MADISON BANK
May 5, 1998
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. Crits
c\o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Agreement to Conduct Mortgage Banking Business
Dear Messrs. ▇▇▇▇▇ and Crits:
The purpose of this letter is to set out in writing the terms of the
agreement which has been reached between Madison Bank (the "Bank"), ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇ ▇. Crits ("Crits") with regard to the establishment of
a mortgage banking operation (the "Mortgage Business"), to be conducted on a
joint basis by ▇▇▇▇▇, Crits and the Bank. While the parties hereto intend to
conduct the Mortgage Business through a Pennsylvania Limited Liability Company
(the "LLC," which will elect to be treated as a partnership for federal income
tax purposes), the operating agreement for which is attached hereto as Exhibit
A, and that ▇▇▇▇▇ and Crits will provide services to the LLC and receive certain
"guaranteed payments" for those services pursuant to the terms of the
Compensation Agreements between the LLC and each of ▇▇▇▇▇ and Crits
(substantially in the form attached hereto as Exhibit B), it is understood that
it may be necessary to conduct the Mortgage Business for some period of time as
a direct operation of the Bank rather than as an operation of the LLC, and that
▇▇▇▇▇ and Crits will be engaged as employers of the Bank in order to conduct the
Mortgage Business during that period.
In addition, ▇▇▇▇▇ and Crits will be employed by the Bank for the
purpose of providing certain regular services, including the provision of
strategic advice to the Bank with respect to its position in the mortgage and
related businesses, and will make themselves available to the Bank from time to
time for such additional services as may reasonably be requested by the Bank.
Each of ▇▇▇▇▇ and Crits will be paid for these services a salary of $12,000 per
year, or such other amount as may be mutually agreed to by the parties.
In connection with the establishment of the Mortgage Business, the
parties hereto have agreed as follows:
1. Within ten (10) business days of the date hereof, the Bank will
contribute $150,000 and ▇▇▇▇▇ and Crits will each contribute $50,000 to the LLC.
May 5. 1998
Page 2
2. ▇▇▇▇▇ and Crits will conduct the Mortgage Business as employees
of the Bank or as employees of a wholly owned subsidiary of the Bank, if such an
entity is established for this purpose, commencing as soon as possible following
the date hereof, but in no event more than fifteen (15) days following the date
hereof until such time as the LLC becomes qualified to conduct the Mortgage
Business under any applicable laws or regulations relating to the conduct of the
Mortgage Business by the LLC, at which time the Mortgage Business shall be
contributed to the LLC and ▇▇▇▇▇ and Crits will cease to conduct the Mortgage
Business as employees of the Bank or a wholly owned subsidiary of the Bank, and
will operate the Mortgage Business solely in their capacities as Members of the
LLC (notwithstanding any other duties they may continue to have as employees of
the Bank or an affiliate of the Bank).
3. The compensation paid to ▇▇▇▇▇ and Crits with respect to any
period during which they are operating the Mortgage Business in their capacities
as employees of the Bank or of a wholly owned subsidiary of the Bank will be
paid to them in the form of wages, the gross amount of which will be equal to
the amounts which would have been payable to them as guaranteed payments and as
their share of the net profits of the Mortgage Business if the Mortgage Business
had been conducted by the LLC, consistent with the terms of the Operating
Agreement and their Compensation Agreements, and shall be paid to them as nearly
as possible at the same time or times the guaranteed payments and the
distribution of net profits would have been made by the LLC if the Mortgage
Business had been conducted by it.
4. In the event it is determined by counsel to the Bank that it is
either impractical or impossible to cause the Mortgage Business to be conducted
by the LLC, the Mortgage Business will be continued as a business operation of
the Bank (or a wholly owned subsidiary of the Bank), and compensation (including
commissions, bonuses and phantom equity compensation) will be paid to ▇▇▇▇▇ and
Crits equal to the amounts which would have been payable to them as guaranteed
payments and as their share of the net profits of the Mortgage Business if the
Mortgage Business had been conducted by the LLC, consistent with the terms of
the Operating Agreement and their Compensation Agreements, and shall be paid to
them as nearly as possible at the same time or times the guaranteed payments and
the distribution of net profits would have been made by the LLC if the Mortgage
Business had been conducted by it. To the extent it is determined that there is
any additional net tax burden on any party hereto as a result of the conduct of
the Mortgage Business as an operation of the Bank or of a wholly owned
subsidiary of the Bank when compared to the tax burden that would have been
borne by that party if the Mortgage Business had been conducted by the LLC,
payments of compensation to ▇▇▇▇▇ and/or Crits shall be adjusted, up or down, as
the case may be, so as to cause any such net additional tax liability to be
borne 50% by the Bank and 25% by each of ▇▇▇▇▇ and Crits (taking into account
for these purposes the additional tax burdens or benefits which result from any
such changes in compensation payments).
May 5, 1998
Page 3
5. In addition, if it is determined pursuant to the preceding
paragraph that it is either impractical or impossible to cause the Mortgage
Business to be conducted by the LLC, the capital contributed to the LLC by the
Bank will be repaid to the Bank, and the capital contributed or required to be
contributed to the LLC by ▇▇▇▇▇ and Crits will be transferred to an interest
bearing escrow account. ▇▇▇▇▇ and Crits will have an obligation to fund
operating expenses of the Mortgage Business to the same extent that their share
of the capital contributed to the LLC would have been used to pay such expenses
if the Mortgage Business had been operated by the LLC, such obligation to be
secured by and paid from the escrow accounts created pursuant to this paragraph.
A decision to release any funds held in these escrow accounts to ▇▇▇▇▇ and Crits
will be made in the same manner as a decision by the Board of the LLC to return
capital to the Members of the LLC.
6. The Bank, ▇▇▇▇▇ and Crits agree to be subject to all provisions
of the Operating Agreement and the Compensation Agreements. This agreement to be
bound by the terms of the Operating Agreement and the Compensation Agreements
shall be interpreted as nearly as possible so as to put the parties hereto in
the same economic position and subject to the same requirements and limitations
as would have in effect if the Mortgage Business had been conducted by the LLC.
The Bank, ▇▇▇▇▇ and Crits acknowledge their agreement to be bound by
the terms set forth in this letter by executing this letter where indicated.
This letter may be executed in counter-parts and shall be treated as legally
binding when all of the parties hereto have signed this letter or signed on a
counterpart hereto.
(SEAL)
Madison Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: President
-------------------------------------
I have read the terms set forth above, and hereby acknowledge my agreement with
such terms, intending to be legally bound hereby:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. Crits
----------------------------------
▇▇▇▇ ▇. Crits
EXHIBIT A
PHILADELPHIA FINANCIAL MORTGAGE CO., LLC
OPERATING AGREEMENT
This Operating Agreement for Philadelphia Financial Mortgage Co.,
LLC, a Pennsylvania limited liability company, is entered into this __ day of
April, 1998 by and between Madison Bank (the "Bank"), ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇") and ▇▇▇▇ ▇. Crits ("Crits") (the Bank, ▇▇▇▇▇ and Crits are referred to
collectively herein as the "Members")
W I T N E S S E T H
The Members have caused to be formed on May 5, 1998, by an
authorized person, a limited liability company pursuant to and in accordance
with the Pennsylvania Limited Liability Company Law of 1994 (15 Pa. Cons. Stat.
▇▇▇. Ch. 89), as amended from time to time (the "Act"), and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
I. FORMATION
1.01 Name. The name of the limited liability company is Philadelphia
Financial Mortgage Co., LLC (the "Company").
1.02 Purpose. The purpose of the Company is to engage in the
business of providing mortgage services and activities incidental or related
thereto and to engage in any other lawful business and activity permitted to be
engaged in by a limited liability company pursuant to the Act.
1.03 Term. The Company was formed on May 5, 1998 by the filing of
the Certificate of Organization of the Company (the "Certificate") with the
office of the Secretary of State of the Commonwealth of Pennsylvania and shall
continue until December 31, 2028, unless sooner dissolved and wound up in
accordance with the provisions of the Act or this Agreement or extended by the
unanimous consent of the Members.
1.04 Principal Office. The principal office of the Company shall be
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other place or
places as the Board may from time to time designate. The Company may maintain
such other offices and places of business as the Board may from time to time
deem advisable.
II. DEFINED TERMS
The following defined terms used in this Agreement shall have the
meanings specified below, in addition to any other defined terms used herein:
"Accountants" the independent accountants regularly engaged by the
Company to review or audit its financial statements.
"Bankruptcy" means an adjudication of bankruptcy or the entry of an
order for relief or the filing of a voluntary case or petition under the federal
bankruptcy law or any state or local bankruptcy law and, in addition, any other
status constituting bankruptcy within the meaning of the Act.
"Board" means the Board of Managers responsible for the management
of the Company pursuant to Article V of this Agreement.
"Book Value" means the net value of the Company as of any relevant
date as determined, consistent with generally accepted accounting principles, by
the Company's Accountants. The Book Value of a Member's units of Membership
Interest is equal to the amount that would be distributed to such Member if the
Company liquidated all of its assets, realizing as a result of such transaction
a net cash amount equal to the Book Value of the Company and then distributed
such net amount in accordance with the terms of this Agreement as a distribution
under Section 4.03 (b)(ii).
"Capital Contribution" means the total amount of money or other
property contributed or agreed to be contributed, as the context requires, to
the Company by each Member pursuant to the terms of this Agreement. Any
reference to the Capital Contribution of a Member shall include the Capital
Contribution made by any predecessor holder of the interest in the Company of
such Member allocable to such interest.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute. All references to specific sections of the Internal Revenue
Code shall be deemed to include any provisions of the Internal Revenue Code
which replace or supersede the sections in effect at the time of execution of
this Agreement.
"Fair Market Value" means the net fair market value of the Company
as established in the context of an arm's-length sale of the Company or its
assets. In the absence of any such transaction, the net Fair Market Value of the
Company shall be equal to the net value of the Company established, taking all
relevant facts and circumstances into account, by the unanimous agreement of the
Board, or, absent such unanimous agreement, by a qualified appraiser engaged, by
the mutual action of all panics concerned, for this purpose. If the parties
concerned cannot agree on the identity of a qualified appraiser to be engaged
for these purposes, all parties may engage their own appraisers at their own
expense who may, if those appraisers
2
cannot agree upon a value, agree to the engagement of another appraiser mutually
acceptable to the appraisers engaged by the parties. In no event, however, shall
the net Fair Market Value of the Company be less than the Book Value of the
Company. The Fair Market Value of a Member's interest is equal to the amount
that would be distributed to such Member if the Company sold all of its assets,
realizing as a result of such transaction a net cash amount equal to the net
Fair Market Value of a Company, and then distributed such net amount in
accordance with the terms of this Agreement as a distribution under Section
4.03(b)(ii). Notwithstanding the determination of the Fair Market Value of the
Company as set forth above, during the first year of the Company's existence,
the Company's Fair Market Value shall be deemed to be equal to its Book Value.
"Liquidation Payment" means the payment made to a Member on the
withdrawal of the Member from the Company and the liquidation or redemption by
the Company of such Member's units of Membership Interest.
"Liquidator" means such Person or Persons (as hereinafter defined)
as shall be chosen by unanimous consent of the Board or, if there are no duly
elected Managers at the time in question, such other Person who may be appointed
in accordance with applicable law and who shall be responsible for taking all
action necessary or appropriate to wind up the affairs, and distribute the
assets of the Company upon its dissolution.
"Managers" means Managers of the Company chosen by the Members (as
hereinafter defined) pursuant to the terms of Section 5.02.
"Members" means the Bank, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. Crits and
such other Persons as shall become Members under the terms of this Agreement.
"Membership Interest" means units of Membership Interest in the
Company. The number of units of Membership Interest owned initially by each
Member is set forth in Section 3.03. The terms "Membership Interest" or
"interests in the Company," for the purposes of this Agreement includes, without
limitation, the rights to profits, losses, gains, credits and distributions from
the Company.
"Mortgage Business" means the mortgage banking operations conducted
or to be conducted by the Company.
"Person" means any individual, trust, corporation, partnership,
proprietorship or any other entity.
"Restrictive Covenant" means the provisions, set forth in Section
7.05 of this Operating Agreement.
"Treasury Regulations" means the regulations promulgated under the
Code.
3
"Unrepaid Capital Contribution" means the excess, if any, of the
total Capital Contributions theretofore made by a Member over the total
distributions theretofore made to such Member pursuant to Section 4.03.
III. MEMBERS CONTRIBUTIONS: ADMISSION TO MEMBERSHIP
3.01 The Members of the Company are the Bank, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇ ▇. Crits.
3.02 Capital Contributions. The Members shall make the following
Contributions to the Company
(a) the Bank - $150,000.
(b) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - $50,000.
(c) ▇▇▇▇ ▇. Crits - $50,000.
Additional capital contributions shall only be required to be made by Members
pursuant to action of the Board acting unanimously.
3.03 Interests in the Company. In exchange for the Capital
Contributions set forth in Section 3.02, the Initial Members shall be entitled
to the following number of units of Membership Interest in the Company.
(a) The Bank shall have 510 units of Membership Interest;
(b) ▇▇▇▇▇ shall have 245 units of Membership Interest; and
(c) Crits shall have 245 units of Membership Interest.
3.04 No Certification. Units of Membership Interest in the Company
shall not be certificated.
3.05 Capital Accounts.
(a) A separate "Capital Account" shall be established and
maintained for each Member as provided in this Section 3.05. Without
duplication, the Capital Account of each Member shall be credited with the cash
and the fair market value of any property (net of liabilities assumed by the
Company and liabilities to which such property is subject) contributed to the
Company by such Member, plus all income, gain, or Profits (as hereinafter
defined) of the Company allocated to such Member pursuant to Article IV
(including for purposes of this
4
Section 3.05 income and gain exempt from tax), and shall be debited with the sum
of (i) all Losses (as hereinafter defined) or deductions of the Company
allocated to such Member pursuant to Article IV, (ii) such Member's distributive
share of expenditures of the Company described in Section 705(a)(2)(B) of the
Code, and (iii) all cash and the fair market value of any property (net of
liabilities assumed by such Member and the liabilities to which such property is
subject) distributed by the Company to such Member pursuant to Article IV. The
amount of the Capital Account of a Member shall be determined in accordance with
the rules set forth in Treasury Regulation 1,704-1 (b)(2)(iv). Any references in
any Section or subsection of this Agreement to the Capital Account of a Member
shall be deemed to refer to such Capital Account as the same may be credited or
debited from time to time as set forth above.
(b) Except as may otherwise be provided in this Agreement,
whenever it is necessary to determine the Capital Account of a Member for
purposes of Article IV, the Capita] Account of such Member shall be determined
after giving effect to all allocations and distributions for transactions
effected prior to the time as of which such determination is to be made. Any
Member, including any substitute Member, who shall acquire units of Membership
Interest or whose interest in the Company shall be increased by means of a
Transfer (as hereinafter defined) to him of all or part of the Membership
Interest of another Member, shall have a Capital Account which reflects such
Transfer.
3.06 Withdrawal and Return of Capital. Although the Company may make
distributions to the Members from time to time in return of their Capital
Contributions, no Member shall have the right to withdraw or demand a return of
all or any portion of his Capital Contribution or Capital Account, except (a)
upon the dissolution, liquidation and/or winding up of the business and affairs
of the Company in accordance with Section 8.02, and (b) upon the withdrawal of a
Member in accordance with Section 7.02.
3.07 Interest on Capital. No interest shall be payable on any
Capital Contributions made to the Company or on the balance of the Capital
Accounts of the Members.
3.08 Additional Contributions. No Member shall be required to lend
any funds to the Company or to contribute any capital to the Company in excess
of the amount which has been initially credited to such Member's Capital
Account.
3.09 Issuance of Additional Membership Interests and Securities. In
order to raise additional capital or to acquire assets, to redeem or retire
Company debt or for any other Company purpose, the Board is authorized to cause
the Company to issue in addition to the units of Membership Interest issued to
the Initial Members, additional units of Membership Interest or classes thereof
from time to time to Members or to other Persons and to admit them to the
Company as additional Members, provided that the Board obtains the unanimous
consent of the Members prior to any such issuance.
5
IV. PROFITS. LOSSES AND DISTRIBUTIONS
4.01 Profit and Loss. "Profit" and "Loss" shall mean for each fiscal
year of the Company or other period, an amount equal to the Company's taxable
income or loss for such year or other period, as determined by the Company's
Accountants in accordance with Code Section 703(a), and including, without
limitation, each item of Company income, gain, loss, or deduction which must be
separately stated pursuant to Code Section 703(a), taking into account the
following adjustments:
(a) all income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Profit or Loss
shall be added to such taxable income or loss;
(b) any expenditure of the Company described in Code Section
705(a)(2)(B), or treated as such an expenditure and not otherwise taken into
account in computing Profit or Loss, shall be subtracted from such taxable
income or loss;
(c) notwithstanding any other provision of this Agreement, any
items of Company income, gain, loss or deduction which are required to be
specially allocated shall not be taken into account in computing Profit and
Loss; and
(d) with respect to property contributed to the Company, or
(at the option of the Board) any increase or decrease in the Capital Accounts of
the Members to reflect a revaluation of Company property in accordance with the
provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(f), the calculation
of Profit and Loss shall be made by taking into account book basis and book
depreciation, if any, in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(g)(3), rather than tax depreciation which would be taken into
account in accordance with Code Section 703(a). Profit and Loss for all purposes
of this Agreement shall be determined in accordance with the accrual method of
accounting, except that any adjustments made pursuant to Code Section 754 shall
not be taken into account. Except as otherwise specifically required by this
Agreement or the Code, every item of income, gain, loss, deduction, credit, or
tax preference entering into the computation of such Profit and Loss shall be
considered allocated to each Member in the same proportion as Profit and Loss is
allocated to such Member.
Generally, expenditures for goods and services incurred by Members and approved
by the Board shall be reimbursed by and charged to the Company at an amount
equal to the cost incurred by the Member or Members in providing such goods and
services; provided, however, that the provision of funds by the Bank for
mortgage loans made or arranged by the Company shall be taken into account by
the Company for purposes of determining its Profit or Loss based on an interest
rate equal to the Bank's prime rate minus one-half (1/2) percent.
4.02 Allocation of Profit and Loss. Except as otherwise required
under the Code, all Profit or Loss shall be allocated to the Members in
accordance with the following rules:
6
(a) After making the special allocations required by Section
4.02(c), (d) and (e) of this Agreement, if any, whenever the aggregate Capital
Account balances of the Members will represent a positive number after
allocation of Profit or Loss for the taxable year or other period, Profit or
Loss for such year or other period shall be allocated so as to produce, as
nearly as possible, positive Capital Account balances for each Member which
correspond to the amounts each Member would receive in a hypothetical
distribution of the proceeds of a liquidation of the Company in accordance with
the priorities set forth in Section 4.03(b)(ii) in a case where :he aggregate
amount of such proceeds equals the aggregate positive Capital Account balances
of the Members.
(b) After making the special allocations required by Section
4.02(c), (d) and (e) of this Agreement, if any, whenever the aggregate Capital
Account balances of the Members will represent zero or a negative number after
allocation of Profit and Loss for the taxable year or other period, Profit or
Loss for such year or other period shall be allocated so as to produce, as
nearly as possible, zero Capital Account balances for all the Members, or
negative Capital Account balances of the Members which are proportionate to
their units, as the case may be.
(c) Items of income, gain, loss and deduction for federal
income tax purposes with respect to any property contributed to the Company or
any property which has been revalued in accordance with the provisions of
Treasury Regulation Section 1.704-1(b)(2)(iv)(f), shall be allocated among the
Members so as to take into account any variation between the adjusted tax basis
of such property to the Company and the book basis of such property, in
accordance with Code Section 704(c) and applicable Regulations thereunder.
Without limiting the foregoing, the Company will allocate items of income, gain,
loss and deduction with respect to the property contributed to the Company by
the Principals upon formation of the Company under Treasury Regulation Section
1.704-3(b).
(d) In the event that any Member receives an unexpected
adjustment, allocation or distribution as described in Treasury Regulation
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), which results in such Member's
Capital Account deficit balance being in excess of the amount such Member is
obligated or treated as obligated to restore, such Member shall be allocated
items of income and gain in an amount and manner sufficient to eliminate such
excess deficit balance as quickly as possible. This provision is intended as a
"qualified income offset" as defined in Treasury Regulation Section
1.704-1(b)(2)(ii)(d).
(e) Income from cancellation of indebtedness of the Company,
if any, shall be allocated to the Members in accordance with their respective
shares of such indebtedness determined under Code Section 752 and applicable
Treasury Regulations thereunder immediately prior to such cancellation. To the
extent any such income is not recognized by such Members pursuant to Code
Section 108, the basis of Company properly shall be reduced in accordance with
any reduction in the basis of such Members' interests in the Company pursuant to
Code Sections 108(b) and 1017, and such Members shall not elect to reduce the
basis of depreciable
7
property before reducing other tax attributes of such Members. The Capital
Accounts of any such Members shall be reduced to reflect any such reduction in
the basis of Company property in accordance with the reduction in their
respective bases in their interests in the Company.
4.03 Distributions.
(a) Distributions of cash and/or other assets or property of
the Company, from whatever source (including, without limitation, net proceeds
of Company operations and sale, financing or refinancing of Company assets)
shall be made to the Members at such times, and in such amounts, as the Board,
in it sole discretion, shall determine. In making such determination, the Board
may set aside funds and establish reserves for such items as the Board shall, in
its sole discretion, determine, including, without limitation, working capital,
maintenance of bonding capacity, capital expenditures, acquisition of other
assets by the Company and the satisfaction of liabilities (including, without
limitation, contingent liabilities) as they may come due.
(b) (i) All distributions that are determined by the Board to
be distributions of operating cash flow shall be made in the following order and
priority: (A) first, in payment of principal of and accrued interest on loans,
if any, to the Company from Members (notwithstanding that such principal or
interest may not be due and payable at such time), in order of priority and in
proportion to the amounts of principal and accrued interest outstanding on all
such loans of equal priority; and (B) second, to the Members pro rata according
to the number of units of Membership Interest held by each Member.
(ii) All distributions that are determined by the Board
to be distributions of the proceeds of capital shall be made in the following
order and priority: (A) first, in payment of principal of and accrued interest
on loans, if any, to the Company from Members (notwithstanding that such
principal or interest may not be due and payable at such time), in order of
priority and in proportion to the amounts of principal and accrued interest
outstanding on all such loans of equal priority; (B) second, to the Members in
proportion to their relative Unrepaid Capital Contributions, determined by
multiplying the total distribution by a fraction, the numerator of which is the
Unrepaid Capital Contribution of the Member and the denominator of which is the
aggregate Unrepaid Capital Contributions of all Members at the time of such
distribution; and (C) third, to the Members pro rata according to the number of
units of Membership Interest held by each Member.
(c) Any amount paid by the Company for or with respect to any
Member on account of any withholding tax or other tax payable with respect to
the income, profits or distributions of the Company pursuant to the Code, the
Treasury Regulations, or any state or local statute, regulation or ordinance
requiring such payment (a "Withholding Tax Act") shall be treated as a
distribution to such Member for all purposes of this Agreement, consistent with
the character or source of the income, profits or cash which gave rise to the
payment or withholding obligation. To the extent that the amount required to be
remitted by the Company
8
under the Withholding Tax Act exceeds the amount then otherwise distributable to
such Member under subsection 4.03(b), the excess shall constitute a loan from
the Company to such Member (a "Tax Payment Loan") which shall be payable upon
demand and shall bear interest, from the date that the Company makes the payment
to the relevant taxing authority, at the lowest rate required to avoid the
imputation of interest under applicable provisions of the Code. So long as any
Tax Payment Loan or the interest thereon remains unpaid, the Company shall make
future distributions due to such Member under this Agreement by applying the
amount of any such distribution first to the payment of any unpaid interest on
all Tax Payment Loans of such Member and then to the repayment of the principal
of all Tax Payment Loans of such Member. The Board shall have the authority to
take all actions necessary to enable the Company to comply with the provisions
of any Withholding Tax Act applicable to the Company and to carry out the
provisions of this subsection. Nothing in this subsection shall create any
obligation on the Company to borrow funds from third parties in order to make
any payments on account of any liability of the Company under a Withholding Tax
Act.
4.04 Guaranteed Payments. The Company shall make payments to any
Member or Members as "guaranteed payments" for services as determined at the
discretion of the Board from time to time or pursuant to any compensation
agreement which may be entered into between the Company and the Member or
Members to whom such payment is to be made.
V. MANAGEMENT POWERS, DUTIES AND RESTRICTIONS
5.01 Management by Managers.
(a) The management of the business and affairs of the Company
shall be vested in the Board which shall consist of four Managers. Except for
those matters in which the approval of the Members is required by this Agreement
and/or by nonwaivable provisions of applicable law, the Board shall have all
rights and powers and shall make all decisions affecting the Company in
furtherance of the Company's purposes, including, but not limited to, the
following:
(i) to retain all or any part of the Company's assets as
long as they deem advisable, and to invest, reinvest and keep invested all or
any part thereof, without being restricted in any way with respect to the type
of assets retained or invested in or with respect to the portion of the assets
devoted to any investment;
(ii) to purchase, lease or otherwise acquire the
ownership, use or benefit of assets, properties, rights or privileges, real or
personal, tangible or intangible, of any kind or description, whether income
producing or not;
9
(iii) to sell, pledge, mortgage, lease without limit of
time, exchange, or to grant options for the purchase, lease or exchange of any
Company assets, on such terms and conditions as the Board may determine;
(iv) to vote at any election or meeting of any
corporation, partnership, limited liability company, joint venture or other
asset, in person or by proxy and to appoint agents to do so in their place and
stead;
(v) to borrow money for any purpose which they consider
to be for the benefit of the Company or to facilitate its administration, and to
mortgage or pledge Company assets to secure the repayment thereof, provided,
however, that without the prior written approval of all Members, the Board may
borrow funds only if liability to the lender is limited to the assets of the
Company, the Members being specifically exonerated and released from any
personal liability;
(vi) to retain and pay a custodian, Accountants,
counsel, brokers and other agents and to incur any other expenses which are
reasonably related to the operation of the Company;
(vii) to establish a brokerage account, and to hold or
register assets in the name of a broker, nominees, the nominees of their
custodian or broker/or their agent or their agent's custodian, or in bearer
form, without disclosing any Company or fiduciary relationship; and
(viii) to invest in time deposits and savings accounts
and to maintain banking accounts in any institutions determined by them.
(b)The Board shall manage the business and affairs of the
Company and exercise its powers through (i) meetings and consents as set forth
in Sections 5.06 and 5.07; (ii) through committees pursuant to Section 5.10;
and (iii) through Officers (as hereinafter defined) to whom authority and duties
have been delegated pursuant to Section 5.12.
(c) Notwithstanding the provisions of Sections 5.01(a) and
(b), the Board may not cause the Company to take the actions described in this
subsection unless the requisite Member vote as set out below for each such
action is obtained:
(i) The affirmative vote of all of the Members shall be
required to:
(A) amend the Certificate; provided, however, that
where the amendment, (x) restates without change all of the operative provisions
of the Certificate as theretofore in effect, (y) changes the name or the
registered office of the Company, or (z)
10
accomplishes any combination of the foregoing purposes, Board action alone shall
be sufficient to authorize such amendment;
(B) amend this Agreement;
(C) authorize a Manager, Member or other Person to
do any act on behalf of the Company that contravenes the Certificate or any
written provision of this Agreement;
(D) approve the dissolution of the Company;
(E) approve the issuance of additional units of
Membership Interest or classes thereof; and
(F) incur any indebtedness on behalf of the
Company other than indebtedness incurred in the ordinary course of the Company's
business operations.
(ii) After a plan of merger or consolidation is approved
and proposed by the Board, the affirmative vote of the Member(s) holding a
majority in interest of all votes entitled to be cast at a meeting at which such
action is proposed shall be required in order to adopt, approve and confirm such
plan as the action of the Company; provided, however, that where (A) the plan,
whether or not the Company is the surviving company, does not alter the status
of the Company as a domestic limited liability company or alter in any respect
the provisions of the Certificate or this Agreement, except changes that may be
made without actions by the Members, or (B) each unit of Membership Interest
outstanding immediately prior to the effective date of the merger or
consolidation is to continue as or to be converted into, except .as may be
otherwise agreed by the holder thereof, an identical membership interest in the
surviving or new company after the effective date of the merger or
consolidation, Board action alone shall be sufficient to authorize the action.
(iii) After a plan of division is approved and proposed
by the Board, the affirmative vote of the Member(s) holding a majority in
interest of all votes entitled to be cast at a meeting at which such action is
proposed shall be required in order to adopt, approve and confirm such plan as
the action of the Company; provided, however, that where such plan does not
alter the state of organization of the Company, nor amend in any respect the
provisions of the Certificate or this Agreement, except amendments which may be
made without action by the Members, and (A) the Company, on the effective date
of the division, has only one class of membership interests and the membership
interests and other securities, if any, of each company resulting from the plan
are distributed pro rata to the Members, (B) the Company survives the division
and all the membership interests and other securities and obligations, if any,
of all new companies resulting from the plan are owned solely by the Company, or
(C) the transfers of assets effected by the division, if effected by means of a
sale, lease, exchange, or other
11
disposition, would not require the approval of the Members, Board action alone
shall be sufficient to authorize the action.
(iv) After a plan to sell all or substantially all of
the assets of the Company is approved and proposed by the Board, the affirmative
vote of the Members holding a majority in interest of all votes entitled to be
cast at a meeting at which such action is proposed shall be required to adopt,
approve and confirm such plan as the action of the Company
5.02 Qualification and Selection of Managers: Initial Managers.
(a) Each Manager shall be a natural person of full age who
need not be a resident of the Commonwealth of Pennsylvania or a Member.
(b) Except as otherwise provided in this Agreement, Managers
shall be elected by the Members. In elections for Managers, voting need not be
by ballot, except upon demand made by a Member entitled to vote at the election
and before the voting begins. The candidates receiving the highest number of
votes cast in an election for Managers up to the number of Managers to be
elected in such election shall be elected. Notwithstanding the foregoing, as
long as ▇▇▇▇▇, Crits and the Bank' hold units of Membership Interest as set
forth in Section 3.03, ▇▇▇▇▇ and Crits shall each be entitled to designate one
Manager, and the Bank shall be entitled to designate two Managers.
(c) The initial Managers shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇.
Crits, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ shall serve as the Chairman of
the Board. The Bank shall, as long as the Bank is a Member, have the right to
designate which Manager shall serve as Chairman of the Board.
5.03 Term of Office: Resignation.
(a) Each Manager shall hold office until the next annual
meeting of Members and until a successor shall have been elected and qualified
or until such Manager's earlier death, resignation or removal.
(b) Any Manager may resign at any time upon written notice to
the Company. The resignation shall be effective upon receipt thereof by the
Company or at such subsequent time as shall be specified in the notice of
resignation.
5.04 Vacancies
(a) Except as provided in subsection 5.05(a), vacancies in the
Board may be filled by a majority vote of the remaining members of the Board
though less than a quorum, or by a sole remaining Manager, and each person so
selected shall be a Manager to
12
serve for the balance of the unexpired term, and until a successor has been
selected and qualified or until his or her earlier death, resignation or
removal.
(b) When one or more Managers resign from the Board effective
at a future date, the Managers then in office, including those who have so
resigned, shall have power by the applicable vote to fill the vacancies, the
vote thereon to take effect when the resignations become effective.
(c) Notwithstanding any provision of this Section 5.04 to the
contrary, as long as ▇▇▇▇▇, Crits and the Bank hold units of Membership Interest
as set forth in Section 3.03, if the Manager designated by ▇▇▇▇▇ or Crits ceases
to be a Manager for any reason, ▇▇▇▇▇ or Crits, as the case may be, shall have
the exclusive right to designate a replacement Manager to fill the vacancy, and
if either or both of the Managers designated by the Bank ceases to be a Manager
for any reason, the Bank shall have the exclusive right to designate a
replacement Manager to fill the vacancy or vacancies.
5.05. Removal of Managers.
(a) Except as otherwise provided in this Agreement, the entire
Board or any individual Manager(s) may be removed from office without assigning
any cause upon the affirmative vote of the Member(s) holding a majority in
interest of all votes entitled to be cast at a meeting at which the removal of
the entire Board or any individual Manager(s) is proposed. In case the Board or
any one or more Managers are so removed, new Managers may be elected by the
Members at the same meeting.
(b) The Board may declare vacant the office of a Manager who
has been judicially declared of unsound mind or who has been convicted of an
offense punishable by imprisonment for a term of more than one year or if within
60 days after notice of his or her selection, the Manager does not accept the
office either in writing or by attending a meeting of the Board. In case the
office of any one or more Managers has been so declared vacant, the remaining
Member(s) of the Board may fill the vacant office(s) in the manner described in
Section 5.04.
(c) Notwithstanding any provision of this Section 5.05 to the
contrary, as long as ▇▇▇▇▇, Crits and the Bank hold units of Membership Interest
as set forth in Section 3.03, only ▇▇▇▇▇ or Crits, as the case may be, shall
have the authority to remove the Manager designated by ▇▇▇▇▇ or Crits, and only
the Bank shall have the authority to remove either or both of the Managers
designated by the Bank.
5.06 Meetings.
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(a) Regular meetings of the Board shall be held at least
annually at such time and place, either within or without the Commonwealth of
Pennsylvania, as shall be designated from time to time by the Board.
(b) Special meetings of the Board shall be held whenever
called by two or more of the Managers at such place, either within or without
the Commonwealth of Pennsylvania, as the Managers calling the meeting shall
designate.
5.07 Quorum: Action by the Managers.
(a) Presence in person or by proxy of all the Managers shall
constitute a quorum for the transaction of business of the Board. The presence
in person or by proxy of all Managers of any committee of the Board shall
constitute a quorum for the transaction of business of such committee.
(b) Each Manager shall have one vote at meetings of the Board
or of any committee hereof Any action approved by a majority of votes of
Managers, either in person or by proxy, shall be the act of the Board or of such
committee.
(c) Any action required or permitted to be taken pursuant to
authorization voted at a meeting of the Board, or any committee thereof, may be
taken without a meeting if, prior or subsequent to the action, a consent or
consents in writing thereto by all of the Managers on the Board or such
committee, as the case may be, is filed with the minutes of the proceedings of
the Board or such committee.
5.08 Participation in Meeting by Conference Telephone. Where
appropriate communication facilities are reasonably available, any or all
Managers shall have the right to participate in all or any part of a meeting of
the Board or any committee thereof by means of conference telephone or any means
of communication by which all persons participating in the meeting are able to
hear each other.
5.09 Compensation of Managers. The Board shall have the authority to
establish compensation of Managers for services to the Company.
5.10 Committees. The Board may appoint from among its members an
executive committee and one or more other committees, each of which shall have
one or more members. Any committee, to the extent provided by the Board, shall
have and may exercise all of the power and authority of the Board, except that
no such committee shall have any power or authority with respect to the
following;
(a) the submission to Members of any action requiring approval
of the Members;
14
(b) the creation or filling of vacancies on the Board;
(c) the amendment or repeal of any Board action that by its
terms is amendable or repealable only by the Board; and
(d) action on matters committed by the board to another
committee thereof
5.11 Proxies. Every Manager may authorize by proxy another Manager
to act for him at a meeting of the Board or of any committee thereof. Every
proxy shall be executed in writing by the Manager or his agent, except that a
proxy may be given by a Manager or his agent by any means of electronic
communication which results in a writing. All proxies shall be revocable at
will. A grant of a later proxy shall revoke an earlier proxy.
5.12 Officers.
(a) The Board shall have the power and authority to appoint
individuals ("Officers") to provide various services to the Company similar to
those provided to a corporation by its officers. Officers shall be charged with
such duties, given such authority and compensated as the Board shall deem
appropriate.
(b) Any Officer may resign at any time upon written notice to
the Company. The resignation shall be effective upon receipt thereof by the
Company or at such subsequent time as may be specified in the notice of
resignation.
(c) An Officer shall serve the Company for a period of time
deemed appropriate by the Board and until a successor, if any, has been
appointed and qualified or until such Officer's earlier death, resignation or
removal.
(d) Any Officer may be removed by the Board with or without
cause. Any such removal, however, shall be without prejudice to any contract
rights of the Officer so removed. Appointment of an Officer shall not of itself
create contract rights.
(e) Notwithstanding any provision of this Section 5.12 to the
contrary, as long as ▇▇▇▇▇, Crits and the Bank hold units of Membership Interest
as set forth in Section 3.03, ▇▇▇▇▇ shall serve as the President of the Company
and Crits shall serve as the Vice President of the Company, unless the Board, by
unanimous agreement, appoints different Officers.
(f) Unless their authority is limited by the unanimous action
of the Board, third parties shall be entitled to rely on the authority of ▇▇▇▇▇
and Crits, in their capacity as Officers, to take any actions on behalf of the
Company for which they are granted authority hereunder.
15
5.13 Appointment of Employees and Agents. In addition to the
employment provided for in Section 5.12, the Board may appoint, employ, contract
or otherwise deal with any Persons for the transaction of the business of the
Company, which Persons may, under supervision of the Board, perform any acts or
services for the Company as the Board may approve.
VI. MEMBERS' MEETINGS
6.01 Place of Members' Meetings. Meetings of Members may be held at
such place, within or without the Commonwealth of Pennsylvania, as shall be
designated by the Board in the notice of the meeting. If no such place is
designated by the Board, all meetings of the Members shall be held at the
principal office of the Company.
6.02 Special Meetings. Special meetings of the Members may be called
at any time by (a) the Board or (b) the Member(s) entitled to cast at least 20%
of the votes that all Members are entitled to cast at the particular meeting.
6.03 Notice of Members' Meetings
(a) Written notice of the time and place of each annual
meeting of the Members, and of the time, place and purpose(s) of each special
meeting of the Members, shall be given not less than ten nor more than 60 days
before the date of the meeting, either personally, by facsimile or by mail, to
each Member of record entitled to vote at the meeting.
(b) When a meeting is adjourned to another time or place, it
shall not be necessary to give notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken and at the adjourned meeting only such business is
transacted as might have been transacted at the original meeting, unless a
quorum is no longer present at the time of the adjourned meeting. However, if
after the adjournment the Board fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Member of
record on the new record date entitled to notice thereof
6.04 Waiver of Notice. Notice of a meeting need not be given to any
Member who signs a waiver of such notice, whether before or after the meeting.
The attendance of any Member at a meeting, without protesting prior to the
conclusion of the meeting the lack of notice of' such meeting, shall constitute
a waiver of notice by such Member.
6.05 Quorum.
16
(a) A meeting of Members shall not be organized for the
transaction of business unless a quorum is present. The presence of all Members
entitled to vote at a meeting shall constitute a quorum.
(b) The Members present at a duly organized meeting can
continue to do business until adjournment notwithstanding the withdrawal of
enough Members to leave less than a quorum.
6.06 Voting.
(a) Unless otherwise provided by law or this Agreement,
whenever any action is to be taken by vote of the Members, it shall be
authorized by a majority of the votes cast at a duly organized meeting of
Members by the Members entitled to vote thereon. At any such meeting, each
Member shall be entitled to cast that number of votes equal to the number of
units of Membership Interest held by such Member.
(b) The Company shall keep at its principal office or its
registered office, a record or records containing the names and addresses of all
Members and the numbers of units of Membership interest held by them. The list
shall be produced (or be available by means of a visual display) at the time and
place of the meeting, be subject to the inspection of any Member for reasonable
periods during the meeting and be prima facie evidence as to who are the Members
entitled to examine such list or to vote at any meeting.
(c) The Board shall fix a date as record date for determining
the Members entitled to vote at any meeting of Members or adjournment thereof or
entitled to give a written consent without a meeting, `provided that such record
date shall not be more than 60 or less than ten days prior to the meeting or
Company action or event to which it relates.
6.07 Consent of Members in Lieu of Meeting.
(a) Any action required or permitted to be taken at a meeting
of the Members may be taken without a meeting it prior or subsequent to the
action, a consent or consents in writing thereto by all of the Members who would
be entitled to vote at a meeting for such purpose shall be filed with the
minutes of the proceedings of the Members.
(b) Any action required or permitted to be taken at a meeting
of the Members may be taken without a meeting upon the written consent of
Member(s) who would have been entitled to cast the minimum number of votes that
would be necessary to authorize the action at a meeting at which all Members
entitled to vote thereon were present and voting. `The consent(s) shall be filed
with the minutes of the proceedings of the Members. The action shall not become
effective until after at least ten days' written notice of the action has been
given to each Member entitled to vote thereon who has not consented thereto.
17
VII.TRANSFERS OF MEMBERSHIP INTERESTS: WITHDRAWAL OFF MEMBERS
7.01 Restrictions on Transfers of Units of Membership Interest.
(a) Except as otherwise provided in this Agreement, no units
of Membership Interest or any rights with respect thereto may be sold, assigned,
transferred, given, bequeathed, donated, mortgaged, pledged, attached, levied
upon, seized by or for creditors, or otherwise encumbered or disposed of whether
by act of the Member or by operation of law (any such action hereinafter
referred to as a "Transfer"), without the prior written consent of other
Member(s) holding a majority of the units of Membership Interest, exclusive of
those of the Member seeking to effectuate the Transfer. Notwithstanding the
foregoing, the Bank shall have the right to transfer all or a portion of its
units of Membership Interest to any entity which, for federal income tax
purposes, is part of an affiliated group of corporations filing a consolidated
federal income tax return with the Bank (such group of corporations being
referred to herein as the "Bank Consolidated Group"), or which would be a member
of the Bank Consolidated Group if such entity were a corporation, or to any
person or entity if such transfer is made pursuant to a transaction involving
the sale of all or substantially all of the assets or business operations of the
members of the Bank Consolidated Group.
(b) Every unit of Membership Interest which is transferred in
accordance with the terms hereof shall remain subject to all of the terms and
conditions of this Agreement; and no Transfer, even though otherwise authorized
or permitted hereunder, shall be recognized as effective for any purpose
whatsoever unless the Person (or if he lacks legal capacity, some other Person
whose actions are legally binding on his behalf) acquiring the units of
Membership Interest has:
(i) agreed to assume all the obligations of his
predecessor accruing from and after the effective date of the Transfer under
this Agreement with respect to the units of Membership Interest transferred; and
(ii) delivered to the Board a written statement, in form
and substance satisfactory to the Board, acknowledging the assumption of the
transferror's obligations under this Agreement and that the transferee has read
the provisions of this Agreement and intends to be legally bound as a Member by
all the terms and conditions of this Agreement and any amendments or
modifications thereof, and executed a counterpart of this Agreement as then in
effect.
7.02 Withdrawal and Management Deadlocks.
(a) Withdrawal of Member. Any Member may withdraw from the
Company at any time. Any Member who withdraws from the Company (a "Withdrawing
Member") shall be subject to certain provisions limiting the Member's activities
which compete with continuing operation of the Mortgage Business by the Company,
as set forth in the
18
Restrictive Covenant. The Withdrawing Member's units of Membership Interest
shall be deemed to have been relinquished to the Company in exchange for a
Liquidation Payment.
(i) Withdrawal on Account of Permanent Disability or
Death. In the event of the death or "Permanent Disability" of a Member, the
Member shall be deemed to have withdrawn as a Member in the Company, and the
Company shall make a Liquidation Payment with respect to such Member's units of
Membership Interest equal to the Fair Market Value of such Member's units of
Membership Interest either in up to three annual installments, with the first
installment payable no later than 60 days following the date of the Member's
death, and subsequent installments bearing interest at a variable rate per annum
at all times equal to the prime rate of interest published in The Wall Street
Journal, or in a lump sum at the option of the Company. For purposes of this
Agreement, the term "Permanent Disability" means a condition qualifying as a
permanent disability or as a long term disability under the terms of any
disability plan or insurance policy covering employees of the Company or it
affiliates, or, if no such plan or policy is then in effect, a condition which
is treated as a long term disability entitling the Member to federal social
security disability benefits.
(ii) Withdrawal on Account of Termination of Membership
by Member Without the Unanimous Consent of the Board. In the event any Member
voluntarily, and without the unanimous consent of the Board, ceases to provide
services to the Company under the terms of a Compensation Agreement between the
Member and the Company or otherwise withdraws from the Company (such Member
being referred to herein as a "Terminated Member"), such Terminated Member's
Liquidation Payment shall be equal to the Book Value of his units of Membership
Interest.
(A) If a Member is performing services for the
Company pursuant to the terms of a Compensation Agreement and the Company
terminates the services of the Member under the Compensation Agreement for
"Cause" (as hereinafter defined), the Member shall be treated as having
voluntarily withdrawn from the Company without approval by the Board and shall
be subject to this subparagraph 7.02(a)(ii).
(B) The Book Value of the Company shall be deemed
to be $0 during the first full year of operation of the Mortgage Business.
(C) "Cause" shall have the same meaning as set
forth in the Compensation Agreement between the Company and ▇▇▇▇▇ or Crits, as
the case may be. Whether Cause has occurred shall be determined by a majority
vote of the Board, or, if any members of the Board allege that Cause has
occurred, but the majority of the Board does not confirm that Cause has
occurred, a determination as to whether Cause has occurred shall be determined
by binding arbitration in Philadelphia, PA by one arbitrator in accordance with
the Commercial Arbitration Rules of the American Arbitration Association ("AAA")
except that (a) every person named on all lists of potential arbitrators shall
be a neutral and impartial lawyer with excellent academic and professional
credentials (i) who is or has been practicing law for at
19
least 15 years, specializing in either general commercial litigation or general
corporate and commercial and (ii) who has had experience, and is generally
available to serve, as an arbitrator, and (b) each party shall be entitled to
strike on a peremptory basis, for any reason or no reason, any or all of the
names of potential arbitrators on any list submitted to the parties by the AAA
and any person selected by the AAA to serve as an arbitrator by administrative
appointment. In the event the parties cannot agree on a mutually acceptable
arbitrator from the one or more lists submitted by the AAA within 30 days after
the AAA transmits to the parties its first list of potential arbitrators, the
President of the Philadelphia Bar Association shall designate three persons who,
in his or her opinion, meet the criteria set forth herein, which designees may
include persons named on any list submitted by the AAA. Bach party shall be
entitled to strike one of such three designees on a peremptory basis within 10
days after its receipt of such list of designees, indicating its order of
preference with respect to the remaining designees. If two of such designees
have been stricken by the parties, the unstricken designee shall be the
arbitrator. Otherwise, the selection of the arbitrator shall be made by the APIA
from the remaining designees in accordance with their mutual order of
preference, or by random selection in the absence of a mutual order of
preference. The arbitrator(s) shall base the determination of whether Cause has
occurred on applicable law and judicial precedent and, unless both parties agree
otherwise, shall include in such award the findings of fact and conclusions of
law upon which the decision is based. Judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof
(b) Management Deadlock. At any time, ▇▇▇▇▇ and Crits (acting
together) or the Bank may declare that a "Deadlock" in the management of the
Company has occurred and that the Member or Members declaring the Deadlock (the
"Notifying Member or Members") have determined that they are no longer willing
to operate the Mortgage Business as Members of the Company along with the other
Member or Members (the "Responding Member or Members"). Notwithstanding the
preceding sentence, at any time following the withdrawal of either ▇▇▇▇▇ or
Crits as a Member, the remaining Member, either ▇▇▇▇▇ or Crits, as the case may
be, shall have the right to declare a Deadlock be (acting alone). Notice of
Deadlock must be in the form of a written notice provided by the Notifying
Member or Members to the Responding Member or Members and the Responding
Members' principal place of business, which shall, with respect to ▇▇▇▇▇ and
Crits, be the principal place of business of the Company, and, with respect to
the Bank, shall be the principal place of business of the Bank. Once a Deadlock
has been declared by the Notifying Member or Members, the Members have the
following rights and obligations:
(i) Election by Responding Member or Members. Upon
receipt of the notice of Deadlock, the Responding Member or Members shall have
the option to purchase all, but not less than all, of the units of Membership
Interest of the Notifying Members for a payment equal to the Fair Market Value
of those units. The Responding Member or Members must indicate their election to
purchase the units of Membership Interest of the Notifying Members in writing no
later than 10 business days following their receipt of the notice of Deadlock.
20
(ii) Election by Notifying Member or Members. If the
Responding Member or Members do not exercise the option to purchase the units of
Membership Interest of the Notifying Member or Members, the Notifying Member or
Members shall have the option to purchase all, but not less than all, of the
units of Membership Interest of the Responding Member or Members for Fair Market
Value. The Notifying Member or Members must indicate their election to purchase
the units of Membership Interest of the Responding Members in writing no later
than 10 business days following the last day the Responding Member or Members
could have elected to purchase the units of Membership Interest of the Notifying
Members.
(iii) No Election by Notifying or by Responding Members.
If neither the Notifying Member or Members nor the Responding Member or Members
elect to purchase the units of Membership Interest of the other Members, all of
the Members shall be obligated to use their best efforts and to cooperate to
sell the Mortgage Business and liquidate the Company, or to sell all of their
units of Membership Interest. If the Mortgage Business or 100% of the Members'
units of Membership Interest is sold, all of the Members will, if requested by
the purchaser or purchasers of the Mortgage Business or of units of Membership
Interest, be bound by an agreement not to compete having the same provisions
limiting competition as are required under the Joint Restrictive Covenant for a
period of one year following the date of the sale transaction.
(iv) Fair Market Value and Restrictive Covenant. If, as
a result of a Deadlock, either the Notifying Member or Members or the Responding
Member or Members purchase the units of Membership Interest of the other
Member(s), resulting in the purchase of the units of Membership Interest ▇▇▇▇▇
and/or Crits by the Bank, the following provisions shall be applicable:
(A) If an appraiser or appraisers is/are engaged
for the purpose of determining the net Fair Market Value of the Company, the
appraiser(s) shall determine its net Fair Market Value without taking into
account the services of ▇▇▇▇▇ and/or Crits, as the case may be) but taking into
account the value to the Mortgage Business of the applicable provisions of the
Restrictive Covenant.
(B) ▇▇▇▇▇ and/or Crits, following the purchase of
their units of Membership Interest by the Bank shall be subject to the
provisions of the Joint Restrictive Covenant without regard to any other
conditions (e.g., the conduct of any business by ▇▇▇▇▇ and Crits together) which
would otherwise be required to have occurred for the Joint Restrictive Covenant
to be in effect.
(C) Payment to ▇▇▇▇▇ and/or Crits will be made in
two equal installments (with interest at the minimum rate required to avoid
imputed interest under applicable federal tax rules), with the first installment
to be paid 60 days following the election
21
by the Bank to purchase the units of Membership Interest, and with the second
installment payable on the anniversary of the first payment date.
(v) If as a result of a Deadlock, either the Notifying
Member or Members or the Responding Member or Members purchase the units of
Membership Interest of the other Member(s), resulting in the purchase of the
Bank's units of Membership Interest, the following provisions shall be
applicable:
(A) If an appraiser or appraisers is/are engaged
for the purpose of determining the net Fair Market Value of the Company, the
appraiser(s) shall determine its net Fair Market Value without taking into
account the services of the Bank, but taking into account the value to the
Mortgage Business of the applicable provisions of the Restrictive Covenant.
(B) The Bank shall be subject to a restrictive
covenant for a period of one year, with such agreement having the same
restrictions as would be applicable to ▇▇▇▇▇ and Crits under the Joint
Restrictive Covenant.
(C) ▇▇▇▇▇ and/or Crits shall not be subject to any
provisions of the Restrictive Covenant.
(D) Payment to the Bank will be made in two equal
installments (with interest at the minimum rate required to avoid imputed
interest under applicable federal tax rules), with the first installment to be
paid 60 days following the election by the Bank to purchase the units of
Membership Interest, and with the second installment payable on the anniversary
of the first payment date.
7.03 Compliance with Securities Laws. The Members acknowledge and
confirm that the units of Membership Interest held by them may constitute
securities and that the units of Membership Interest have not been registered
under any federal or state securities laws by virtue of exemptions from the
registration provisions thereof or otherwise, and consequently cannot be sold
except pursuant to appropriate registration or exemption from registration as
applicable.
7.04 Allocations with Respect to Transferor's Interest. Upon the
assignment by a Member of all or any part of his interest in the Company to a
Person becoming a substitute Member, the net profits, net losses and credits for
the entire fiscal year of the Company during which such assignment occurred
shall be prorated between assignor and assignee on the basis of the number of
days in the fiscal year preceding and succeeding the effective time of the
assignment, regardless of the period of the year in which such profit or loss
was actually recognized or such credit became available.
7.05 Restrictive Covenant.
22
(a) Each Member (and all affiliates of each Member) shall be
subject to certain limitations on activities which would constitute competition
with the Company both during the period the Member is a Member of the Company
and for certain periods following the withdrawal of the Member from the Company.
All of the Members acknowledge that the restrictions contained in this Section
7.05 are reasonable and necessary in order to protect the legitimate interests
of Company in view of the nature of the business in which Company is engaged,
that the enforcement of these restrictions will not impose a hardship on any
Member or significantly impair the ability of any Member to earn a livelihood,
and that any violation of the restrictions set forth herein would result in
irreparable injuries to Company. Each Member, therefore, acknowledges that, in
the event of any violation of any of these restrictions, the Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Company may be entitled, and acknowledges further that, in the event there
is a violation of the restrictions set forth herein by either any Member, the
Company shall be relieved of any liability to make any payment to such Member of
any amounts otherwise payable under the terms of this Agreement or any
Compensation Agreement between the Company and such Member on or after the
occurrence of any violation of the restrictions set forth herein.
(b) Restrictive Covenant Applicable to Active Members. From
the date hereof until the date that a Member withdraws as a Member of the
Company, such Member shall not engage in any activities which are in direct
competition with the Mortgage Business, including, but not limited to, any
solicitation of existing customers of the Mortgage Business, any solicitation of
other employees of the Mortgage Business, and any solicitation of business from
any contacts which may be of value in the conduct of the Mortgage Business by
the Company.
(c) Joint Restrictive Covenant. If both ▇▇▇▇▇ and Crits
terminate their relationship with the Bank or the Company and operate another
business jointly or work together for the same employer at any time during the
one year period (the "Joint Restriction Period") commencing on the later of the
date that ▇▇▇▇▇ or Crits terminates his relationship with the Bank, both ▇▇▇▇▇
and Crits shall be subject to the restrictive covenant set forth herein as the
"Joint Restrictive Covenant." The Joint Restrictive Covenant shall be effective
until the end of the Joint Restriction Period. During the portion of the Joint
Restriction Period during which the Joint Restrictive Covenant is applicable,
▇▇▇▇▇ and Crits agree not to engage in any activities which are in direct
competition with the Mortgage Business, including, but not limited to, any
solicitation of existing customers of the Mortgage Business, any solicitation
of other employees of the Mortgage Business, and any solicitation of business
from any contacts which either ▇▇▇▇▇ or Crits used while conducting the Mortgage
Business for the Company or as employees of the Bank or any of its affiliates.
23
(d) Individual Restrictive Covenant. If either ▇▇▇▇▇ and Crits
or if both terminate their relationship with the Company or with the Bank or any
of its affiliates, but do not operate another business jointly or work together
for the same employer at any time during the Joint Restriction Period, each of
▇▇▇▇▇ and Crits will be subject to the restrictive covenant set forth herein as
the "Individual Restrictive Covenant." The Individual Restrictive Covenant shall
be effective for a period of one year (the "Individual Restriction Period")
commencing on the date ▇▇▇▇▇ or Crits, as the case may be, terminates his
relationship with The Company, the Bank or any of its affiliates. During the
Individual Restriction Period, ▇▇▇▇▇ and/or Crits, as applicable, agree not to
(a) solicit any existing or past customers of the Company or of the Mortgage
Business, or any potential customers who have already been contacted by the
Company or by such other entity as may be conducting the Mortgage Business, (b)
solicit any employees of the Company, the Bank or any of its affiliates, and (c)
become an owner (or a phantom owner) of any entity conducting a mortgage
business operation. Klaus and/or Crits, as the case may be, shall, however, not
be restricted from becoming an employee of entity conducting mortgage business
operations at any time following the termination of their relationship with the
Company, the Bank or any of its affiliates unless ▇▇▇▇▇ and Crits become subject
to the Joint Restrictive Covenant. The applicability of the individual
Restrictive Covenant to ▇▇▇▇▇ and/or Crits shall not limit the applicability of
the Joint Restrictive Covenant if the conditions causing the Joint Restrictive
Covenant to become effective occur
(e) Notwithstanding anything contained herein to the contrary,
no provisions of this Restrictive Covenant shall be effective with respect to
any Member to the extent such provisions are in conflict with any provisions of
this Operating Agreement or of any other written agreement between the parties
which explicitly limits the effectiveness of this Restrictive Covenant.
(f) If the Individual Restrictive Period or the Joint
Restrictive Period described above should be adjudged unreasonable in any
proceeding, then the applicable period of time shall be reduced by such amount
so that the restrictions set forth in this Restrictive Covenant may be enforced
for such time as is adjudged to be reasonable. If any Member violates any of the
restrictions contained in this Section 7.05, the Joint Restriction Period or the
Individual Restriction Period, as the case may be, shall be extended with
respect to the Member or Members engaged in such violation by a period equal to
the length of time from the commencement of any such violation until such time
as such violation shall be cured by such member, to the satisfaction of the
Company. The Company shall have the right and remedy to require the Member to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by such Member as the
result of any transactions constituting a breach of this Restrictive Covenant,
and such Member shall account for and pay over such amounts to the Company upon
the Company's request therefor. All Members hereby expressly consent to the
jurisdiction of any court within the Eastern District of Pennsylvania to enforce
the provisions of this Section 7.05, and agree to accept service of process by
mail relating to any such proceeding. The Company may supply a copy of this
Restrictive Covenant to any future or prospective employer, co-owner or partner
of a Member to
24
whom such Member has supplied information if the Company determines in good
faith that there is a reasonable likelihood that the Member has violated or will
violate the provisions of this Restrictive Covenant.
VIII.TERMINATION OF TITLE COMPANY
8.01 Dissolution.
(a) The Company shall be dissolved and its affairs wound up
upon the first to occur of the following:
(i) December 31, 2028;
(ii) The unanimous written agreement or consent of all
the Members to dissolve the Company;
(iii) The death, insanity, adjudication of incompetence,
Bankruptcy, retirement, expulsion or resignation of a Member, or the occurrence
of any other event which terminates the continued membership of a Member, unless
within 90 days after such event, all of the remaining Members elect to continue
the Company;
(iv) The entry of a decree of judicial dissolution; or
(v) The sale of all or substantially all of the assets
of the Company.
(b) Certificate of Dissolution. Unless There is an election to
continue the business of the Company as provided in Section 8.01 (a)(iii), then,
following the dissolution and winding up of the affairs of the Company, the
Company shall execute a Certificate of Dissolution in the form prescribed by the
Act.
8.02 Winding Up and Distributions.
(a) In the event of a dissolution of the Company pursuant to
Section 8.01, the assets of the Company shall be liquidated and, after Company
obligations have been discharged or provided for, and any reserves which the
Liquidator deems reasonably necessary to provide for contingent and unforeseen
liabilities or obligations of the Company have been established, the net
proceeds of such liquidation shall be distributed in accordance with Section
4.03.
(b) All liquidating distributions shall be made in cash or in
kind, in the discretion of the Liquidator. In connection with the sale by the
Company and reduction to cash
25
of its assets. although the Company has no obligation to offer to sell any
properties to the Members, any Member, at the option of the Liquidator, may bid
on and purchase any assets. If the Liquidator shall determine that an immediate
sale of part or all of the Company assets would cause undue loss to the Members,
the Liquidator may defer liquidation of and withhold from distribution for a
reasonable time any assets of the Company (except those necessary to satisfy the
Company's current obligations).
(c) If any assets of the Company are to be distributed in
kind, such assets shall be distributed on the basis of the fair market value
thereof and any Member entitled to any interest in such assets shall receive
such Interest therein as a tenant-in-common with all other Members so entitled.
The fair market value of such assets shall be determined by an independent
appraiser to be selected by the Liquidator.
(d) In connection with the termination of the Company, the
Company's Accountants shall prepare and furnish to each Member a statement
setting forth the assets and liabilities of the Company as of the date of
complete liquidation. After distribution of all of the assets of the Company,
the Members shall cease to be such, and the Liquidator shall cause to be
executed, acknowledged and filed all documents necessary to cancel the
Certificate and fictitious name registrations of the Company, if any, and to
terminate the Company.
(e) Following the liquidation of the Company, none of the
Members shall be subject to the provisions of Section 7.05 (the "Restrictive
Covenant").
IX. BOOKS, RECORDS AND TAX ELECTIONS
9.01 Books and Records. The Board shall cause to be kept full and
accurate books of the Company. All books and records of the Company shall be
kept at the Company's principal office and shall be available at reasonable
times for inspection and copying by the Members or their duly authorized
representatives. The books of the Company shall be kept on the accrual or cash
basis as the Board shall determine, and the fiscal period of the Company shall
also be determined by the Board. Capital accounts for each Member shall be
maintained as part of the books of the Company and the amount of profits or
losses of The Company, as well as capital contributions to the Company, and
distributions torn the Company, shall be credited or charged, as the case may
be, to the capital account of each Member. An annual statement showing the
income and expenses p f the Company (and the portion allocable to each Member),
a balance sheet of the Company at the end of the fiscal year, and a statement of
members' equity, together with all other information needed by the Members for
income tax purposes, shall be prepared by the Company's Accountants, without
audit unless otherwise determined by the Board, and furnished to each Member
within 75 days after the end of each fiscal year of the Company.
26
9.02 Tax Elections. The Board may cause the Company to make such tax
elections (including, without limitation, the election under Section 754 of the
Code) as the Board deem appropriate in its sole discretion.
9.03 Tax Matters Partner. The Bank is hereby designated as the "tax
matters partner" of the Company pursuant to ss. 6231(a)(7) of the Code.
X. INDEMNIFICATION OF MANAGERS AND AGENTS
10.01 Definitions. As used in this Article X:
(a) "Company Agent" means any Person who is or was an employee
or agent of the Company and any person who is or was a director, officer,
trustee or employee of any Other Enterprise, serving or continuing to serve as
such at the request of the Company, or the legal representative of any such
person;
(b) "Other Enterprise" means any domestic or foreign
corporation, any limited liability company other than the Company) and any
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
any other entity, whether or not for profit, served by a Company Agent;
(c) "Expenses" means reasonable costs, disbursements and
counsel fees;
(d) "Liabilities" means amounts paid or incurred in
satisfaction of judgments, fines (including any excise taxes assessed on a
person with respect to an employee benefit plan), penalties and settlements,
provided that, in the case of a settlement, the Company shall have given its
prior approval to the terms of the settlement;
(e) "Proceeding" means any pending, threatened or completed
civil, criminal, administrative or arbitrative action, suit or proceeding. and
any appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding.
10.02 Mandatory Indemnification of Managers.
(a) The Company shall indemnify each Manager against such
Manager's Expenses and Liabilities in connection with any Proceeding involving
the Manager by reason of his or her being or having been a Manager, other than a
Proceeding by or in the right of the Company. Indemnification shall be provided
by this Section, to the fullest extent permitted by Pennsylvania law, only if
such Manager acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company, and with
27
respect to any criminal Proceeding, if such Manager had no reasonable cause to
believe his or her conduct was unlawful.
(b) The Company shall indemnify, to the fullest extent
permitted by Pennsylvania law, each Manager against such Manager's Expenses in
connection with any Proceeding by or in the right, of the Company to procure a
judgment in its favor which involves the Manager by reason of his or her being
or having been a Manager, if such Manager acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the Company
The Board or a committee thereof acting by a majority
vote of Managers who were not parties to or otherwise involved in the
Proceeding, shall determine on a case by case basis, if indemnification as
described in subsection (a) or (b) above is proper in the circumstances because
the Manager met the applicable standard of conduct set forth in subsection (a)
or (b) above
(c) Notwithstanding any limitations contained in subsection
(a) and (b) above, the Company shall indemnify each Manager against such
Manager's Expenses to the extent that such Manager has been successful on the
merits or otherwise in any Proceedings or in defense of any claim, issue or
matter therein.
10.03 Optional Indemnification of Company Agents.
(a) The Company may, at its option, indemnity each Company
Agent against his or her Expenses and Liabilities in connection with any
Proceeding involving the Company Agent by reason of his or her being or having
been a Company Agent,, other than a Proceeding by or in the right of the
Company. Indemnification shall be provided by this section, to the fullest
extent permitted by Pennsylvania law, only if such Company Agent acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company, and with respect to any criminal Proceeding,
if such Company Agent had no reasonable cause to believe his or her conduct was
unlawful.
(b) The Company may, at its option, indemnify, to the fullest
extent permitted by Pennsylvania law, each Company Agent against his or her
Expenses in connection with any Proceeding by or in the right of the Company to
procure a judgment in its favor which involves the Company Agent by reason of
has or her being or having been a Company Agent, if he or she acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Company.
(c) Notwithstanding any limitations contained in subsections
(a) and (b) above, the Company may, at its option, indemnify each Company Agent
against his or her Expenses to the extent that such Company Agent has been
successful on the merits or otherwise in any Proceedings or in defense of any
claim, issue or matter therein.
28
10.04 Advances.
(a) Expenses incurred by a Manager in connection with a
Proceeding shall be paid by the Company in advance of the final disposition of
the Proceeding as authorized by the Board upon receipt of an undertaking by or
on behalf of the Manager to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified as provided in this
Article X.
(b) Expenses incurred by a Company Agent in connection with a
Proceeding may be paid by the Company in advance of the final disposition of the
Proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the Company Agent to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified as provided in this
Article X.
10.05 Insurance. The Company may purchase and maintain insurance on
behalf of any Manager or Company Agent against any Expenses incurred in any
Proceeding and any Liabilities asserted against such Manager or Company Agent by
reason of such Manager or Company Agent having been a Manager or Company Agent.
The Company may purchase such insurance from, or such insurance may be reinsured
in whole or in part by, an insurer owned by or otherwise affiliated with the
Company, whether or not such insurer does business with other insureds.
10.06 Non-Exclusivity of Rights. The rights conferred on any Manager
or Company Agent by this Article X shall not be exclusive of any other rights
which such Manager or Company Agent may have or hereafter acquire under any
statute, provision of the Certificate, agreement, vote of Members or
disinterested Managers or otherwise.
10.07 Amendment. Any repeal or modification of this Article X shall
not adversely affect any right or protection hereunder of any Manager or Company
Agent in respect of any act or omission occurring prior to the time of such
repeal or modification.
XI. GENERAL PROVISIONS
11.01 Amendments. No amendment of this Agreement shall be binding
unless such amendment is proposed in writing by the Board and all of the Members
consent in writing thereto.
11.02 Indulgences. Etc. Neither the failure nor any delay on the
part of any party hereto to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any
29
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
11.03 Controlling Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in accordance with the substantive laws of the Commonwealth of
Pennsylvania, notwithstanding any conflict-of-law provisions to the contrary.
11.04 Notices. All notices, requests, consents or other
communications provided for or permitted to be given under this Agreement shall
be in writing and shall be given either by depositing such writing in the United
States mail, addressed to the recipient, postage prepaid and registered or
certified with return receipt requested or by delivering such writing to the
recipient in person, by courier, overnight delivery service, or by facsimile
transmission. All notices, requests, consents and other communications to be
sent or delivered to the Company must be sent or delivered to the Company's
principal place of business, or the facsimile number thereof, to the attention.
of the Board, or if to a Member, must be Lent or delivered to the address or
facsimile number shown for that Member on the Company's books or at such other
address or facsimile number as that Member may specify by notice to the Company;
provided, however, that such notice of change in address or facsimile number
shall not be effective unless and until such notice is received by the Company.
11.05 Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns, except that no party may
assign or transfer its rights or obligations under this Agreement m any manner
other than as provided in this Agreement.
11.06 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
11.07 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
11.08 Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
30
11.09 Gender. Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
11.10 Number of Days. In computing the number of days for purposes
of this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
11.11 Interpretation. No provision of this Agreement is to be
interpreted for or against either party because that party or that party's legal
representative or counsel drafted such provision.
11.12 Reliance. Each party acknowledges that, in entering into this
Agreement and making any Capital Contributions pursuant hereto, he is relying
solely upon his own investigation and the contents of this Agreement and any
agreements executed concurrently herewith and not upon any statements made or
materials produced by any other party or such other parry's representatives.
11.13 Further Assurances. In addition to the documents and
instruments to be delivered as herein provided, each of the pasties hereto
shall, from time to time at the request of the Board, execute and deliver such
instruments and shall take such other action as may be required to carry out
more effectively the terms of this Agreement.
11.14 Corporate Authority. Any corporation signing this Agreement
represents and warrants that the execution, delivery and performance of this
Agreement by such corporation has been duly authorized by all necessary
corporate action and is valid and binding upon such corporation.
11.15 No Third-Party Beneficiaries. Notwithstanding anything to the
contrary contained herein, no provision of this Agreement is intended to benefit
any party other than the Company, the other signatories hereto and their
permitted successors and assigns, nor shall any such provision be enforceable by
any other party.
11.16 Waiver of Partition. Each party does hereby waive any right to
partition or the right to take any other action which might otherwise be
available to such party outside of the provisions of this Agreement for the
purpose of severing his relationship with the Company or such party's interest
in the property held by the Company from the interests of the other parties
until the end of the term of both this Company and any successor entity formed
pursuant to the terms hereof
31
11.17 Nominal Title Holder. Any or all Company property may, at the
option of the Board, be held in the name of one or more nominal title holders
chosen by the Board for the Company.
11.18 Controversies With Internal Revenue Service. In the event of
any controversy with the Internal Revenue Service or any other taxing authority
involving the Company of any Member or Members, the outcome of which may
adversely affect the Company, directly or indirectly, or the amount of
allocation of profits, gains, credits or losses of the Company to one or more
Members, the Company may, at its option, incur expenses it deems necessary or
advisable in the interest of the Company in connection with any such
controversy, including, without limitation, attorneys' and accountants' fees.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
MADISON BANK
By:
----------------------------------------
-------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. Crits
32
EXHIBIT B
COMPENSATION AGREEMENT
THIS COMPENSATION AGREEMENT, made this 5th day of May, 1998, by and
between Philadelphia Financial Mortgage Co., LLC (hereinafter called the
"Company"), and ____________________________, an individual (hereinafter called
the "Executive").
W I T N E S S E T H
WHEREAS, the Company wishes to have the Executive provide certain
services to the Company and the Executive wishes to provide such services for
the Company on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, the Company
and the Executive agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings set forth below unless the contexts otherwise requires.
"Affiliate" shall mean a person who with respect to any
entity, directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such entity.
"Base Compensation" shall mean the annual rate of compensation
set forth in Section 4(a), as such amount may be adjusted from time to time.
"Board" shall mean the Board of Managers of the Company
"Business" all mean the business conducted by the Company in
the past and on the date of execution of this agreement, including business
activities in developmental stages, business activities which may be developed
by the Company, or any subsidiary, parent or other affiliate of the Company,
during the period of the Executive's service with the Company, and all other
business activities which flow from a reasonable expansion of any of the
foregoing.
"Cause" shall mean any one or more of the following:
(a) if the Executive is convicted of a felony or a crime
involving moral turpitude or has entered a plea of nolo contendere (or similar
plea) to a charge of such an offense;
33
(b) if the Executive uses alcohol or any unlawful
controlled substance to an extent that it materially interferes with the
performance of the Executive's duties under this Agreement;
(c) if the Executive breaches or neglects the material
duties that the Executive is required to perform under the terms of this
Agreement after having been warned, in writing, by the Company of the
consequences of such specific actions;
(d) if the Executive commits any act of fraud, personal
dishonesty or deliberate misappropriation relating to or involving the Company;
(e) if the Executive repeats the violation of reasonable
and material rule(s), regulation(s), policy(ies) or plan(s) governing his
performance or express direction(s) of the Board after having been warned, in
writing, by company of the consequences of such specific violations; or
(f) if the Executive engages in the willful,
unauthorized disclosure of material confidential information concerning the
Company or its Business;
"Disability" shall have the meaning set forth in the Operating
Agreement.
"Operating Agreement" shall mean the operating agreement
governing the operations of the Company
2. Term of Service. The Company hereby engages the services of the
Executive and the Executive hereby agrees to provide such services to the
Company for the period and upon the terms and conditions specified in this
Agreement. The term of this Agreement shall commence on the date hereof (the
"Commencement Date"), and shall end as of the date the Executive ceases to be a
Member of the Company.
3. Office and Duties.
(a) The Executive shall serve as President/Vice-President. In
such capacity, the Executive shall render such services as are necessary and
desirable to protect and advance the best interests of the Company, acting, in
all instances, under the supervision of and in accordance with the policies set
by the Board.
(b) For as long as the Executive continues to provide services
to the Company, the Executive's entire working time, energy, skill and best
efforts shall be devoted to the performance of the Executive's duties hereunder
in a manner which will faithfully and diligently further the business and
interests of the Company. The Executive may engage in charitable, civic,
fraternal, trade and professional association activities that do not interfere
with
-2-
the Executive's obligations to the Company, but the Executive shall not work for
any other for profit business.
4. Base Compensation, Commissions, and Bonuses. For all of the
service rendered by the Executive to the Company, the Executive shall receive,
during the Initial Term:
(a) Base Compensation at the annual rate of Seventy Two
thousand dollars ($72,000.00) per year, payable by the Company as a "guaranteed
payment." The Base Compensation will be payable in installments in accordance
with the Company's regular payroll practices in effect from time to time during
the term of this Agreement.
(b) In addition to the foregoing compensation, the Executive
shall be eligible to receive a commission equal to 50 points for all mortgage
business originated by the Executive. Commissions, if any, will be paid to the
Executive on the last payday of each month he is providing service to the
Company for sales booked by him through the previous month. Upon the Executive's
termination of service to the Company, the Company will pay the Executive,
within thirty (30) days of such termination, his commissions, if any, on all
mortgages he originated which closed on or before his last day of actual service
with the Company.
(c) In addition to the foregoing compensation, the Executive
shall be eligible to receive an annual bonus equal to an amount, determined at
the discretion of the Board, but not less than up to 0.5% of the net profits of
the Company as determined by the accountants regularly engaged by the Company to
review or audit its financial statements.
(d) In addition to the foregoing compensation, the Executive
shall be eligible to receive additional payments as reimbursement of reasonable
automobile expenses (not in excess of $500 per month), cellular phone expenses
and other business expenses consistent with policies established with respect to
such reimbursements by the Board.
(e) Notwithstanding anything contained herein to the contrary,
the amount of the Executive's Base Compensation with respect to any period shall
be reduced by the amount of any cash compensation to the Executive that is made
by Madison Baneshares Group, Ltd. or by any subsidiary or other affiliate of
Madison Baneshares Group, Ltd. other than the Company.
5. Fringe Benefits As an inducement to the Executive to commence
service hereunder, and in consideration of the Executive's covenants under this
Agreement, the Executive shall be entitled to the benefits set forth below (the
"Fringe Benefits") daring the Term of this Agreement:
(a) The Executive shall be eligible to participate in any
health, life, accident or disability insurance, sick leave or other benefit
plans or programs made available to
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other employees of the Company, except to the extent that Executive's status as
a "partner" for federal income tax purposes prevents the Executive from
participating in such plans or programs or would cause such plans or programs to
fail to meet any applicable requirements under the Internal Revenue Code of
1986, as amended (the "Code"); and provided, further that the Executive meets
the eligibility requirements and other terms, conditions and restrictions of the
respective plans and programs.
(b) The Executive shall be entitled to four (4) weeks paid
vacation during each year, subject to the Company's generally applicable
policies relating to Vacations. The Executive shall give the Chairman of the
Board (or his or her designee) written notice at least seven (7) days prior to
the commencement of any vacation in excess of five (5) business days.
(c) The Company will reimburse the Executive for all
reasonable and necessary expenses incurred by the Executive in connection with
the performance of the Executive's duties hereunder upon receipt of
documentation therefor in accordance with the Company's regular reimbursement
procedures and practices in effect from time to time.
(d) The Executive shall be eligible to receive options to
purchase shares in Madison Bancshares Group, Ltd. to be issued under the Madison
Bancshares Group, Ltd. 1997 Stock Option Plan (the "Stock Option Plan") at an
exercise price equal to the fair market value of the shares on the date of
grant, The number of shares subject to such option shall be determined at the
discretion of the administrative committee (the "Committee") charged with
responsibility for such determinations under the terms of the Stock Option Plan.
The Executive shall be entitled to grants of options to acquire shares of
Madison Bancshares Group, Ltd. under the Stock Option Plan from time to time,
which grants shall be made at the discretion of the Committee, taking into
account all relevant facts and circumstances, and which shall be made at such
times and for such shares as it deems appropriate under all relevant facts and
circumstances, treating the Executive in a manner comparable to to other
similarly situated executives who are eligible to participate in the Stock
Option Plan.
6. Disability. If the Executive suffers a Disability, the Company
may terminate the Executive's relationship with the Company at any time
thereafter by giving the Executive ten (10) days written notice of termination.
Thereafter, the Company shall have no obligation to the Executive for Base
Compensation, Commissions, Fringe Benefits or any other form of compensation or
benefit to the Executive, except as otherwise required by law or by benefit
plans provided at the Company expense, other than (a) amounts of Base
Compensation and Commissions accrued through the date of termination, (b)
reimbursement of appropriately documented expenses incurred by the Executive
before the termination of service, to the extent that the Executive would have
been' entitled to such reimbursement but for the termination of service.
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7. Death. If the Executive dies during the Term of this Agreement,
the Term of this Agreement shall terminate as of the date of the Executive's
death. The Company shall have no obligation to the Executive or the Executive's
estate for Base Compensation, Commissions, Fringe Benefits or any other form of
compensation or benefit, except as otherwise required by law or by benefit plans
provided at the Company expense, other than (a) amounts of Base Compensation and
Commissions that have accrued through the date of the Executive's death, and (b)
reimbursement of appropriately documented expenses incurred by the Executive
before the termination of service, to the extent that the Executive would have
been entitled to such reimbursement but for the termination of service.
8. Termination for Cause. The Company may terminate the Executive's
service relationship with the Company at any time for Cause. Upon termination of
the Executive under this Section 8, the Company shall have no obligation to the
Executive for Base Compensation, Commissions, Fringe Benefits, or other form of
compensation or benefits other than (a) amounts of lease Compensation and
Commissions accrued through the date of termination, and (b) reimbursement of
appropriately documented expenses incurred by the Executive before the
termination of service, to the extent that the Executive would have been
entitled to such reimbursement but for the termination of service.
9. Termination without Cause. The Company may not terminate the
Executive's service relationship with the Company at any time without Cause
other than in connection with the withdrawal of the Executive as a Member of the
Company pursuant to the terms of the Operating Agreement.
10. Consideration. The Executive agrees and acknowledges that the
Executive is agreeing to be bound by the terms of this Agreement, in
consideration of (i) the taking and commencement of service with the Company and
(ii) the Company's agreement to pay in full all amounts due as Base
Compensation, Commissions and other amounts due after the Executive's
termination without Cause in accordance with Section 9 of this Agreement; and
the Executive further agrees and acknowledges that each of the benefits
described in clause (i) or (ii) alone constitutes full, complete and adequate
consideration for the Executive's obligations hereunder.
11. Company Property. All advertising, sales, manufacturers' and
other materials or articles or information, including without limitation data
processing reports, computer programs, software, customer information and
records, business records, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executives service hereunder, are and shall remain the sole property of the
Company, including in each case all copies thereof in any medium including
computer tapes and other forms of information storage. If the Company requests
the return of such materials at any time during or at or after the termination
of the Executive's service, the Executive shall deliver all copies of the same
to the
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Company immediately. Notwithstanding the foregoing, the Executive may retain
records relevant to the filing of the Executive's personal income taxes and the
Company shall grant the Executive reasonable access during normal business
hours, to business records of the Company relevant to the Executive's discharge
of the Executive's duties as a director of the Company or any other legitimate
non-competitive business purpose.
12. Prior Agreements. The Executive represents to the Company that
there are no restrictions, agreements or understandings, oral or written, to
which the Executive is a party or by which the Executive is bound that prevent
or make unlawful the Executive's execution or performance of this Agreement.
13. Miscellaneous.
(a) Indulgences. Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of such jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
personally delivered, on the day specified for delivery when deposited with a
recognized national or regional courier service for delivery to the intended
addressee or two (2) days following the day when deposited in the United States
mails, first class postage prepaid, addressed as set forth below:
If to the Executive (as applicable):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. Crits
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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with a copy, given in the manner prescribed above, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇, Chairman
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy, given in the manner prescribed above, to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Wolf, Block, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Build 640
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
In addition, notice by mail shall be by air mail if
posted outside of the continental United States. Any party may alter the address
to which communications or copies are to be sent by giving notice of such change
of address in conformity with the provisions of this Section for the giving of
notice.
(d) Binding Nature of Agreement. This Agreement shall be
binding upon the Company and shall inure to the benefit of the Company, its
present and future Subsidiaries, Affiliates, successors and assigns including
any transferee of the business operation, as a going concern, to which the
Executive provides services or in which the Executive is otherwise employed and
shall be binding upon the Executive, the Executive's heirs and personal
representatives. None of the rights or obligations of the Executive hereunder
may be assigned or delegated, except that in the event of the Executive's death
or Disability, any rights of the Executive hereunder shall be transferred to the
Executive's estate or personal representative, as the case may be. The Company
may assign its rights and obligations under this Agreement in whole or in part
to any one or more Affiliates or successors, but no such assignment shall
relieve the Company of its obligations to the Executive if any such assignee
fails to perform such obligations.
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(e) Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the service of the
Executive with the Company, and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions, express or implied,
oral or written, except as herein contained. The express terms hereof control
and supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof This Agreement may not be modified or amended other
than by an agreement in writing. Notwithstanding the foregoing, nothing herein
shall limit the application of any generally applicable the Company policy,
practice, plan or the terms of any manual or handbook, except to the extent the
foregoing directly conflict with this Agreement, in which case the terms of this
Agreement shall prevail.
(h) Section Headings. The Section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) Number of Days. Except as otherwise provided herein, in
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or such holiday.
(j) Gender. Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) Jurisdiction of Courts. Any legal suit, action, claim,
proceeding or investigation arising out of or relating to this Agreement may be
instituted in any state or federal court in the Eastern District of
Pennsylvania, and each of the parties hereto waives any objection which parry
may now or hereafter have to such venue of any such suit, action, claim,
proceeding or investigation, and irrevocably submits to the jurisdiction of any
such court. Any and all
-8-
service of process and any other notice in any such suit, action, claim,
proceeding or investigation shall be effective against any party if given by
registered or certified mail, return receipt requested, or by any other means of
mail which requires a signed receipt, postage prepaid, mailed to such party as
herein provided. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party in any jurisdiction
other than Pennsylvania.
(l) Survival. All provisions of this agreement which by their
terms survive the termination of the Executive's service with the Company,
including without limitation the covenants of the Executive set forth in
Sections 11 and 12 and the obligations of the Company to make any
post-termination payments under this Agreement, shall survive termination of the
Executive's service with the Company and shall remain in full force and effect
thereafter in accordance with their terms.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement in _________________________, Pennsylvania as of the date first
above written.
PHILADELPHIA FINANCIAL MORTGAGE CO., LLC.
(SEAL) By:
------------------------------------------
Name:
Title:
---------------------------------------------
Executive
[LETTERHEAD OF MADISON BANK]
March 29, 1999
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. Crits
Madison Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Agreement to Conduct Mortgage Banking Business
dated May 5, 1998 between ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
▇. Crits and Madison Bank (the "Bank") (the
"Agreement")
Dear Messrs. ▇▇▇▇▇ and Crits:
This letter agreement will amend certain provisions of the above referenced
Agreement. All terms used, but not defined herein, shall have the meanings
ascribed to them in the Agreement. This Agreement is amended in the following
manner:
1. ▇▇▇▇▇ and Crits waive the requirement that the Bank contribute
$150,000 and the Bank waives the requirement that ▇▇▇▇▇ and Crits
each contribute $50,000 to a limited liability company to conduct
the Mortgage Business (as defined in the Agreement)
2. ▇▇▇▇▇▇ and Crits and the Bank have mutually determined that the
Mortgage Business (as defined in the Agreement) pending further
agreement by the parties, shall be operated as a division of the
Bank and not as a separate limited liability company.
3 All provisions of the Agreement, except as heretofore amended,
remain in full force and effect.
Please indicate your agreement to this Amendment to the Agreement by executing
the appropriate space provided below on the original of this letter and
returning same to us.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇, President
Madison Bank
Accepted and agreed this 29 day of March, 1999.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. Crits
---------------------------------- ----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. Crits