OPERATING AGREEMENT
[MasterBuilt America, LLC]
THIS OPERATING AGREEMENT (this "Agreement") is made as of the first day of
July, 1999 (the "Effective Date"), by and between its Members, whose names and
addresses are set forth hereinbelow, for the establishment of the governance and
business operations for MasterBuilt America, LLC, a Virginia limited liability
company (the "Company"), established for the joint ownership and operation of
the Business described below.
In consideration of the mutual covenants contained in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged by all parties, the parties agree as follows:
ARTICLE I
FORMATION, PURPOSE, AND TERM
----------------------------
1.01 Formation. The Members have formed the Company as a limited liability
company pursuant to the Virginia Limited Liability Company Act (the "Act") by
causing Articles of Organization to be filed with the Virginia State Corporation
Commission ("SCC") effective on July 7, 1999, the date on which the SCC issued a
certificate of organization in respect of the Company. The rights and
liabilities of the Members shall be as provided in the Act, except as otherwise
provided herein.
1.02 Purpose. The purpose of the Company is to own and operate, subject to
the terms of this Agreement, a general contracting business for construction,
rehabilitation, and improvement of real estate of third parties (including
without limitation members or their affiliates) in one or more states (the
"Business") pursuant to written contracts approved by the members in accordance
with this Agreement ("Contracts"). The Company shall have all the powers granted
by the LLC Act or applicable law as amended from time to time and may engage in
any lawful act, business, or activity for which limited liability companies may
be formed under the laws of the Commonwealth of Virginia and to do any and all
other things determined by the Company to be necessary, desirable, or incidental
to the foregoing purpose. Except as directly related to the ownership and
operation of the Business, however, the Company shall have and conduct no other
business or operations without a written amendment to this Agreement.
1.03 Term. The Company shall continue until December 31, 2049, unless
sooner terminated by an event of dissolution under the LLC Act and not continued
or deemed continued by agreement of the remaining members, or by a unanimous
resolution of the members entitled to vote thereon, or otherwise terminated in
accordance with this Agreement.
Operating Agreement
[MasterBuilt America, LLC]
1.04 Special Venture. The initial members, MasterBuilt Companies, Inc., a
Maryland corporation ("MasterBuilt"), and Homes for America Holdings, Inc., a
Nevada corporation ("Homes"), have organized the Company to facilitate the
establishment of a contracting concern with national experience. MasterBuilt is
an established contractor and the intended primary provider of the supervision
and back office operations required for the Company to conduct all of the
construction required of the Company under any Contract. Homes is an established
promoter and developer of construction and rehabilitation projects and otherwise
engages separate third party construction firms for each of its projects. The
members understand and agree that so long as Homes agrees to present its
projects to the Company for contract consideration and MasterBuilt agrees to
devote its managerial resources to bid on such projects for the Company, the
likelihood is that each will benefit more through coordination through the
shared ownership of the Company than either would in separate negotiation of
each proposed joint project, and each will have adequate inducement thereby to
advance their mutual interest through the Company.
1.05 Ownership of Name. The members understand and agree that MasterBuilt
initially has a proprietary interest in the name "MasterBuilt America, LLC" and
any similar name or trade name including the term "MasterBuilt". As time passes
and the Company pursues the Business it may establish the name in the markets
where it participates and create an identification with the name which has value
both material and independently acquired from any acts of MasterBuilt. Inasmuch
as the parties intend that MasterBuilt will provide the construction work for
the Company in all of those markets it may be difficult to determine fair
ownership of the name in the event the membership of MasterBuilt in the Company
is later terminated, whether voluntarily or involuntarily. The parties therefore
agree that in the event MasterBuilt's membership in the Company is terminated
for any reason in the first twenty four (24) months after the Effective Date
(but not after that period), the Company shall be obligated to surrender and
assign to the order of MasterBuilt the name "MasterBuilt America, LLC" and all
related rights for the entire sum of one hundred dollars ($100). After that
period the name and such rights shall be retained as assets of the Company
subject to disposition only in accordance with this Agreement.
ARTICLE II
OFFICES
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2.01 Principal Office.The principal office of the Company in Virginia shall
be located at ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may have
any other offices, either within or without Virginia, as the members may
designate or as the business of the Company may from time to time require.
2.02 Registered Office. The registered office of the Company in Virginia
may but need not be identical with the principal office in Virginia. The initial
registered office established by the Articles of Organization (the "Articles")
filed with the SCC is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇. The initial registered agent of the Company designated in the
Articles is ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a member of the Virginia State Bar and initial
Company Attorney under ss. 8.09 below.
ARTICLE III
MEMBERSHIP MEETINGS
----------------------
3.01 Annual Meeting. The annual meeting of the members shall be held on the
first Wednesday in the month of June each year, at 6:00 p.m., at the Company's
principal office, or such other date, time, or location as announced by the
Accounts Manager. The purpose of the annual meeting of the members of the
Company shall be to elect managers and for the transaction of any other business
as may come before the meeting. If the day fixed for the annual meeting is a
legal holiday in the jurisdiction of the principal office of the Company, the
meeting shall be held on the next succeeding business day.
3.02 Regular Meetings.The members may by resolution prescribe the time and
place for the holding of regular meetings and may provide that the adoption of
such resolution shall constitute notice of such meetings. If the members do not
prescribe the date, time, or place for the holding of regular meetings, by
resolution or otherwise, the regular meetings shall be held as specified by the
Accounts Manager in the notice of each regular meeting and at the principal
office of the Company. Initially, until otherwise set by member resolution, the
regular meetings shall be held at least once each fiscal quarter.
3.03 Special Meetings.Special meetings of the members may be called (a) any
manager, (b) by a member or members together holding membership interests in the
Company of not less than ten per cent (10%) of the entire ownership interest in
the Company, and (c) by other persons authorized by a duly adopted resolution of
the members, or authorized or allowed under the Articles or this Agreement. A
special meeting may be called only for a stated purpose or purposes, and except
as otherwise agreed shall be held at the principal office of the Company.
3.04 Notice of Meeting. Written notice stating the date, time, and place of
the meeting, and in case of a special meeting, the purposes for which the
meeting is called, shall be delivered not less than ten (10) business days nor
more than fifty (50) calendar days before the date of the meeting, either
personally or by mail, by or at the direction of the Accounts Manager or the
person calling the meeting, to each member of record entitled to vote at the
meeting. If a notice is mailed it shall be deemed delivered when deposited in
the U.S. mail, addressed to the member, with postage prepaid, at the member's
address as it appears on the books of the Company. A member may but is not
required to execute a written waiver of notice of any meeting the member attends
or the proceedings of which the member elects to ratify or approve.
3.05 Quorum and Voting. At any meeting of the members, a quorum shall be
constituted when members representing a majority of the membership interests of
the Company shall be present. Voting shall be by membership interests, with each
member present voting that member's membership interest in entirety. If a quorum
is present, the affirmative vote of a majority of the membership interests
present or represented at the meeting and entitled to vote at the meeting on the
subject matter shall be the act of the members. If a quorum is not represented
at any meeting, or notice complying with the requirements of ss. 3.04 not have
been given or waived, the meeting shall be adjourned for a period not to exceed
sixty (60) days and reconvened at a date, time, and place designated by the
Manager and at the reconvened meeting, if a quorum is present and notice
satisfied, the members may transact any business as might have been transacted
at the originally called meeting. Once quorum is established at a duly organized
meeting business may continue to be transacted until adjournment,
notwithstanding the earlier departure of members whose presence is required for
a quorum.
3.06 Proxies. At any and all meetings of members, a member may attend and
vote by proxy executed by the member in writing or by the member's
representative under a written power of attorney, provided that any such proxy
or power of attorney is filed with the Manager before establishment of a quorum
for the meeting and provided further that any such written proxy or power shall
be deemed lapsed, revoked, or terminated within eleven (11) months of its
execution, unless otherwise expressly providing for its continuation or
termination.
3.07 Action without a Meeting. Any action required or permitted to be taken
at a meeting of members may be taken without a meeting, or action taken at a
meeting where quorum or notice is unsatisfied, or an insufficient vote of
membership interests for any extraordinary matter requiring an affirmative vote
of more than a majority, may be cured or ratified outside the meeting, if the
action is approved or consented to in writing by one or more written consents
describing the action taken, signed by the member. The written consent of a
member entitled to vote has the same force and effect as a vote of a member at a
meeting where quorum is satisfied.
3.08 Order of Business. The order of business at all meetings of the
members shall be as follows:
1. Roll call
2. Proof of notice of meeting (or waiver).
3. Approval of minutes of preceding meeting.
4. Reports of the Managers.
A. Accounts Manager.
B. Contracts Manager.
C. Development Manager.
D. Planning Manager.
E. Administrative Manager.
5. Reports of Committees.
6. Unfinished Business.
7. New Business.
3.09 Defaulting Member Votes. Any of the members who are not Defaulting
Members within the meaning of ss. 4.03 below shall have the right, but not the
obligation, to object to the participation, whether in attendance or by vote, of
any Defaulting Member. In the event any member raises this objection, whether or
not all of the members agree, all business of the Company shall thereafter be
conducted, whether for determination of quorums or for determination of majority
or unanimous consents, as if the Defaulting Member were not a member of the
Company, although a Defaulting Member shall be entitled to receive all notices
and information provided to members and to consent to any amendment under ss.
8.04 below, until he withdraws under ss. 4.08 below or is removed under ss. 4.09
below.
3.10 Authorized Representatives. The members MasterBuilt and Homes each
hereby agree to designate a specific individual officer authorized to execute
and deliver member consents, votes, and instructions hereunder (the "Authorized
Representative") and upon receipt of such consent, vote, or instruction by the
Authorized Representative on behalf of that member the other member and the
managers may rely without requiring corporate resolutions or other evidence of
corporate authorization. For any notice, consent, vote, instruction, or other
exchange required or allowed under this Agreement, whether to or from a member,
a manager, or the Company, it shall be sufficient to send it by facsimile
transmission to the recipient's principal office provided the original is
thereafter sent by hand delivery, first class or certified mail, or commercial
delivery service.
ARTICLE IV
FINANCE AND OWNERSHIP
---------------------
4.01 Form of Contribution. The contribution of a member may be in cash,
property, or services rendered and may be evidenced by a promissory note or
other written obligation to contribute cash, property, or services accepted or
agreed to by the members. The parties have negotiated express terms for the
contribution, set forth in ss. 4.11 below. The Company shall begin business with
the following members and the following membership interests ("Membership
Interests") representing the respective agreed initial capital contribution and
capital ownership per cent interest and the profit and loss per cent interest of
each member:
Capital Profit Capital
Member Ownership and Loss Contribution
------ --------- -------- ------------
MasterBuilt Companies, Inc. 50.00 % 50.00 % $ 10,000.00
▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Homes for America Holdings, Inc. 50.00 % 50.00 % $ 10,000.00
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In the event these members or later members make additional contributions or
undertake to make such contributions, or a member withdraws under ss. 4.08 below
or is removed under ss. 4.09 below, the members shall prepare, execute, and
deliver an amendment to this Agreement supplementing and restating the
Membership Interests in this ss. 4.01. Subject to the transactions described in
ss. 4.11 below, no member shall be authorized to make the initial or any later
capital contribution or satisfy any assessment under ss. 4.02 below in any form
other than cash or immediately available funds (or by check, subject to
collection) without an express approving member resolution providing otherwise.
4.02 Regular and Special Assessments. (a) A member shall also make regular
monthly contributions to the Company on or before the fifteenth (15th) day of
each month, delivered to the Accounts Manager at the principal office of the
Company, for deposit in the demand account of the Company and application to the
regular obligations of the Company, including without limitation the Company's
business license, franchise or charter fees, taxes, insurance, reserves, and the
like. The members intend that at all times the Company shall have on deposit in
such account not less than one thousand dollars ($1,000).
(b) The Accounts Manager shall establish at a local financial institution
convenient to the Company's principal office a demand account for the payment of
those obligations of the Company. On a regular basis and not less often than
before each regular meeting under ss. 3.02 above, the Accounts Manager shall
prepare and submit for member approval a proposed amount of monthly assessment
to be paid by each member, together with a budget showing the proposed
application of such assessments. Unless otherwise adopted by the members, each
assessment shall be paid pro rata by the members based upon his or its Capital
Ownership per cent interest shown in ss. 4.01 above, and shall continue in
effect until revised by a subsequent membership resolution. The initial monthly
assessment, due commencing on August 1, 1999, shall be No dollars ($0), subject
to review and increase from time to time by agreement among the members.
(c) By express resolution the members may also agree from time to time to a
special assessment or assessments for other purposes on terms and conditions set
forth in that resolution. Unless otherwise provided by membership resolution,
assessments under this ss. 4.02 shall not be deemed capital contributions unless
used to acquire capital assets.
4.03 Liability. (a) A member is obligated to the Company to perform any
enforceable promises to contribute cash, property, or services, even if the
member is unable to perform for any reason including without limitation death,
disability, or insolvency. If a member fails to make a required contribution of
property or services, including any regular or special assessment pursuant to
ss. 4.02 above, the Company at its sole option may set a market value for the
required contribution in cash and treat the failed contribution as a claim for a
cash contribution. Execution of this Agreement constitutes a promise by each
member to make the initial capital contributions set forth in ss. 4.01 and to
pay the assessments described in ss. 4.02 and adopted pursuant to this
Agreement. No other promise by a member to contribute to the Company is
enforceable unless set out in writing signed by the member. No third party
beneficiary of any such promise is intended hereby and no person not party to
this Agreement (other than the Company) shall have any right hereunder to
enforce these contribution obligations.
(b) Upon failure of a member to make any payment required hereunder the
Accounts Manager shall provide written notice of the default to that member and
include the default in his report at the next meeting of members. During the
pendency of any such default after thirty (30) days without cure a member shall
be liable to suspension of his use privileges under Article VII below. Any such
payment default that continues uncured for a period of sixty (60) days shall
cause the defaulting member (a "Defaulting Member") to be liable for loss of
voting privileges under ss. 3.09 above and removal under ss. 4.09 below. No
distribution of monies otherwise authorized to members shall be made to a
Defaulting Member except after set-off for payment of any outstanding and unpaid
capital contributions or assessments.
4.04 Profits and Losses. The profits and losses of the Company, if any,
shall be allocated among the members on the basis of their Profit and Loss per
cent interests set forth in ss. 4.01 above, except as otherwise expressly agreed
in writing by the members affected.
4.05 Distributions. The Accounts Manager shall make written recommendations
to the managers whether distribution of the assets of the Company should be made
to the members and when and in what amounts, and whether of monies retained or
available to the Company sums should be transferred into the Working Capital
Fund; and subject to a majority vote of the managers the distributions and
transfers shall be made; provided, that the managers may not make any
distribution the effect of which upon completion would make the total
liabilities of the Company (without including liabilities on members' capital
and income accounts) exceed the total fair market value of the assets of the
Company.
4.06 Capital Accounts of Members. The Company shall maintain records of the
capital account of each member in at least two categories: first (the "capital
account"): to reflect the total capital contribution of money, property, and
services of the member; and second (the "income account"): to reflect the total
undistributed share of Company profits (or losses) allocated to the member, with
this income account initially set at a zero dollar ($0) balance and increased by
allocation of profits to that member and decreased by allocation of losses or
distribution of assets to that member. No member or any successor in interest to
a member: (i) shall be paid interest on its capital account or its income
account; (ii) shall have the right to demand and receive property other than
cash in return of its capital account or income account; and (iii) shall have
the right to demand or receive cash or other property of the Company in return
of its capital contributions until the termination of the Company, except as
otherwise agreed in writing by all of the members. At regular intervals set by
membership resolution, or on January 1 and July 1 of each year if not otherwise
agreed by the members, the Accounts Manager shall determine the aggregate value
of all Company assets (including without limitation the Contracts), less the
aggregate value of all Company liabilities (including without limitation any
loans from members) and capital accounts, and inform the members of the net
value of the Company (the "Value") for use under provisions of ▇▇.▇▇. 4.08 and
4.09 below.
4.07 No Transfers. No member may make or permit a disposition of all or any
part of its Membership Interests except as specifically set forth in this
Agreement. Any attempted disposition not specifically authorized herein shall be
invalid, null, and void ab initio. A Member's Membership Interests may not be
transferred, in whole or in part, to a successor in interest, another member, or
any other person except as specifically provided herein. Any member seeking to
hypothecate, transfer, sell, assign, or dispose of any part of its Membership
Interests must provide satisfactory evidence to the Manager and the other
members that the disposition will not require any securities registration by the
Company, will not affect its tax classification, will not result in the
termination of the Company by dissolution under the LLC Act or for income tax
purposes, and will not create or grant rights in the Company assets in any
person not party to and governed by the terms and provisions of this Agreement.
Further, no such transfer or disposition shall be valid until the expiration of
a thirty (30) day period from notice by the transferor to the Company and all
other members of the terms and provisions of the proposed transfer during which
period the remaining members, directly or acting collectively through the
Company, shall have a right of first refusal to acquire the Membership Interests
in question on the same terms as proposed with the third party.
4.08 Voluntary Withdrawal. A member may withdraw from this Agreement and
transfer his membership interest to a third party only in compliance with this
ss. 4.08. A member seeking to transfer his membership interest to another (a
"Withdrawing Member"), whether a member hereunder or some third party, shall
provide advance written notice to each of the remaining members identifying the
proposed transferee and setting forth in full the purchase price and terms for
the transfer. For a period of thirty (30) days from receipt of notice each of
the remaining members shall have the right, but no obligation, to acquire the
Withdrawing Member's membership interest by payment to the Withdrawing Member
the lesser amount of (i) the purchase price set forth in the Withdrawing
Member's notice and (ii) the sum of (A) the pro rata share of the Withdrawing
Member of the most current Value determined under ss. 4.06 above, less (B) any
due but unpaid assessments or contributions due from the Withdrawing Member. In
the event more than one remaining member exercises his option to acquire the
Withdrawing Member's membership interest the electing members shall divide that
interest pro rata based upon their respective then existing shares of membership
interests. The member or members acquiring the Withdrawing Member's membership
interest shall pay the entire consideration therefor within six (6) months of
the election. In the event no member exercises its right of first refusal during
the above period, or the electing members default in payment therefor, the
Withdrawing Member shall have the right for a period not to exceed thirty (30)
days to transfer his membership interest strictly in accordance with his notice.
Any successor member shall be required to execute and deliver a counterpart of
this Agreement as a condition to admission as a member and receipt of its
membership interest in the Company.
4.09 Involuntary Removal. (a) The Company shall have the right, but no
obligation, to remove any Defaulting Member without advance notice, and the
remaining members may assume the membership interest of the Defaulting Member,
or the Company may admit a replacement member, and pay to the Defaulting Member
the sum of (A) the pro rata share of the Withdrawing Member of the most current
Value determined under ss. 4.06 above, less the sum of (B) any due but unpaid
assessments or contributions due from the Defaulting Member, and (C) the costs
incurred by the Company to obtain a replacement member (including without
limitation brokerage commissions and attorney's fees and costs), whereupon the
Defaulting Member shall no longer be a member of the Company or a party to this
Agreement.
(b) On the death, dissolution, permanent disability, or bankruptcy of a
member the member shall be deemed to have withdrawn from membership and the
Company shall have the right to acquire that member's membership interest and
pay to him or as applicable his estate, heir, trustee, or successor in law, the
sum of (A) the pro rata share of the Withdrawing Member of the most current
Value determined under ss. 4.06 above, less (B) any due but unpaid assessments
or contributions due from the member, whereupon the member shall no longer be a
member of the Company or a party to this Agreement.
4.10 Continuation of Business. So long as at least one (1) member remains
after the withdrawal or removal of a member for any reason under this Article
IV, notwithstanding any provision of the LLC Act, the Company shall not
dissolve, except with an express and unanimous resolution of the remaining
members so electing in that event not to continue the business, but instead
shall continue until the end of its term in the Articles or other event of
termination.
4.11 Contributions of Capital. The members have agreed on the following
schedule for contribution of initial capital to the Company: on or before August
1, 1999, the balance from each member of its respective required capital
contribution.
ARTICLE V
RECORDS, REPORTS, AND INSPECTION
--------------------------------
5.01 Records. The Company shall keep at its principal office the following
records and documents:
(a) a current list of the full name, authorized
representative name, last known mailing address,
telephone, facsimile, and E-Mail numbers and
addresses, of each member and manager of the Company;
(b) a copy of the Articles, and any and all amendments
thereto, and the member resolutions or Manager
determinations and correspondence therefor;
(c) copies of the Company's federal, state, and local
income, franchise, sales, property, and any other
applicable tax return, report, or filing, for the
three (3) most recent calendar years;
(d) the original and copies of each effective operating
agreement, including this Agreement, governing the
business and affairs of the Company, together with
any addendum thereto (including without limitation
one prepared under ss. 4.02 above), any written
promise, note, or undertaking from a member to or for
the benefit of the Company;
(e) the statements for any account with any financial
institution, the accounts for vendors, employees, and
invoices, together with the books, records, and
schedules supporting the Company's reported earnings
and its financial statements, together with the
financial statements, whenever prepared or delivered,
for the three (3) most recent fiscal years;
(f) the minutes of every annual, regular, or special
meeting of the members, including any meeting
mandated by this Agreement, the Articles, applicable
law, or a court of competent jurisdiction in the
Commonwealth of Virginia;
(g) (to the extent not already available under ss.
5.01(d) above) a statement or statements certified by
the then authorized manager of the Company setting
forth:
(1) the times or events for required contributions of
members not yet paid, together with the respective
amounts of or descriptions for the required
contributions;
(2) the times or events, if applicable, of any agreed
or allowed termination of a membership interest, the
terms therefor, and the determination method for
valuing the distribution therefor; and
(3) the times or events, if applicable, of any agreed
or allowed return of part or all of any member's
capital account.
(h) any and all correspondence from the members,
including filed written consents, proxies, or powers
of attorney.
5.02 Quarterly Reports. The Managers designated for specific duties under
this Agreement under Articles VI and VII shall prepare and make available to the
members for review quarterly reports itemizing, among other matters required by
the members, all pending Contracts and Contracts in negotiation, insurance and
warranty claims, pending litigation, maintenance and repair activities, special
inspections, violations or other governmental notices, income, expenses, and a
statement of all accounts.
5.03 Inspection. Any member may inspect the records and at its sole expense
make copies thereof, on reasonable request and during ordinary business hours.
5.04 GAAP; Audits. The members understand and agree that the books and
records of the Company must and shall be established and maintained in
accordance with generally accepted accounting principles and in a format
allowing the consolidation of reports by Homes and its independent auditors. The
Accounts Manager, a designated manager at MasterBuilt, shall supervise the
initial assembly and preservation of original records of the Company, drawn from
the construction and development projects being overseen directly by
MasterBuilt. On a monthly basis (or as otherwise agreed by their respective
staffs) MasterBuilt shall transmit to the chief financial officer of Homes in an
electronic medium and format provided by Homes as reasonably compatible with its
own records all of the information required for Homes to prepare the quarterly
and annual financial statements for the Company. Homes shall from time to time
provide interim drafts for review by the Accounts Manager before submission of
final statements to third parties.
ARTICLE VI
MANAGEMENT
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6.01 Managers. The business and affairs of the Company shall be conducted
entirely through the Managers and only under the authority granted by this
Agreement. Members shall have no authority to act on behalf of the Company
except under an office of a Manager. The initial number of managers of the
Company under ss. 13.1-1024 of the Virginia Limited Liability Company Act (the
"LLC Act") shall be five (5) (the "Managers" or "managers") and the initial
Managers appointed by the members are: (a) the Accounts Manager: ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇; (b) the Contracts Manager: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (c) the Development
Manager: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇; (d) the Planning Manager: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇;
and (e) the Administrative Manager: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.. A manager of the
Company must be a validly existing entity qualified to do business in any state
it is doing business or must be a natural person who has attained the age of
majority in the applicable jurisdiction, but a manager need not be organized in,
resident of, or maintain a business office in the Commonwealth of Virginia just
to qualify as a manager. The members by agreement or amendment to this Agreement
may elect additional managers or increase (or if more than one (1), decrease)
the number of managers; provided that the term of any incumbent manager shall be
governed by ss. 6.03 below.
6.02 Action by Managers. In the event the Company has more than one
manager, the act or consent of a majority of those managers shall be required
for the managers to act for any action other than a duty assigned to a specific
manager under this Agreement (including without limitation those duties assigned
by Article VII below), who within the scope of that duty, or within the scope of
any enabling resolution of the members, is authorized to take actions without
the act or consent of the other managers. The managers may not together (even
with the Administrative Manager referred to in ss. 7.01 (e) below) take any
action on behalf of the Company requiring unanimous member consent under ss.
8.06 without such consent or ratification by all of the members.
6.03 Election and Term. At each annual meeting of the members they shall
elect the managers to hold office until the next succeeding annual meeting. Each
elected manager shall hold office for the term elected and until a successor has
been elected and qualified, unless the manager has been removed under ss. 6.05
below. The term of the initial managers shall extend until the first annual
meeting of the Company.
6.04 Vacancies. In the absence of prior instructions of the members under
this Agreement (as amended) or by resolution, any vacancies occuring in the
group of managers may be filled for the period remaining of the term by a
majority vote of the remaining managers. New vacancies created by the increase
in the number of managers or the removal of an existing manager may be filled in
the same manner. Vacancies may also be filled by election of the members at
a meeting or by action without a meeting under ss. 3.07.
6.05 Removal. At a meeting expressly called for that purpose, or a meeting
where that purpose has been announced with advance notice, any or all managers
of the Company may be removed from office by an affirmative vote of the members,
with or without cause.
6.06 Debt. No debt may be contracted nor liability incurred by any manager
of the Company on behalf of the Company except by act of an authorized manager
in compliance with this Agreement (including without limitation ss. 6.06(b)
below) or an approving member resolution. No manager shall incur any expense
on behalf of the Company or contract for or obligate the Company directly or
indirectly for any sum in excess of five thousand dollars ($5,000) without a
member resolution, provided that the members may but are not obligated to ratify
or reimburse such expense or contract after incurred or undertaken. No Manager
shall settle or compromise any claim of or against the Company, nor sell,
hypothecate, or transfer any asset of the Company without an approving member
resolution.
6.07 Indemnification. The managers of the Company are entitled to
indemnification by the Company to the maximum extent provided in or allowed by
the LLC Act and shall be entitled to the advance of expenses, including
reasonable attorneys' fees, in defense or prosecution of a claim against the
manager(s) arising from the discharge of his or their duties as manager(s) of
the Company.
6.08 Exculpation. No manager shall be liable to any member or to the
Company for any mistake of judgment or for any action or inaction taken in good
faith, not in violation of this Agreement, the Articles, or applicable member
resolution(s), and for a purpose and in a manner the manager reasonably believed
to be in the best interests of the Company. Except as otherwise instructed
by applicable member resolution, the Managers shall have no duty to consult with
members before taking action on behalf of the Company.
6.09 Third Party Reliance. Third parties dealing with the Company shall
be entitled to rely conclusively upon the power and authority of the Manager as
set forth herein, subject only to the express limitations set forth in this
Agreement or by law.
6.10 Compensation. The managers shall serve hereunder without fee or other
compensation, except reimbursement for out-of-pocket expenses incurred for
the Company; provided that so long as the Administrative Manager is the Company
Attorney fees and reimbursement for expenses incurred for his or her service
hereunder shall be governed by the legal services agreement between the Company
Attorney and the Company. Nothing herein shall preclude a manager from serving
the Company in other capacities and receiving compensation for such services,
subject to an approving member resolution.
6.11 Designated Managers. The initial Accounts Manager and Contracts
Manager have each been designated by MasterBuilt and are officers and the
principal owners of MasterBuilt. The initial Development Manager and Planning
Manager have each been designated by Homes and are officers and Affiliates
of principal owners of Homes. So long as both MasterBuilt and Homes are the sole
members of the Company each shall be entitled to appoint the replacement or
successor on removal, resignation, or death of these designated Managers. The
Administrative Manager shall be, in the absence of other member resolution or
agreement, the Company Attorney.
[Article VII commences on the next succeeding page.]
ARTICLE VII
BUSINESS OPERATIONS AND MANAGEMENT
----------------------------------
7.01 Duties of Managers. The initial managers appointed hereunder shall
have those duties established by member resolution and otherwise as follows:
(a) the Accounts Manager shall establish the accounts,
books, and records of the Company, maintaining the
financial records in accordance with generally
accepted accounting principles and supervise
collection and disbursement of contract, loan, and
casualty proceeds for the Company;
(b) the Contracts Manager shall establish and supervise
the terms and conditions for the Company's bids,
negotiation, and award of all the Contracts and the
required subcontracts, shall review the plans and
specifications for any proposed bid, and assure that
personnel and other resources are available and
devoted to the contract performance required of the
Company for any project;
(c) the Development Manager shall establish and identify
to the Company the prospective projects to be subject
of bids for Contracts and negotiate with third party
owners (including Homes and its Affiliates) specific
terms for such projects;
(d) the Planning Manager shall establish long term
marketing and financing for the growth of the
Business, identifying to the Company and its members
markets and prospective clients for the promotion of
the Company on a nation-wide basis; and
(e) the Administrative Manager (who in the absence of a
unanimous agreement of the members or a controlling
member resolution shall be the Company Attorney)
shall administer and mediate disputes among the
managers in the event no majority vote on a matter
can be reached; provided that he may require the
managers to meet together (in person or by telephone
conference) as a formal board to deliberate such
matters.
7.02 Transactions with Manager and Affiliates. Subject to obtaining any
consent expressly required under the terms of this Agreement, the Manager may
appoint, employ, contract, or otherwise deal with any Person, including a
Manager or member and Affiliates of a Manager or member, individuals with whom a
Manager is related, and with Persons that have a financial interest in a Manager
or in which a Manager has a financial interest, for transacting the Company's
business; provided, however, these or other payments under the terms of
contracts with such related parties shall not be in excess of prevailing
competitive rates for such transactions and shall be disclosed in writing in
advance to each Member.
7.03 Limitation of Liability of Manager. The Members hereby acknowledge
and agree that the liability of any manager (or officers) to the Company or to
any of the Members shall be limited to the maximum extent permissible under
ss. 13.1-1025 of the LLC Act.
7.04 Authority to Deal. The Company may engage any person, firm, or
corporation in which any member, manager or any Affiliate of a member or
manager may have an interest, for the performance of any and all services or
purchase of goods or other property which may at any time be necessary, proper,
convenient, or advisable in carrying on the business and affairs of the Company
or disposing of some or all of its assets; provided, however, that the
compensation or price therefor shall not materially exceed that prevailing in
arm's length transactions by others rendering similar services on comparable
transactions as an on-going activity.
7.05 Duties of the Manager. A manager will devote such time, effort, and
skill in the management of the Company's business affairs as he or it deems
necessary and proper for the Company's welfare and success. The Members
expressly recognize that a manager may have substantial other business
activities and agree that the manager shall not be bound to devote all of his or
its business time to the affairs of the Company, and that a manager, or its
principals, shareholders, directors, officers, or Affiliates may engage for
their own account and for the account of others in other businesses or
activities, including businesses or activities wherein the manager's interests
may conflict with the interests of the Company. The foregoing notwithstanding,
no manager shall appropriate information or properties of the Company for his or
its private benefit and each manager and member shall respect and maintain the
confidentiality of information of the Business and the Contracts.
7.06 Other Ventures. The managers and any of the members may engage in,
conduct, and/or possess an interest in other business ventures of any nature and
description, independently or with others, whether or not in competition
with the Company, and neither the Company nor any of the members shall have
any right by virtue of this Agreement, in or to any independent venture of
any of the members or manager or to any income or profits derived therefrom.
7.07 Working Capital Fund. The Accounts Manager shall segregate within
the accounts of the Company, or shall when sufficient funds are available set up
a separate account at a financial institution convenient to the principal office
of the Company, a subaccount to be designated the "Working Capital Fund", from
monies received from operations including Contracts. As required for operation
and ownership of the Business and after approving resolution of the members
monies on deposit in the Working Capital Fund shall be applied to the
maintenance of licenses and minimum capital for liability coverage required
for the Company to qualify for construction contracts, as well as establish
reserves against contingent claims or provision for other unfunded obligations
of the Company.
7.08 Contracts. (a) The initial members and managers will establish a
customary form contract and related instruments for a typical construction
project the Company would undertake for Homes or its Affiliates. Among the
related instruments shall be a master agreement by and between the Company and
MasterBuilt for MasterBuilt to provide the work as and when and on the terms and
conditions required of the Company under its Contract with the owner, including
provision of back office operations and overhead. It is the intention of the
members that although MasterBuilt would not include any provision for profit
on the services it is to provide (obtaining its share of profits under its
membership interest hereunder), it nevertheless would not be required to advance
expenses without reimbursement or to lend personnel without compensation at the
direct allocated cost therefor. As part of the itemization of estimated project
costs for any Contract MasterBuilt shall identify these expenses and by
agreement among the members some line item provision, with a fixed base dollar
component and a percentage of total project costs, may be used to estimate the
direct costs of the back office operations and overhead.
(b) For any contract where the owner is Homes or an Affiliate the Company
shall undertake the work without including an allocation for general and
administrative expenses (which expenses shall instead be itemized to the
specific project) and providing a profit on total project expenses as follows:
for projects with aggregate construction costs: (a) under two million dollars
($2,000,000): a profit of twelve per cent (12%); (b) from two million dollars
but under five million dollars ($2,000,000 - $5,000,000): a profit of ten per
cent (10%); (c) from five million dollars but under ten million dollars
($5,000,000 - $10,000,000): a profit of eight per cent (8%); and (d) over ten
million dollars ($10,000,000): a profit of seven per cent (7%) (for each such
project, the "Target Profit").
(c) For any Contract where the owner is Homes or an Affiliate as part of
the member approval the Company shall determine the agreed amount of the Target
Profit and fix the Contract price. After the Company shall complete the work for
that Contract (providing if necessary reserves for completion or contingent
liabilities) the Accounts Manager shall report to the members the actual all
monies paid or costs incurred by the Company for the project (including without
limitation payments for materials, equipment, services, subcontractors, and
MasterBuilt) (the "Actual Cost"). In the event (i) the sum of the Actual Cost
plus the Target Profit shall be more than the Contract price (with all approved
change orders) the Accounts Manager shall note the amount in his reports as a
project that failed to achieve Target Profit and if instead (ii) the sum of the
Actual Cost plus the Target Profit shall be less than the Contract price (with
all approved change orders) the Accounts Manager shall note the amount in his
reports as a project that exceeded Target Profit.
(d) In the event the Accounts Manager shall report that a project described
in ss. 7.08(c)(ii) above shall have exceeded Target Profit, he shall segregate
the amount of such excess in a subaccount or separate account for disposition
under this paragraph. No later than the last day of the fiscal quarter
immediately succeeding a fiscal quarter when the Company shall have completed
one or more Contracts for Homes or its Affiliates the Company shall pay from
that segregated account, first, to the Working Capital Fund, a sum equal to the
amount of any deficiency for Contract(s) on projects described in ss. 7.08(c)(i)
above, to make up the Target Profit thereon, and second, any balance deposited
in the previous fiscal quarter into that segregated subaccount to the order of
Homes, among the owner(s) and Homes for the affected projects, on such
allocation as provided by Homes in its sole discretion.
(e) To induce each other to enter into this venture and provide
professional managers and other resources to the Company, Homes and MasterBuilt
represent, warrant, and covenant to each other that while a member of the
Company Homes shall present to the Company for a right of first review and
refusal any construction project within the scope of the Business as then
conducted and that MasterBuilt shall review and respond to any prospective
construction project (whether or not from Homes, its Affiliates, or some third
party) with a recommendation whether the Company should proceed with the work
under Contract. Homes shall retain the right to obtain separate bids from third
parties for any of its construction projects and may use such bids in reviewing
whether to proceed with the Company.
(f) The parties understand and agree that the joint venture contemplated
hereby requires the development of a business operation novel to both parties.
At the outset Homes will be undertaking to represent to its lenders and equity
partners that it is appropriate for Homes or its Affiliate to enter into a
Contract with the Company to do construction work at a project in Florida of a
Homes Affiliate. For the first two (2) fiscal quarters after the Effective Date
Homes shall also have the right, in its sole discretion, based upon its
determination that the Company will be unable to complete a Contract according
to its terms, to (i) require the Company to terminate the Contract as of a date
certain within ten (10) business days, releasing the owner under the Contract
for liability or expense except through the date of termination for services
actually rendered and work completed, (ii) to surrender the membership interest
of Homes in exchange for return of its capital contribution, and (iii) to obtain
from MasterBuilt and the Company an exchange of legal releases terminating all
rights, titles, and interests between Homes and those parties as of the date of
termination.
(g) For any Contract where the owner is Homes or an Affiliate, the payments
by the Company to any subcontractor, vendor, or other party (including a member,
manager, or an Affiliate thereof) shall be subject to the additional
restrictions of this subparagraph, which shall supplement other restrictions set
forth herein. Homes shall have the right of approval, exercised through its
Authorized Representative, of the draw schedule, as and if amended or
supplemented from time to time, for the Contract, which draw schedule or its
supporting documents shall show with sufficient detail (i) the materials,
services, equipment, or other work subject to payment, (ii) the identities of
the payees therefor, (iii) the amounts subject to payment, and (iv) the contract
sums previously paid, the sums remaining on the subject contracts, and the
amounts of any sums representing change orders or separate contract sums (such
information being collectively the "Draw Schedule"). The Company shall not pay
or allow to be incurred and due from the Company any amount on such a Contract
where the owner is Homes or an Affiliate except as the specific amount is either
(i) set forth in the Draw Schedule then approved by Homes or (ii) separately
approved in writing by the Authorized Representative of Homes.
ARTICLE VIII
ADDITIONAL PROVISIONS
---------------------
8.01 Fiscal Year. The fiscal year of the Company shall be the calendar year
January 1 to December 31, unless otherwise determined by member resolution.
8.02 Deposits. All funds of the Company shall be deposited from time to
time to the credit of the Company, and not in another entity's name or account,
in banks or other customary financial institutions as the Accounts Manager may
designate, provided that any such account shall be established with an
institution the deposits of which are federally insured. The Accounts Manager is
hereby authorized to establish such accounts without a separate authorization
from the members.
8.03 Demand Obligations. Any check, draft, or demand obligation or other
order for the payment of money (including an order for wire transfer), and any
note or other evidence of obligation or indebtedness of the Company, shall be
signed by or under the direction of the Accounts Manager on behalf of the
Company. So long as the members hereunder are Homes and MasterBuilt alone, each
member may designate one of the managers it is entitled to appoint under ss.
6.11 as a signatory on each such account and further, unless otherwise provided
by a member resolution, every check, draft, or demand obligation or other order
in excess of Fifteen Thousand Dollars ($15,000) shall require the signature of
two (2) managers, one designated by each of MasterBuilt and Homes; provided
further that any such transfer to a member or its designated manager or any of
its employees shall also require the signature of a disinterested manager, being
a manager designated by the other member. Further, no check, draft, or demand
obligation may be issued by or for the Company (i) in violation of any other
term of this Agreement (including without limitation ss. 7.08(g)) or (ii) if
made to a party and if taken in series or cumulatively with other obligations of
the Company would exceed Fifteen Thousand Dollars ($15,000) without obtaining
the signatures of two (2) managers, one designated by each of MasterBuilt and
Homes.
8.04 Amendments. This Agreement may be amended only by written agreement
signed and consented to by all members; provided that an assessment under ss.
4.02 shall be governed by that section and provided that by member resolutions
in compliance with Article III above this Agreement may be supplemented or
modified further by less than a unanimous consent of membership interests so
long as the voting rights, capital account, income account, and rights in
dissolution of any member shall not be diminished without his affirmative
consent.
8.05 Tax Classification. The Company is organized under the LLC Act and the
members desire and hereby determine that the Company shall be classified as a
partnership for federal income tax purposes. No provision of this Agreement, the
Articles, or any act of the Manager or resolution of the members, to the extent
it would cause the Company to be treated as a corporation or other tax
classification than partnership, shall be deemed valid and the remaining
provisions of the instruments governing the Company shall be given effect as if
that offending provision were void. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as initial Accounts
Manager, is designated as the "tax matters partner" for purposes of the Internal
Revenue Code of 1986, as amended.
8.06 Extraordinary Matters. Notwithstanding any provision to the contrary
herein, the written consent of members holding one hundred per cent (100%) of
the outstanding Membership Interests entitled to vote shall be necessary (and
sufficient) for the Company: to (a) be dissolved or terminated under the
provisions of ss. 13.1-1046(1) of the LLC Act; (b) merge with one or more
domestic or foreign limited liability companies, limited partnerships or
corporations under the applicable provisions of the LLC Act; (c) sell or
transfer the Business or the Contracts or all or substantially all of the
Company assets other than in the ordinary course of business; (d) pledge,
mortgage, or hypothecate the Business or the Contracts or all or substantially
all of the assets of the Company; (e) guarantee or otherwise agree to satisfy
debts or obligations of another person; (f) enter into any material transaction
or agreement with a member or with an affiliate of a member (except as expressly
provided for in this Agreement); (g) admit a new member where a new Membership
Interest would be established in dilution of existing Membership Interests or
the number of members would then exceed four (4); (h) except as expressly
provided for under this Agreement, enter into any material transaction or
agreement with a manager or member of an Affiliate of a manager or member; (i)
remove any manager or appoint additional managers; or (j) amend, modify,
supplement, or terminate any Contract (except to comply with or conform to
applicable law or regulations).
8.07 Waiver of Partition. As a material inducement to each member to
execute this Agreement, each member covenants and represents to each other
member that during the existence of the Company no member, nor any person
claiming under the member's Membership Interest, will seek to make any
partition, directly or indirectly, of the assets of the Company whether now
owned or hereafter acquired, and each member hereby waives all rights of
partition provided by statute, custom, or principles of law or equity, including
partition in kind and partition by sale. The members agree that irreparable
damage would be done to the Business and the operations and goodwill of the
Company if any member should institute an action in any court to dissolve the
Company. The members agree that there are fair and just provisions for payment
and liquidation of the interest of any member, and fair and just provisions to
prevent a member for selling or otherwise alienating such member's Membership
Interest in the Company, and accordingly each member hereby waives and renounces
such member's right to such a court decree of dissolution or to seek the
appointment by court of a liquidator or receiver for the Company.
8.08 Compliance with Applicable Laws. No member or manager shall cause,
suffer, or allow the Company, directly or indirectly, to require or accept
performance from any subcontractor or representative (including without
limitation any member or manager) not in compliance with applicable laws,
ordinances, regulations, or orders of any court exercising jurisdiction over the
subject property or performance ("Laws"). The Company shall comply with all Laws
and enforce in its contracts with third parties such compliance for any
property, right, or asset of the Company or conduct or performance affecting in
any material manner the Business. The Construction Manager shall establish a
written protocol for all employees or representatives of the Company requiring
immediate written notice to the Company's designated enforcement officer or the
Administrative Manager or both of any information or evidence of a failure of
any such person to comply with the Laws, including as an example and not by way
of limitation any proposal from any person to provide an improper payment to a
licensing or inspecting official, to any person threatening disruption of work
or deliveries, or to any person for payments not authorized under the Laws or
this Agreement.
8.09 Mandatory Buy-Sell. At any time after the first anniversary of the
Effective Date, any member may institute the following Buy-Sell procedure, which
shall supersede any rights of purchase or first refusal provided under Article
IV above, by giving a Buy-Sell Notice to another member:
(a) The member giving a Buy-Sell Notice (the "Initiating Member") to the
receiving Member (the "Receiving Member") shall undertake in writing to purchase
all (but not less than all) of the Membership Interest of the Receiving Member
for a stated amount in cash representing the Initiating Member's determination
of the value of the membership interests on a per cent basis (the "Buy-Sell
Value"), as determined in his sole and absolute discretion. That notice (the
"Buy-Sell Notice") shall constitute an irrevocable offer by the Initiating
Member either to (i) sell all (but not less than all) of the Membership Interest
of the Initiating Member to the Receiving Member in consideration for payment of
the Buy-Sell Price (defined below) or (ii) buy all (but not less than all) of
the Membership Interest of the Receiving Member in consideration for payment of
the Buy-Sell Price.
(b) For the Buy-Sell Notice to be effective it shall inform the Receiving
Member that a deposit has been made by the Initiating Member of a non-refundable
sum of not less than twenty percent (20%) of the Buy-Sell Value times the total
percentage of Membership Interest held by the Receiving Member. Unless the
parties otherwise mutually agree, the deposit shall be tendered to the Escrow
Agent (designated in ss. 8.09(g) below) to hold for settlement. This deposit
shall be credited against the Buy-Sell Price due from the purchasing Member on
the date of transfer and in the event of a default under this ss. 8.09 by the
purchasing Member the selling Member shall retain the deposit as liquidated
damages in lieu of any other claim on or liability from the purchasing Member.
(c) The Receiving Member shall elect by written notice to the Initiating
Member within sixty (60) days of receipt of the Buy-Sell Notice (or the date the
deposit is tendered, if later) whether it will (i) purchase the Initiating
Member's Membership Interest, or (ii) sell its Membership Interest to the
Initiating Member (the "Notice of Election"). For the Receiving Member to make
an effective election to purchase the Receiving Member must tender to the Escrow
Agent a non-refundable sum of not less than twenty percent (20%) of the Buy-Sell
Value times the total number of Membership Interest held by the Initiating
Member to be held and applied as described in ss. 8.09(b). Failure by the
Receiving Member to deliver a timely Notice of Election or the deposit shall be
deemed an election by the Receiving Member to sell all its Membership Interest
to the Initiating Member.
(d) The consideration due for any sale under this ss. 8.09 (the "Buy-Sell
Price") shall be an amount in cash equal to the greater of ten dollars ($10) or
the amount equal to the Buy-Sell Value times the total percentage of Membership
Interest held by the selling Member, subject to increase under subsection (e)
below for the Membership Interest of any selling Member entitled to a return of
subscription capital or repayment of loan obligations or both.
(e) The Buy-Sell Price shall be increased by that amount of cash equal to
(i) the amount, if any, of the initial capital advanced by the selling Member
and not repaid on the date of transfer, plus (ii) the amount, if any, of loans
advanced by the selling Member and not repaid on the date of transfer, together
with any interest or other return thereon due and not then paid, plus (iii) the
amount, if any, of additional capital advanced by the selling Member and not
repaid on the date of transfer, together with any preferred return thereon due
and not then paid. In the event the Buy-Sell Price is increased by such
adjustments the purchasing Member shall make any additional deposits to the
Escrow Agent required so the amount on deposit for the purchase is at least
twenty percent (20%) times the Buy-Sell Price.
(f) On the date of transfer, to be a date designated by the purchasing
Member but no later than the date seventy five (75) days after the Notice of
Election (or the date the Receiving Member has been deemed to have elected to
sell), the selling Member shall surrender his Membership Interest for transfer
on the books of the Company, together with any and all security instruments for
any loan or other capital of the selling Member, tendered against receipt in
cash or immediately available funds the full amount of the Buy-Sell Price (after
credit for the deposit made under ss. 8.09(d)).
(g) Unless otherwise agreed in writing by the purchasing and selling
Members, the escrow agent to hold deposits and conduct settlement under this
section (the "Escrow Agent") shall be the then current attorney for corporate
matters of the Company (the "Company Attorney"), or (ii) if the Company Attorney
determines a conflict of interest or other professional limitation prevents
acting as the Escrow Agent, then the Company Attorney shall designate the Escrow
Agent (to be an attorney at law or title company in the jurisdiction of the
Company's principal business office) and inform the parties. The Escrow Agent
shall confirm receipt of any deposit hereunder by written notice to both members
and the Company. If the Receiving Member makes an effective election to purchase
under ss. 8.09(c) above the Escrow Agent shall return to the Initiating Member
any deposit made under ss. 8.09(b), with notice to both members and the Company.
8.10 Defined Terms. The following capitalized terms have in this Agreement
the following meanings:
(a) Affiliate. Any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or under common control with, the
Person specified. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or the policies of a Person, whether through the ownership of at least fifty
percent (50%) of the voting securities, by contract or otherwise.
(b) Person. An individual, proprietorship, trust, estate, personal
representative, partnership, joint venture, association, company, corporation,
or other entity.
(c) Contract. A construction contract or similar instrument entered into by
the Company substantially in the form provided by ss. 7.08 or otherwise approved
by member resolution.
8.11 Governing Law; Entire Agreement; Interpretation. This Agreement and
the rights and liabilities of the parties shall be determined in accordance with
the laws of the State of New York. This Agreement embodies the entire agreement
and understanding between the members with respect to the subject matter hereof,
and supersedes all prior agreements and understandings between such members
relating to the subject matter hereof. Every provision of this Agreement is
intended to be severable. This Agreement and any amendments may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which together shall constitute one agreement. If any term or provision hereof
is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of the terms or provisions within
this Agreement. Any party seeking to enforce his or its rights hereunder shall
be entitled, if successful, to recover reasonable attorney's fees and expenses
incurred in such enforcement against any party or parties who shall have
necessitated such enforcement by breach of or contravention of the terms of this
Agreement or applicable member resolution(s).
[Signatures of parties commence on next succeeding page.]
IN WITNESS WHEREOF the undersigned Members, being all of the Members of the
Company, have executed and delivered this Agreement under seal intending to be
legally bound hereby as and for the day and year first above written.
ATTEST: MasterBuilt Companies, Inc.
{SEAL}
By: /s/ By: /s/
------------------------- -------------------------
Its: Assistant Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
ATTEST: Homes for America Holdings, Inc.
{SEAL}
By: /s/ By: /s/
------------------------- -------------------------
Its: Assistant Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
pm9\opgagr.8eb
