount of
cash which the Manager deems available for distribution to the
Members, taking into account all debts, liabilities, and obligations
of the Company then due, and working capital and other amounts
which the Manager deems necessary for the Company's business
or to place into reserves for customary and usual claims with
respect to such business, including, but not limited to, the amount
required to pay selling expenses and closing costs in connection
with the sale of the Marymont home and a warranty reserve
equal to one percent (1%) of the selling price.
(l) "Dover" means Member Dover Investments
Corporation, a Delaware corporation.
(m) "Dover's New Equity" means the amount of cash
actually contributed by Dover to fund: (i) the amount of additional
new equity needed to pay off the Housing Capital Company Loan in
the approximate amount of Seven Hundred fifty Thousand Dollars
($750,000), which is the difference between the payoff amount of the
Housing Capital Company Loan and the New Dover Loan; and
(ii) fifty percent (50%) of the Company's Projected Negative Cash
Flow in the amount of Two Hundred Fifteen Thousand Dollars
($215,000).
(n) "Entity" means any association, corporation,
general partnership, limited partnership, limited liability company,
joint stock association, joint venture, firm, trust, business trust,
cooperative, and foreign association of like structure.
(o) "Fiscal Year" shall mean the Company's fiscal
year for financial reporting and for federal income tax purposes,
which shall be the calendar year.
(p) "Housing Capital Company Loan" means the
loan from the Housing Capital Company in the form of existing
financing on the Property in the approximate amount of Four
Million Seven Hundred Fifty Thousand Dollars ($4,750,000).
(q) "Interest" in the Company means the entire
ownership interest of a Member in the Company at any particular
time, including the right of the Member to any and all benefits to
which a Member may be entitled as provided in this Agreement
and under the Act, together with the obligations of the Member
to comply with all of the terms and provisions of this Agreement.
(r) "JBEB" means Member JB East Bay
Development Corporation, a California corporation.
(s) "JBEB's New Equity" means the cash
actually contributed to fund fifty percent (50%) of the
Company's Projected Negative Cash Flow by JBEB in the
amount of Two Hundred Fifteen Thousand Dollars ($215,000).
(t) "Joint Venture Agreement" means the
agreement between the Company and Dover in connection with
the purchase of the lot for the Real Property and construction of
a home for sale pursuant to that certain Marymont House
Letter Agreement dated August 4, 1999, as thereafter amended
on December 20, 2001.
(u) "Manager" means an individual or entity
appointed by consent of all Members and having the authority
as set forth in this Agreement.
(v) "Member" means each person or entity who is
an original signatory to the Agreement and has been admitted to
the Company as a Member, or who is an assignee that has been
admitted to the Company as a Member that has not resigned,
withdrawn, or been dissolved, or who is subsequently admitted to
the Company as a Member.
(w) "Membership Interest" means a Member's
Interest in the Company.
(x) "Member Nonrecourse Debt" shall have the
meaning ascribed to the term "Partner Nonrecourse Debt" in
Regulations Section 1.704-2(b)(4).
(y) "Member Nonrecourse Deductions" shall mean
items of Company loss, deduction, or Code Section 705(a)(2)(B)
expenditures which are attributable to Member Nonrecourse Debt.
(z) "New Dover Loan" means the loan from Member
Dover in the amount of $4 Million Dollars to the Company for the
purpose of paying off of the Housing Capital Company Loan.
(aa) "New Equity" means collectively, Dover's New
Equity and JBEB's New Equity.
(bb) "Old Equity" means the amount of money
Dover currently has equity invested in the Property in the
approximate amount of $2.2 Million Dollars pursuant to the Joint
Venture Agreement Dollars, which amount shall be carried over
to the Company.
(cc) "Percentage Interest" of a Member means the
percentage of the Member set forth opposite the name of the
Member in Exhibit "A" attached to this Agreement, as the
percentage may be adjusted from time to time pursuant to the
terms of this Agreement.
(dd) "Personal Property" means all personal
property owned by the Company and located on or in or used in
connection with the Real Property.
(ee) "Principal office" means the office of the
agent of this Company as shown in its Articles.
(ff) "Property" means the combined Company's
Real Property and Personal Property.
(gg) "Projected Negative Cash Flow" means the
Company's projected operating negative cash flow from December 1,
2002 through November 30, 2003, as attached hereto on Exhibit "B".
(hh) "Pro Rata Part" means the proportion that a
percentage interest of a Member bears to the aggregate interest in
the Company of all Members.
(ii) "Real Property" means all of the real property
located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as more
particularly described on Exhibit "C" attached hereto, including all
rights, privileges and easements appurtenant thereto, and all
improvements and fixtures situated thereon.
(jj) "Share" refers to an interest in the Company
representing a contribution to capital. Whenever reference is made
to "percentage interest," a share may be converted into the same by
dividing a Member's number of shares by the total of all shares
outstanding.
(kk) "Substitute Member" means any individual or
entity that is admitted into membership on the written consent of all
Members in accordance with Paragraph 3.11.
(ll) "Tax Matters Member" means the Member
chosen pursuant to Internal Revenue Code Section 6231(a)(7) to
deal with the Internal Revenue Service on tax matters.
ARTICLE 2. ORGANIZATION OF COMPANY
2.01 Formation of Company. The Members have formed
a limited liability company under the Act by properly executing and
filing the Articles and executing this Agreement. The rights, duties,
and liabilities of the Members and the Manager are determined
pursuant to the Act, the Articles, and this Agreement.
2.02 Company Name. The name of the Company
is MARYMONT, LLC. The Company will transact business
under that name. However, the Manager may conduct business
under another name if the Manager thinks it advisable, provided
that the Manager comply with the Act and any other applicable
laws, file fictitious name certificates and the like, and file any
necessary amendments.
2.03 Company Purpose. The purpose of the Company
is to engage in any business activity permitted by the Act. The
Company will own, develop, hold, operate, sell, lease and
otherwise deal with the Property, in addition to such other
endeavors as may be approved by the Members, in locations
selected by the Manager.
2.04 Duration of Company and Agreement. The
Company existence commenced on the Effective Date and shall
continue until dissolved and liquidated pursuant to the provisions
of Article 21 below.
ARTICLE 3. MEMBERS AND MEMBERSHIP
INTERESTS
3.01 Names, Addresses, and Initial Capital
Contributions of Members.
(a) Members, their respective addresses, their
initial capital contributions to the Company, and their respective
percentage interests in the Company are set forth on Exhibit "A",
attached to this Agreement and made a part of it.
(b) The initial capital contributions of the Members,
which shall be set out in Exhibit "A" of this Agreement shall be as
follows:
(1) Dover will contribute the Old Equity and
the Dover's New Equity.
(2) JBEB will contribute JBEB's New Equity.
(c) The New Equity shall be funded in four (4) twenty
five percent (25%) quarterly installments in the amount of Fifty Three
Thousand Seven Hundred Fifty Dollars ($53,750), which payments
shall be made on December 1, 2002, February 28, 2003, May 31, 2003
and August 31, 2003 (each quarterly payment, a "Capital Contribution
Installment"). If a Member fails to make a required Capital
Contribution Installment within thirty (30) days after the installment
date, that Member's entire Membership Interest shall terminate
and that Member shall indemnify and hold the Company and
the other Member's harmless from any loss, cost, or expense,
including reasonable attorney fees, caused by the failure to make
such Capital Contribution.
(d) The Members agree that the past accrued
preferred return on the Old Equity and past accrued management
fee owed to the Members pursuant to the Joint Venture Agreement
shall be written off.
(e) At the end of the Fiscal Year, and every Fiscal
Year thereafter, if the Property has not sold, the Members shall
decide whether or not to fund the Projected Negative Cash Flow.
If JBEB decides not to fund the Projected Negative Cash Flow,
Dover shall purchase JBEB's Membership Interest in the company
for the amount of JBEB's New Equity plus seven percent (7%)
per annum from the date JBEB's New Equity was contributed until
the date paid. Dover shall pay JBEB the purchase price for the
Membership Interest at the time of sale of the Marymont house.
3.02 Additional Capital Contributions. No Member
shall be required to fund any equity beyond the Old Equity and
New Equity to be contributed by the Members pursuant to
Paragraph 3.01. Notwithstanding Paragraph 3.01, to the extent
approved by the Manager, from time to time, the Members may
be permitted to make such additional Capital Contributions if
and to the extent they so desire, and if the Manager determines
that such additional Capital Contributions are necessary or
appropriate for the conduct of the Company's business, including
without limitation, expansion or diversification. In that event,
the Members shall have the opportunity, but not the obligation,
to participate in such additional Capital Contributions on a pro
rata basis in accordance with their Percentage Interests. Each
Member shall receive a credit to his/her/its Capital Account in
the amount of any additional capital which he/she/it contributes
to the Company. Immediately following such Capital
Contributions, the Percentage Interests shall be adjusted by the
Manager to reflect the new relative proportions of the Capital
Accounts of the Members.
3.03 Member Loans or Services. Loans or services by
any Member to the Company may not be considered to be
contribution to the capital of the Company.
3.04 Capital and Capital Accounts.
(a) The initial Capital Contribution of each Member
is as set forth in Exhibit "A". Interest may be paid on any other
Capital Contribution.
(b) The Company will establish and maintain
individual Capital Accounts on behalf of each Member, including
any additional or Substituted Member who shall subsequently
receive any interest in the Company. The capital account of each
Member consists of (1) the amount of cash the Member has
contributed to the Company, less any liabilities assumed by the
Company or to which the property is subject, plus (3) the amount
of profits or income (including tax-exempt income) allocated to
the Member, less (4) the amount of losses and deductions allocated
to the Member, less (5) the amount of all cash distributed to the
Member, less (6) the fair market value of any property distributed
to the Member, net of any liability assumed by the Member or to
which the property is subject, less (7) the Member's share of any
other expenditures that are not deductible by the Company for
federal income tax purposes or that are not allowable as additions
to the basis of Company property, and (8) subject to any other
adjustments that may be required under the Code. The Capital
Account of a Member is not affected by any adjustments to basis
made pursuant to Section 743 of the Internal Revenue Code,
but must be adjusted with respect to adjustments to basis
made pursuant to Section 734 of the Internal Revenue Code.
(c) No Member has the right to withdraw his, her or
its capital contribution or to demand and receive property of the
Company or any distribution in return for his, her or its Capital
Contribution, except as may be specifically provided in this
Agreement or required by law. No Member may receive out of
Company property any part of his, her, or its capital contribution
until (1) all liabilities of the Company, except liabilities to the
Members on account of their loans, have been paid or sufficient
Company property remains to pay them, and (2) all Members
consent.
(d) Subject to the provisions of subparagraph (c) of this
paragraph, a Member may rightfully demand the return of his, her
or its Capital Contribution (1) on the dissolution of the Company,
or (2) with the consent of all the members. A Member may demand
and receive only cash in return for the Member's Capital Contribution.
3.05 Admission of Additional Members. The Members
may admit to the Company additional members to participate in the
profits, losses, available cash flow, and ownership of the assets of the
Company on such terms as are determined by all of the Members.
Admission of any additional Member requires the written consent
of all of the Members then having any interest in the Company.
Any additional Members are allocated gain, loss, income, or expense
by the method provided in this Agreement.
3.06 Limitation on Liability. No Member is liable under
a judgment, decree, or order of the court, or in any other manner,
for a debt, obligation, or liability of the Company, except as
provided by law. No Member is required to loan any funds to
the Company.
3.07 No Individual Authority. Unless expressly provided
in this Agreement, no Member, acting alone, has any authority to act
for, or to undertake or assume, any obligation, debt, or responsibility
on behalf of, any other Member of the Company.
3.08 No Member Responsible for Other Member's
Commitment. In the event that a Member (or a Member's
shareholders, partners, members, owners, or affiliates) has incurred
any indebtedness or obligation before the date of this Agreement
that relates to or otherwise affects the Company, neither the Company
nor any other Member has any liability or responsibility with respect
to the indebtedness or obligation unless the indebtedness or obligation
is assumed by the Company pursuant to a written instrument signed
by all Members. Furthermore, neither the Company nor any Member
is responsible or liable for any indebtedness or obligation that is
subsequently incurred by any other Member (or a Member's
shareholder, partners, members, owners, or affiliates). In the
event that a Member (or a Member's shareholders, partners,
members, owners, or affiliates; collectively called the "liable
Member"), whether before or after the date of this Agreement,
incurs (or has incurred) any debt or obligation that neither the
Company nor any of the other Members is to have any responsibility
or liability for, the liable Member must indemnify and hold harmless
the Company and the other Members from any liability or obligation
they may incur in respect of the debt or obligation.
3.09 Transfer and Assignment of Membership Interests.
(a) No Member may assign, convey, sell, encumber,
or in any way alienate all or any part of his, her or its Interest in the
Company as a Member without prior written consent of a majority
of the Members, which consent may be given or withheld,
conditioned or delayed (as allowed by this Agreement or the Act),
as the remaining Members may determine in their sole discretion.
Transfers in violation of this section are effective only to the extent
set forth in Paragraph 3.12(b), below.
(b) Any Member may transfer, assign or convey all
or any part of his, her or its Interest in the Company for estate
planning purposes to the Member's family limited partnership,
trust or other entity without prior written consent of the majority
of the Members upon ten (10) days prior written notice to all the
Members pursuant to the requirements of Paragraph 23.09 herein.
3.10 Further Restrictions on Membership Transfers.
No Member may assign, convey, sell, encumber, or in any way
alienate all or any part of his, her or its interest in the Company
(1) without registration under applicable federal and state
securities laws, or unless he, she or it delivers an opinion of
counsel satisfactory to the Company that registration under
those laws is not required; or (2) if the interest to be sold or
exchanged, when added to the total of all other sold or
exchanged in the preceding twelve (12) consecutive months
prior to that time, would result in the tax termination of the
Company under Section 708 of the Internal Revenue Code.
3.11 Substitute Members. A transferee may become
a Substitute Member if (1) the requirements of Paragraphs
3.05 and 3.09, above, are met; (2) the person or entity executes
an instrument satisfactory to the remaining Members accepting
and adopting the terms and provisions of this Agreement;
and (3) the person or entity pays all reasonable expenses in
connection with his or her admission as a remaining Member.
3.12 Effect of Transfer.
(a) Any permitted transfer of all or any portion
of a Member's interest in the Company takes effect on the first
day of the month following receipt by the Members of written
notice of transfer. Any transferee of an interest in the Company
takes subject to the restrictions on transfer imposed by this
Agreement.
(b) On a transfer of a Member's interest in the
Company in violation of this Agreement, the transferee has no
right to participate in the management of the business and
affairs of the Company or to become a Member, but the
transferee is entitled only to receive the share of profits or
other compensation by way of income and the return of
contributions to which the transferor of the interest in the
Company would otherwise be entitled.
3.13 Right of First Negotiation. If any Member
desires to transfer all or any part of his, her or its Membership
Interest, such Member shall notify the Company and the other
Members in writing of such desire and, for a period of thirty
(30) days thereafter, the Members and the Company shall
negotiate with respect to the purchase of such Member's
Membership Interest. During such period, the Member
desiring to transfer such Membership Interest may not
solicit a transferee for such Membership Interest.
3.14 Right of First Refusal. If the period described
in Paragraph 3.13 expires without an agreement being reached
as to the purchase of the Membership interest referred to therein,
the Member desiring to transfer his, her or its Membership
Interest may solicit transferees. In such event, each time a
Member proposed to transfer all or any part of his, her or its
Membership interest, such Member shall first offer such
Membership Interest to the Company and the non-transferring
Members in accordance with the following provisions:
(a) Such Member shall deliver a written notice
("Option Notice") to the Company and the other Members stating
(i) such Member's bona fide intention to transfer such Membership
Interest, (ii) the Membership Interest to be transferred, (iii) the
purchase price and terms of payment for which the Member
proposes to transfer such Membership Interest and (iv) the
name and address of the proposed transferee.
(b) Within thirty (30) days after receipt of the
Option Notice, the Company shall have the right, but not the
obligation, to elect to purchase all or any part of the Membership
Interest upon the price and terms of payment designated in the
Option Notice. If the Option Notice provides for the payment
of non-cash consideration, the Company may elect to pay the
consideration in cash equal to the good faith estimate of the
present fair market value of the non-cash consideration
offered as determined by the Manager. If the Company exercises
such right within such thirty (30) day period, the Manager shall
give written notice of that fact to the transferring and non-
transferring Members.
(c) If the Company fails to elect to purchase the
entire Membership Interest proposed to be transferred within the
thirty (30) day period described in Paragraph 3.14(b), the non-
transferring Members shall have the right, but not the obligation,
to elect to purchase any remaining share of such Membership
Interest upon the price and terms of payment designated in the
Option Notice. If the Option Notice provides for the payment
of non-cash consideration, such purchasing Members each may
elect to pay the consideration in cash equal to the good faith
estimate of the present fair market value of the non-cash
consideration offered as determined by the Manager.
Within sixty (60) days after receipt of the Option Notice,
each non-transferring Member shall notify the Manager in
writing of his or her desire to purchase a portion of the
Membership Interest proposed to be so transferred.
The failure of any Member to submit a notice within the
applicable period shall constitute an election on the part of
that Member not to purchase any of the Membership Interest
which may be so transferred. Each Member so electing to
purchase shall be entitled to purchase a portion of such
Membership Interest in the same proportion that the Percentage
Interest of such Member bears to the aggregate of the Percentage
Interests of all of the Members electing to so purchase the
Membership Interest being transferred. In the event any Member
elects to purchase none or less than all of his, her or its pro rata
share of such Membership Interest, then the other Members can
elect to purchase more than their pro rata share.
(d) If the Company and the other Members elect
to purchase or obtain any or all of the Membership Interest
designated in the Option Notice, then the closing of such purchase
shall occur within the ninety (90) days after receipt of such notice
and the transferring Member, the Company and/or the other
Members shall execute such documents and instruments and
make such deliveries as may be reasonably required to
consummate such purchase.
(e) If the Company and the other Members elect
not to purchase or obtain, or default in their obligation to purchase
or obtain, all of the Membership Interest designated in the Option
Notice, then the transferring Member may transfer the portion of
the Membership Interest described in the Option Notice not so
purchased, to the proposed transferee, providing such transfer
(i) is completed within thirty (30) days after the expiration of
the Company's and the other Members' right to purchase such
Membership Interest, (ii) complies with Paragraphs 3.05, 3.09,
3.10 and 3.11 relating to unanimous consent of Members,
securities and tax requirements.
ARTICLE 4. POWER TO AMEND AGREEMENT
4.01 The Power to adopt, alter, amend, or repeal this
Agreement is vested entirely in the Members of the Company.
ARTICLE 5. MANAGEMENT RIGHTS IN
MANAGER
5.01 The right to exercise the powers of the Company and
to manage the business and affairs of the Company is vested entirely
in the Manager, subject to review by the Members.
5.02 The Manager shall establish budgets as may be required
by the Members. The Manager shall, either personally or by delegation,
approve all costs and disbursements necessary to operate the Company's
business ("Approved Costs"), subject to review by the Members.
5.03 The Manager agrees to cause Woodview Realty, Inc.
("Woodview"), to be the listing broker for the Property with no
brokerage fee due Woodview on the sale of the Property, other than
reimbursement for direct costs. The Manager agrees that a brokerage
fee will be due the selling broker upon sale of the Property.
ARTICLE 6. ELECTION OF MANAGER
6.01 (a) The initial Manager specified in Exhibit "A" hereto
will serve as the Company's Manager until resignation or removal.
(b) The Manager may be elected at a special meeting
called for the purpose of electing a Manager. The Manager may also
be designated by the unanimous written consent of the Members.
(c) The term of service for the Manager is perpetual
unless removed by the affirmative vote of all of the Members.
ARTICLE 7. REMOVAL OF MANAGER
7.01 (a) The Members may remove a Manager before the
expiration of the Manager's term specified in this Agreement by the
affirmative vote of all of the Members.
(b) At any meeting of Members called expressly for
the purpose, a Manager may be removed for any reason, with or
without cause, on a resolution unanimously adopted by the
Members.
ARTICLE 8. ACTION BY MANAGER
8.01 The Manager has full authority to act on behalf of the
Company and its Members in its best interest.
ARTICLE 9. COMPENSATION OF MANAGER
9.01 It is acknowledged that the Manager has other business
interests to which the Manager devotes part of the Manager's time.
The Manager shall devote such time to the conduct of the business of
the Company as the Manager, in the Manager's own good faith and
discretion which it believes necessary for the successful operation
of the business.
9.02 The Manager shall not be entitled to compensation
for the Manager's services as other than for reimbursement for direct
costs reasonably incurred by the Manager in the performance of
the Manager's duties.
ARTICLE 10. EXECUTION OF DOCUMENTS
10.01 The Manager has the authority to execute documents
and instruments for the acquisition, mortgage, or disposal of property
on behalf of the Company, to enter into and bind the Company to
contractual relations and receive and disburse funds on behalf of the
Company.
ARTICLE 11. MEETINGS OF MEMBERS
11.01 (a) No meetings of Members are required.
However, to the extent meetings are held, all meetings of Members
will take place at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
(b) Any Member may call a special meeting by giving
at least ten (10) days written notice to all other Members. The notice
must specify the date, time, and place of the special meeting and the
purpose for calling the meeting. Notice of the meeting must be
delivered personally to the Members or sent to each Member by
United States mail or facsimile machine at the Member's address as
shown on the records of the Company. For mailed notice, the notice
must be deposited in the United States mail at least twelve (12) days
before the time the meeting is held.
(c) The transactions of the Members at any meeting,
however called or noticed, or wherever held, shall be as valid as though
transacted at a meeting duly held after call and notice if a quorum is
present and if, either before or after the meeting, each Member not
present signs a written waiver of Notice, a consent to the holding of
the meeting, or an approval of the minutes of the meeting.
(d) Members may participate in the meeting through
the use of a conference telephone or similar communications
equipment, provided that all Members participating in the meeting
can hear one another.
(e) The Members shall keep or cause to be kept with
the books and records of the Company full and accurate minutes of
all meetings, notices and waivers of notices of meetings, and all
written consents in lieu of meetings.
ARTICLE 12. QUORUM
12.01 At all meetings of the Members, a majority of
Members must be present to constitute a quorum for transaction of
business.
ARTICLE 13. ACTIONS BY MEMBERS AND
VOTING RIGHTS
13.01 Votes Required to Act. Except for those acts requiring
unanimous consent, an act of the Members of record is effective if the
majority of Members' votes adopt the act at a meeting at which a quorum
of Members is present. The voting rights of the Members are to be
distributed equally, one vote per Member, to each Member of the
Company.
13.02 Actions of Tax Matters Member. The Tax Matters
Member of the Company, chosen pursuant to Internal Revenue Code
Section 6231(a)(7), is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, who has the same authority as granted by the
Internal Revenue Code to a tax matters partner.
ARTICLE 14. ACTION BY CONSENT WITHOUT
MEETING.
14.01 Any action permitted to be taken by the Members may
be taken without a meeting if all of the Members individually or
collectively consent by signing a written approval of the action.
Any action by written consent shall have the same force and effect as
a unanimous vote of the Members.
ARTICLE 15. RECORD DATE
15.01 Only persons whose names are listed as members in
the official records of the Company fifteen (15) days before any
meeting of the Members are entitled to notice of or to vote at
that meeting.
ARTICLE 16. VOTE BY PROXY
16.01 Members may vote either in person or by proxy.
Proxies must be executed in writing by the Members. A telegram,
cablegram, or similar transmission by the Member or a photographic,
photostatic, facsimile, or similar reproduction of a writing executed
by a Member is deemed an execution in writing for purposes of this
Agreement.
ARTICLE 17. ALLOCATIONS OF NET PROFITS AND
NET LOSSES AND DISTRIBUTIONS
17.01 Allocations of Net Profit and Net Loss.
(a) Net Loss. Net Loss shall be allocated to the
Members in proportion to their Percentage Interests.
Notwithstanding the previous sentence, loss allocations to
a Member shall be made only to the extent that such loss allocations
will not create a deficit Capital Account balance for that Member
in excess of an amount, if any, equal to such Member's share of
Company Minimum Gain. Any loss not allocated to a Member
because of the foregoing provision shall be allocated to the other
Members to the extent the other Members are not limited in
respect of the allocation of losses under this Paragraph 17.01(a).
Any loss reallocated under this Paragraph 17.01(a) shall be taken
into account in computing subsequent allocations of income and
losses pursuant to this Article 17, so that the net amount of any
item so allocated and the income and losses allocated to each
Member pursuant to this Article 17, to the extent possible, shall
be equal to the net amount that would havebeen allocated to each
such Member pursuant to this Article 17 if no reallocation of losses
had occurred under this Paragraph 17.01(a).
(b) Net Profit. Net Profit shall be allocated to the
Members receiving cash distributions pursuant to Paragraph17.05
and thereafter in proportion to their Percentage Interests.
17.02 Special Allocations. Notwithstanding
Paragraph 17.01:
(a) Minimum Gain Chargeback. If there is a net
decrease in Company Minimum Gain during any Fiscal Year,
each Member shall be specially allocated items of Company
income and gain for such Fiscal Year and, if necessary, in
subsequent Fiscal Years, in an amount equal to the portion of
such Member's share of the net decrease in Company Minimum
Gain that is allocable to the disposition of Company property
subject to a Nonrecourse Liability, which share of such net
decrease shall be determined in accordance with Regulations
Section 1.704-2(g)(2). Allocations pursuant to this Paragraph
17.02(a) shall be made in proportion to the amounts required
to be allocated to each Member under this Paragraph 17.02(a).
The items to be so allocated shall be determined in accordance
with Regulations Section 1.704-2(f). This Paragraph 17.02(a)
is intended to comply with the minimum gain chargeback
requirement contained in Regulations Section 1.704-2(f) and
shall be interpreted consistently therewith.
(b) Chargeback of Minimum Gain Attributable to
Member Nonrecourse Debt. If there is a net decrease in
Company Minimum Gain attributable to a Member Nonrecourse
Debt, during any Fiscal Year, each Member who has a share of
the Company Minimum Gain attributable to such Member
Nonrecourse Debt, which share shall be determined in accordance
with Regulations Section 1.704-2(i)(5), shall be specially
allocated items of Company income and gain for such Fiscal
Year, and, if necessary, in subsequent Fiscal Years, in an amount
equal to that portion of such Member's share of the net decrease
in Company Minimum Gain attributable to such Member
Nonrecourse Debt that is allocable to the disposition of Company
property subject to such Member Nonrecourse Debt, which share
of such net decrease shall be determined in accordance with
Regulations Section 1.704-2(i)(5). Allocations pursuant to this
Paragraph 17.02(b) shall be made in proportion to the amounts
required to be allocated to each Member under this Paragraph
17.02(b). The items to be so allocated shall be determined in
accordance with Regulations Section 1.704-2(i)(4). This
Paragraph 17.02(b) is intended to comply with the minimum
gain chargeback requirement contained in Regulation Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Nonrecourse Deductions. Any nonrecourse
deductions, as defined in Regulations Section 1.704-2(b)(1),
for any Fiscal Year or other period shall be specially allocated
to the Members in proportion to their Percentage Interests.
(d) Member Nonrecourse Deductions. Those items
of Company loss, deduction, or Code Section 705(a)(2)(B)
expenditures which are attributable to Member Nonrecourse
Debt for any Fiscal Year or other period shall be specially
allocated to the Member who bear the economic risk of loss
with respect to the Member Nonrecourse Debt to which such
items are attributable in accordance with Regulations
Section 1.704-2(i).
(e) Qualified Income Offset. If a Member
unexpectedly receives any adjustments, allocations, or
distributions described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), or any other event creates
a deficit balance in such Member's Capital Account in excess
of such Member's share of Company Minimum Gain, items of
Company income and gain shall be specially allocated to such
Member in an amount and manner sufficient to eliminate such
excess deficit balance as quickly as possible. Any special
allocations of items of income and gain pursuant tot this
Paragraph 17.02(e) shall be taken into account in computing
subsequent allocations of income and gain pursuant to this
Article 17 so that the net amount of any item so allocated and
the income, gain, and losses allocated to each Member pursuant
to this Article 17 to the extent possible, shall be equal to the net
amount that would have been allocated to each such Member
pursuant to the provisions of this Paragraph 17.02(e) if such
unexpected adjustments, allocations, or distributions had not
occurred.
17.03 Section 704(c) Allocations. Notwithstanding
any other provision in this Article 17, in accordance with Code
Section 704(c) and the Regulations promulgated 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 to
the Company for federal income tax purposes and its fair market
value on the date of contribution. Allocations pursuant to this
Paragraph 17.03 are solely for purposes of federal, state and
local taxes. As such, they shall not affect or in any way be
taken into account in computing a Member's Capital Account
or share of profits, losses, or other items of distributions pursuant
to any provisions of this Agreement.
17.04 Allocations of Net Profits and Losses and
Distributions in Respect of a Transferred Interest. If any Economic
Interest is transferred, or is increased or decreased by reason of the
admission of a new Member or otherwise, during any Fiscal Year
of the Company, Net Profit or Net Loss for such Fiscal Year shall
be assigned pro rata to each day in the particular period of such
Fiscal Year to which such item is attributable (i.e., the day on or
during which it is accrued or otherwise incurred), and the amount
of each such item so assigned to any such day shall be allocated
to the Member or Assignee based upon his or her respective
Economic Interest at the close of such day.
However, for the purpose of accounting convenience
and simplicity, the Company shall treat a transfer of, or an
increase or decrease in, an Economic Interest which occurs at
any time during a semi-monthly period (commencing with the
semi-monthly period including the date hereof) as having been
consummated on the last day of such semi-monthly period,
regardless of when during such semi-monthly period such
transfer, increase, or decrease actually occurs (i.e., sales and
dispositions made during the first fifteen (15) days of any month
will be deemed to have been made on the fifteenth (15th) day
of the month).
Notwithstanding any provision above to the contrary,
gain or loss of the Company realized in connection with a sale or
other disposition of any of the assets of the Company shall be
allocated solely to the parties owning Economic Interests as of the
date such sale or other disposition occurs.
17.05 Distributions of Distributable Cash by the
Company. Subject to applicable law and any limitations contained
elsewhere in this Agreement, the Manager may elect from time to
time to distribute Distributable Cash to the Members periodically,
but not less frequently than at the end of each calendar quarter, and
after the payment from gross income of all Approved Costs, which
distributions shall be in the following order of priority:
(a) First, to pay off the New Dover Loan.
(b) Second, to pay back the New Equity in proportion
to the amount of the Member's New Equity contributions as set forth
opposite the name of the Member in Exhibit "A".
(c) Third, to pay a preferred return on New Equity
equal to seven percent (7%) per annum.
(e) Fourth, to payback the Old Equity.
(f) Fifth, to the Members in proportion to their
Percentage Interests (50%-50%) as set forth opposite the name of
the Member in Exhibit "A".
All such distributions shall be made only to the Persons who,
according to the books and records of the Company, are the holders
of record of the Economic Interests in respect of which such
distributions are made on the actual date of distribution. Subject to
Paragraph 17.07, neither the Company nor any Manager shall incur
any liability for making distributions in accordance with this
Paragraph 17.05.
17.06 Form of Distribution. A Member, regardless of
the nature of the Member's Capital Contribution, has no right to demand
and receive any distribution from the Company in any form other than
money. Except as provided in the Act, no Member may be compelled
to accept from the Company a distribution of any asset in kind in lieu
of a proportionate distribution of money being made to other Members
and no Member may be compelled to accept a distribution of any asset
in kind.
17.07 Restriction on Distributions
(a) No distribution shall be made if, after giving
effect to the distribution:
(ii) The Company would not be able to pay its
debts as they become due in the usual course of business; or
(iii) The Company's total assets would be less
than the sum of its total liabilities plus, unless this Agreement provides
otherwise, the amount that would be needed, if the Company were to
be dissolved at the time of the distribution, to satisfy the preferential
rights of other Members, if any, upon dissolution that are superior to
the rights of the Member receiving the distribution.
(b) The Manager may base a determination that a
distribution is not prohibited on any of the following:
(i) Financial statements prepared on the basis
of accounting practices and principles that are reasonable in the
circumstances;
(ii) A fair valuation; or
(iii) Any other method that is reasonable in the
circumstances.
Except as provided in Corporations Code Section 17254(e), the
effect of a distribution is measured as of the date the distribution is
authorized if the payment occurs within one hundred twenty (120)
days after the date of authorization, or the date payment is made if it
occurs more than one hundred twenty (120) days of the date of
authorization.
(c) A Member or Manager who votes for a distribution
in violation of this Agreement or the Act is personally liable to the
Company for the amount of the distribution that exceeds what could
have been distributed without violating this Agreement or the Act if
it is established that the Member or Manager did not act in compliance
with this Paragraph 17.07 or the Act. Any Member or Manager who
is so liable shall be entitled to compel contribution from (i) each
other Member or Manager who also is so liable and (ii) each Member
for the amount the Member received with knowledge of facts indicating
that the distribution was made in violation of this Agreement or the Act.
17.08 Return of Distributions. Members and Assignees who
receive distributions made in violation of the Act or this Agreement
shall return such distributions to the Company. Except for those
distributions made in violation of the Act or this Agreement, no Member
or Assignee shall be obligated to return any distribution to the Company
or pay the amount of any distribution for the account of the Company or
to any creditor of the Company. The amount of any distribution
returned to the Company by a Member or Assignee or paid by a
Member or Assignee for the account of the Company or to a creditor
of the Company shall be added to the account or accounts from which
it was subtracted when it was distributed to the Member or Assignee.
17.09 Obligations of Members to Report Allocations.
The Members are aware of the income tax consequences of the
allocations made by this Article 17 and hereby agree to be bound
by the provisions of this Article 17 in reporting their shares of
Company income and loss for income
tax purposes.
17.10 Compliance. The provisions of this Agreement are
intended to comply with and in some cases are required by Sections
704(b) and 704(c) of the code and Regulations thereunder. Some of the
language in this Agreement is taken directly from such Regulations.
This Agreement is intended to be interpreted in such manner as to
comply with the Regulations. The Manager may make modifications
deemed appropriate to comply with such Regulations if events
otherwise cause this Agreement not to comply.
ARTICLE 18. INDEMNIFICATION OF MEMBERS
AND MEMBER'S FIDUCIARY DUTIES
18.01 The Company will indemnify Members for any act
taken in the capacity of a Member, other than acts that involve a breach
of fiduciary duty. The standard of the fiduciary duty a Member owes to
the Company and to its members are those of a partner to a partnership
and to the partners of the partnership. A Member's standard of conduct
owed to the Company and other Members is to act in the highest good
faith to the Members, and a Member may not seek to obtain an
advantage in the Company affairs by the slightest misconduct,
misrepresentation, concealment, threat, or adverse pressure of any kind.
ARTICLE 19. INDEMNIFICATION OF MANAGER
AND MANAGER'S FIDUCIARY DUTIES
19.01. The Company shall indemnify Manager for any act taken
in the capacity of a Manager, other than acts that involve a breach of
fiduciary duty. The standard of the fiduciary duties a Manager owes to
the Company and to its Members are those of a partner to a partnership
and to the partners of the partnership. A Manager's standard of conduct
owed to the Company and other Members is to act in the highest good
faith to the Members, and a Manager may not seek to obtain an
advantage in the Company affairs by the slightest misconduct,
misrepresentation, concealment, threat, or adverse pressure of any kind.
ARTICLE 20. COMPANY RECORDS AND REPORTS
20.01. Records and Accounting. The books and records of the
Company must be kept, and the financial position and the results of its
operations recorded, in accordance with the accounting methods elected
to be followed by the Company for federal and state income tax purposes.
The books and records of the Company must reflect all Company
transactions and must be appropriate and adequate for the Company's
business.
20.02. Access to Accounting Records. All books and records
of the Company must be maintained at any office of the Company or
at the Company's principal place of business, and each Member, and his
or her duly authorized representative, must have access to them at the
office of the Company and the right to inspect and copy them at
reasonable times.
20.03. Annual and Tax Information. The Manager must use
its best efforts to cause the Company to deliver to each Member, within
forty-five (45) days after the end of each fiscal year, all information
necessary for the preparation of each Member's federal income tax return.
The Manager must also use their best efforts to cause the Company to
prepare, within forty-five (45) days after the end of each fiscal year,
a financial report of the Company for the fiscal year, which must
contain a balance sheet as of the last day of the year then ended, an
income statement for the year then ended, a statement of sources
and application of funds, and a statement of sources and applications
of funds, and a statement of reconciliation of the capital accounts
of the Members.
ARTICLE 21. DISSOLUTION OF COMPANY
21.01. The Company shall be dissolved, its assets shall be
disposed of, and its affairs shall be wound up on the first to occur of
the following events:
(a) Unanimous determination by all of the Members that
the Company should be dissolved.
(b) The expiration of the Company term as stated in the
Articles, if any.
(c) On the dissolution, bankruptcy, resignation, or expulsion
of any Member unless at least fifty percent (50%) of the remaining
Members consent to continue the Company within ninety (90) days of the
dissolution event.
(d) At any earlier time as may be provided by applicable law.
ARTICLE 22. REPRESENTATIONS
Each Member hereby represents and warrants to, and agrees
with, the Members and Company as follows:
22.01. He, she or it has a preexisting personal or business
relationship with the Company or one or more of its officers or
controlling persons, or by reason of his, her or its business or
financial experience, or by reason of the business or financial
experience of his, her or its financial advisor who is unaffiliated
with and who is not compensated, directly or indirectly, by the
Company or any affiliate or selling agent of the Company; he, she
or it is capable of evaluating the risks and merits of an investment
in the Company and of protecting his, her or its own interests in
connection with this investment.
22.02. He, she or it has not seen, received, been presented
with, or been solicited by any leaflet, public promotional meeting,
article or any other form of advertising or general solicitation with
respect to the sale of the Interest in the Company.
22.03. He, she or it is acquiring the Membership Interest
for investment purposes for his, her or its own account and not
with a view to or for sale in connection with any distribution of all
or any part of the Membership Interest. No other person will have
any direct or indirect beneficial interest in or right to the Membership
Interest.
22.04. He, she or it is financially able to bear the economic
risk of an investment in the Company, including the total loss thereof.
22.05. He, she or it acknowledges that the Membership
Interest has not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), or qualified under any blue sky
laws in reliance, in part, on his, her or its representations,
warranties and agreements herein.
22.06. He, she or it represents, warrants and agrees that
the Company is under no obligations to register or qualify the
Membership Interest under the Securities Act or under any state
securities law, or to assist him, her or it in complying with any
exemption from registration and qualification.
22.07. Without limiting the representations set forth
above, he, she or it will not make any disposition of all or any
part of the Membership Interest which will result in the violation
by him, her or it, or by the Company of the Securities Act or any
other applicable securities laws.
22.08. He, she or it understands that the certificates
(if any) evidencing the Membership Interest may bear any
legend required by applicable securities laws.
22.09. He, she or it acknowledges that the Membership
Interest is a speculative investment which involves a substantial
degree of risk of loss by him, her or it of his, her or its entire
investment in the Company, that he, she or it understands and takes
full cognizance of the risk factors related to the purchase of the
Membership Interest, and that the Company is newly organized and
has no financial or operating history.
22.10. He, she or it acknowledges that there are substantial
restrictions on the transferability of the Membership Interest pursuant
to this Agreement, that there is no public market for the Membership
Interest and none is expected to develop, and that, accordingly, it may
not be possible for him, her or it to liquidate his, her or its investment
in the Company.
22.11. Neither the Members, any agent or employee of the
Company or of the Members, nor any other person has at any time
guaranteed or warranted to him or her that he, she or it may
freely transfer the Membership Interest, that a percentage of profit
and/or amount or type of consideration will be realized as a result
of an investment in the Membership Interest, that past performance
or experience on the part of any Member or any other person in any
way indicates the predictable results of the ownership of the
Membership Interest or of the overall Company business, that any
cash distributions from Company operations or otherwise will be
made to the Members by any specific date or will be made at all
or that any specific tax benefits will accrue as a result of an
investment in the Company.
22.12. He, she or it acknowledges that the tax consequences
to him, her or it of investing in the Company will depend on his,
her or its particular circumstances, and neither the Company,
the Members, nor any other person will be responsible or liable for
the tax consequences to him, her or it of an investment in the
Company. He, she or it will look solely to, and rely upon, his,
her or its own advisers with respect to the tax consequences of
this investment.
ARTICLE 23. MISCELLANEOUS PROVISIONS
23.01. Complete Agreement. This Agreement and the
Articles of this Company constitute the complete and exclusive
statement of agreement among the Members with respect to the
subject matter described. This Agreement and the Articles
replace and supersede all prior agreements by and among any of
the Members. This Agreement and the Articles supersede all
prior written and oral statements; no representation, statement,
or condition or warranty not contained in this Agreement or
the Articles is binding on the Members or has any force or effect.
23.02. Governing Law. This Agreement and the rights
of the parties under this Agreement will be governed by, interpreted,
and enforced in accordance with the laws of the State of California.
23.03. Binding Effect. Subject to the provisions of this
Agreement relating to transferability, this Agreement is binding
on and inures to the benefit of the Members, and their
respective distributees, successors, and assigns.
23.04. Severability. If any provision of this
Agreement is held to be illegal, invalid, or unenforceable under
the present or future laws effective during the term of this
Agreement, the provision is fully severable; this Agreement is
construed and enforced as if the illegal, invalid, or unenforceable
provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, or
unenforceable provision; and there will be added automatically
as a part of this Agreement a provision as similar in terms to the
illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
23.05. Multiple Counterparts. This Agreement may be
executed in several counterparts, each of which is deemed an
original but all of which constitute one and the same instrument.
However, in making proof only one copy signed by the party to
be charged is required.
23.06. Additional Documents and Acts. Each Member
agrees to execute and deliver additional documents and instruments
and to perform all additional acts necessary or appropriate to
effectuate, carry out, and perform all of the terms, provisions, and
conditions of this Agreement and the transactions contemplated by it.
23.07. No Third Party Beneficiary. This Agreement is made
solely and specifically among and for the benefit of the parties to it,
and their respective successors and assigns, subject to the express
provisions of the Agreement relating to successors and assigns, and
no other person has or will have any rights, interest, or claims under
this Agreement as a third-party beneficiary or otherwise.
23.08. Tax Consequences. Members acknowledge that the
tax consequence of each Member's investment in the Company is
dependent on each Member's particular financial circumstances.
Each Member will rely solely on the Member's financial advisors
and not the Company. The Company makes no warranties as to
the tax benefits that the Members receive or will receive as a result
of the Member's investment in the Company.
23.09. Notices. Any notice to be given or to be served on
the Company or any party to this Agreement in connection with
this Agreement must be in writing and is deemed to have been
given and received when delivered to the address specified by
the party to receive the notice. Notices must be given to each
Member at the address specified in Exhibit "A". Any Member
or the Company may, at any time, designate any other address in
substitution of the foregoing address to which notice will be given
by giving written notice to the other Members and the Company
thirty (30) days before the date of delivery of the notice.
23.10. Amendments. All Amendments to this Agreement
must be in writing and signed by all of the Members.
23.11. Title to Company Property. Legal title to all property
of the Company must be held and conveyed in the name of the
Company.
23.12. Reliance on Authority of Person Signing Agreement.
In the event that a Member is not a natural person, neither the
Company nor any Member will (1) be required to determine
the authority of the individual signing this Agreement to make any
commitment or undertaking on behalf of the entity or to determine
any fact or circumstance bearing on the existence of the authority
of the individual, or (2) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this
Agreement on behalf of the entity.
IN WITNESS THEREOF, the undersigned have executed
this Agreement, to be effective as of the date that the Articles of
Organization of the Company are accepted for filing by the
Secretary of State.
Member:
JB East Bay Development Corporation,
a California corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Its: Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
Member:
Dover Investments Corporation,
a Delaware corporation
By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: President
EXHIBIT A
CAPITAL CONTRIBUTION OF MEMBERS AND
ADDRESSES OF MEMBERS AND
MANAGER OF
MARYMONT, LLC
Member's Name;
Dover Investments
Corporation,
a Delaware corporation
Member's Address;
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Member's Capital Contribution;
The amount of the Old Equity in the approximate amount
of $2.2 Million Dollars and Dover's New Equity in the
approximate amount of $750,000, plus 50% of the
Company's Projected Negative Cash Flow in the
amount of $215,000, which shall be funded in four
quarterly 25% installments of $53,750, commencing
December 1, 2002 and terminating on August 31, 2003
Member's Percentage Interest;
50%
Member's Name;
JB East Bay Development Corporation,
a California corporation
Member's Address;
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Member's Capital Contribution;
50% of the Company's Projected Negative Cash
Flow in the amount of $215,000, which shall be
funded in four quarterly 25% installments of $53,750,
commencing December 1, 2002 and terminating on
August 31, 2003
Member's Percentage Interest;
50%
Manager's Name and Manager's Address;
JB East Bay Development Corporation,
a California corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
PROJECTED NEGATIVE CASH FLOW
The Company's projected operating negative cash flow from
December 1, 2002 through November 30, 2003 is as follows:
a. Debt Service $240,000 (assumes 6% interest)
b. Property Taxes $42,500
c. Insurance $20,000
d. Maintenance $20,000
e. Miscellaneous $7,500
f. Staging $100,000
Total $430,000
EXHIBIT C
LEGAL DESCRIPTION OF PROPERTY