EXHIBIT 99.9
(MANAGER MANAGED)
OPERATING AGREEMENT
of
HIC of MO, LLC,
A Missouri limited liability company
This OPERATING AGREEMENT (the "Agreement") is made and entered into as
of the 5th day of May 2003, by and among the members (the "Members") of HIC of
MO LLC, a Missouri limited liability company.
ARTICLE 1 - FORMATION AND CONTINUANCE
Section 1.1 Intent. The Members hereto desire to form a
limited liability company (the "LLC") pursuant to the terms and conditions set
forth herein and in the Missouri Limited Liability Company Act, ▇.▇.▇▇.
'347.010, et. seq., as amended (the "Act"). In the event of a conflict between
the Act and this Agreement, this Agreement shall control.
Section 1.2 Articles of Organization. By their execution of
this Agreement, each of the Members authorize and ratify the filing of an
original and one copy of the Articles of Organization (sometimes referred to
herein as the "Articles") in the office of the Secretary of State of Missouri.
Section 1.3 Name and Principal Office. The name of the LLC is
HIC of MO, L.L.C. The LLC's principal office is ▇▇▇▇ ▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and thereafter at such other place or places as the Manager may from time
to time designate.
Section 1.4 Term. The LLC shall be perpetual unless sooner
wound up, dissolved and terminated under the terms, conditions and agreements
set forth herein.
Section 1.5 Purpose of LLC. The LLC is formed for the purpose
of Business investments, owning and administering the LLC Property. In addition,
the LLC may engage in all other general business activities related to or
incidental to the above-stated purposes.
Section 1.6 Registered Office and Agent. The LLC's registered
office shall be ▇▇▇▇ ▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the LLC's registered
agent at this address shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Section 1.7 Defined Terms. The Defined terms are set out in
Exhibit "D"
ARTICLE 2 - CAPITAL
Section 2.1 Capital Contribution/Admission of Members. The
Manager shall admit the Members set forth on EXHIBIT "B" with each Member having
the ownership interests described therein after making any required capital
contributions. Each Member shall be severally liable for his own Capital
Contributions and not jointly and severally liable for the Capital Contribution
and Additional Capital Contribution of any other Member.
Section 2.2 Return of Capital. Except as expressly provided
herein, no Member shall be entitled to the return of his Capital Contribution.
No Capital Account of any Member shall earn interest.
Section 2.3 Capital Accounts. The LLC shall maintain a Capital
Account for each Member. The Capital Account shall be increased by income and
shall be decreased by distributions and losses. The Capital Account shall be
generally maintained in conformity with Code ' 1.704.1(b)(2)(iv). All decisions
regarding Capital Accounts shall be made in the sole discretion of the Manager
Section 2.5 Limited Liability of Members. Notwithstanding
anything to the contrary contained, however, the liability of a Member for the
operating or other losses of the LLC shall in no event exceed, in the aggregate,
the amount of his Capital Contributions and obligations to make Additional
Capital Contributions. Members shall not be obligated to restore any negative
Capital Account balances. No creditor or any party other than the Manager or
other Members shall have the right to enforce any obligation to make Additional
Capital Contributions pursuant to Section 2.5 against the Members.
Section 2.6 Member's Loans. Members may make a "Member's Loan"
to the LLC for any purpose determined to be necessary or desirable by the
Manager and approved by holders of a majority of the Ownership Interests. The
Manager shall give ten (10) days written notice of such recommendation which
shall be approved or rejected as provided in Section 6.14. Member's Loans shall
be repaid prior to any distribution to Members under Article 4. Member's Loans
to the LLC shall bear interest at an annual rate of two percent (2%) over the
Prime Rate at the time such loan is made, or the then legal maximum rate,
whichever is lower, unless otherwise approved by Members holding a majority of
the Ownership Interest. The interest rate shall be adjusted (increased or
decreased) every six months during the period of the loan. If a Member's Loan is
to be made, all Members shall have an opportunity, but not an obligation, to
participate in the loan on the basis of their Ownership Interests.
ARTICLE 3 - MANAGEMENT OF LLC & AGREEMENTS AMONG MEMBERS
Section 3.1 Management. The business and affairs of the LLC
shall be managed by the Members who may delegate certain responsibilities for
the operation of the Manager as specified in this article.
Except as expressly provided to the contrary in this
Agreement, in addition to the powers given to the Manager by law, the Manager
shall have the power and authority to do all acts on behalf of the LLC that the
Manager determines to be in the best interest of the LLC in his sole discretion,
including, but not limited to, the execution of all documents necessary to
conduct business; the acquiring of any insurance; the paying, collecting and
settling of any claims of or against the LLC; the employment of such persons,
firms, companies, agents, employees, attorneys, accountants, financial advisors,
business consultants, and such other professional personnel, including
Affiliates of the Manager and Members, under terms and conditions as the Manager
considers necessary; the establishment of any bank accounts including execution
of any certificates or resolutions; the investing of LLC funds in any form of
bank accounts, government obligations, stocks, bonds or any other investments;
the admission of Members to the LLC as provided herein; the distributing to
Members their share of Distributable Net Proceeds; and the performance of all
other acts reasonably necessary in connection with the LLC business.
Notwithstanding the above, the Manager shall obtain approval of Members
holding more than one percent of the Ownership Interests regarding any sale of
the Property or for any financing, refinancing or mortgaging of the Property.
The execution and delivery of any instrument described above that is signed by
any Manager, if there is more than one Manager, shall be sufficient to bind the
LLC.
Section 3.2 Authority of Manager. The Manger shall conduct the
routine and ordinary affairs of the LLC. The Manager will direct that any
proposed action be voted on by the Members and in such event such action must
be approved by a majority of the Ownership Interest.
Section 3.3 Manager's Time and Independent Activities. The
Manager and Affiliates shall not be required to devote full time to the Business
of the LLC and they may have other business interests and engage in other
activities in addition to those relating to the LLC. Neither the Manager nor
Affiliates shall be obligated to present any particular investment opportunity
to the LLC or the Members even if such opportunity is of a character which, if
presented to the LLC, could be taken by the LLC, or such opportunity may be
competitive with the LLC, and the Manager and Affiliates shall have the right to
take such investment for its own account or to recommend any such investment
opportunity to the individuals or entities.
Section 3.4 Liability of Managers; Indemnification. No Manager
shall be liable under a judgment, decree or order of a court, or in any other
manner, for any debt, obligation or liability of the LLC. A Manager of the LLC
shall not be personally liable to the LLC or its Members for monetary damages
for breach of fiduciary duty as a Manager, except for liability for any acts or
omissions which involve intentional misconduct, fraud or knowing violations of
law or for a distribution, redemption or purchase of or with respect to a
Member's Ownership Interest in the LLC in violation of Missouri law as a result
of the willful or grossly negligent act or omission of the Manager. The LLC
shall indemnify, save and hold harmless a Manager from any loss, damage,
liability or expense incurred or sustained by him by reason of any act performed
by him or any omission of his, for or on behalf of the LLC and in furtherance of
its interest; provided, however, that such right to indemnification shall not
apply to or relieve the Manager from liability for gross negligence or willful
malfeasance.
Section 3.5 Powers and Duties of Members. The Members who are
not Managers shall not participate in the day-to-day control of the business
affairs of the LLC, transact any business on behalf of the LLC, or have any
power or authority to bind or obligate the LLC.
Section 3.6 Compensation of Manager, Members or Affiliates and
the Reimbursement of Expenses. The Manager will receive reimbursement for all
direct out-of-pocket expenses incurred on behalf of the LLC, within the course
and scope of its employment.
Section 3.7 Title to Property. Title to the Property and to
all other LLC assets shall be held in the name of the LLC.
Section 3.8 Special Powers of Attorney. Each Member hereby
constitutes and appoints the Manager of the LLC and any successor of a Manager,
with full power of substitution, the true and lawful attorney-in-fact of the
undersigned, with the power to execute, acknowledge, record, file and/or publish
(a) any amendment to the Articles; (b) any instrument, certificate, or document
required by any regulatory agency, laws of the United States, any state,
or any other jurisdiction in which the LLC is doing or intends to do business
or which the Manager deems advisable to file or record; and (c) any documents
which may be required to continue the business of the LLC to admit additional or
substitute Members or to dissolve or terminate the LLC pursuant to the terms of
this Agreement, PROVIDED HOWEVER, that any such document, instrument,
certificate is not inconsistent with the terms of this Agreement;
The power of attorney is expressly limited to those matters set forth
in (a) - (c) above and no Manager shall take any action as attorney-in-fact for
the Members beyond the authority expressly set forth in this Agreement or alter
the rights of the Members with regard to allocations, distributions or other
financial matters, voting, receipt of reports and information, or limitations on
actions by a Manager under the Agreement, unless the Member has given a power of
attorney to a Manager expressly for that purpose.
The foregoing grant of authority is a special power of attorney coupled
with an interest in favor of the Manager and as such, shall be irrevocable and
shall survive and shall not be affected by the subsequent disability,
incapacity, death, incompetency, dissolution, or insanity of all or any of the
Members.
ARTICLE 4 - DISTRIBUTIONS AND ALLOCATIONS
Section 4.1 Distributions and Allocations Generally. All
distributions of LLC funds to the Members and allocations of taxable income and
loss shall be allocated according to this Article 4 and shall be made in
accordance with good and sound business and accounting practices at such times
as the Manager may determine in its sole discretion. The LLC shall account for
income, losses and distributions as if the LLC were a partnership, and shall
file all tax returns and reports on that basis under Subchapter K of the Code.
Section 4.2 Distributable Net Proceeds. Subject to Section
4.1, the Distributable Net Proceeds shall be allocated and distributed
periodically (as determined by the Manager) to the Members in the Ownership
Interest Percentages set forth in EXHIBIT "B" as they may change from time to
time.
Section 4.3 Net Losses, Income and Gain. Except as otherwise
provided in the Special Allocation Provisions if any, set forth in EXHIBIT "C"
all taxable income, loss or capital gains or losses, or any other item
reportable by the LLC for tax purposes shall be allocated in the Ownership
Interest Percentages set forth in Section 4.2 (subject to any special allocation
provisions herein) and EXHIBIT "B" as they may change from time to time.
Section 4.4 LLC Reserves. The LLC shall at all times maintain
sufficient reserves to pay its debts as they become due in the normal course of
business. LLC Reserves that are distributed to the Members shall be allocated
and distributed to the Members as provided above for Distributable Net Proceeds.
ARTICLE 5 - BOOKS AND RECORDS; ACCOUNTING; TAX ELECTIONS
Section 5.5 Books and Records. At all times during the LLC's
existence, the Manager shall keep or cause to be kept true and accurate books of
account. Such books and records shall be kept in accordance with the method of
accounting selected by the Manager for federal income tax purposes. Each Member,
or his duly appointed representative, shall, at all reasonable times, have
access to such books. The Manager shall maintain, at the registered office
of the LLC, the following:
(a) a list of all Members' names and addresses
together with their Capital Contributions;
(b) a copy of the Articles, this Agreement and all
amendments thereto;
(c) copies of minutes of all meetings, including
written consents obtained from Members in lieu of
meetings;
(d) copies of LLC tax returns and financial
statements; and
(e) any other record required to be maintained by
law.
Section 5.2 Annual Reports. After the end of each fiscal year,
the Manager shall cause to be delivered to each person who was a Member at any
time during the fiscal year, an annual report containing the following:
(a) unaudited financial statements of the LLC,
including a balance sheet as of the end of the LLC's
fiscal year and a statement of income and expenses;
(b) a general description of the activities of the
LLC during the period covered by the report; and
(c) a report of any material transactions between the
LLC and the Manager, any Members, or Affiliates,
including fees or compensation paid by the LLC and
the services performed by such Members, the Manager,
or any such Affiliates, for such fees and
compensation.
Section 5.3 Tax Information. The Manager shall deliver to all
Members any informational returns required by the Internal Revenue Code and the
laws of any applicable State.
Section 5.5 LLC Elections. The LLC shall be taxed as a
partnership for tax purposes. The Manager shall have the right to make all
elections for the LLC provided for in the Code, including, but not limited to,
the elections provided for in Section 754 of the Code.
Section 5.6 Fiscal Year. The fiscal year of the LLC (shall be
the calendar year) shall end on the 31st day of December in each year.
ARTICLE 6 - MEMBERS' RELATIONSHIPS
Section 6.1 Transfer of a Member's Interest--Approval.
Except as provided in this Article 6, no Member shall sell, transfer, assign,
convey, encumber or otherwise dispose of, by operation of law or otherwise, the
whole or any part of his interest in the LLC, without the prior express written
consent of Members holding more than one percent of the Ownership Interests
(excluding the proposed transferor Member). The approval right regarding the
transfer of Ownership Interests may be unreasonably withheld. Any such
unauthorized transfer shall not vest the transferee with any rights as a Member
other than the transferor's right to receive distributions. Nothing contained in
this Article 6 shall prevent an individual partner from
transferring his or her interest in the LLC to a revocable trust with the
individual partner being the grantor and initial trustee.
Section 6.2 Assignment of Member's Interest as Security for
Loan. A Member shall not be entitled to assign his Ownership Interest as
security for a loan, unless approved under the same criteria as a transfer under
Section 6.1.
Section 6.3 Right of First Refusal. If a sale or other
transfer of a Member's interest to a third party is otherwise approved, the
remaining Members shall have a right of first refusal to match any bona fide
offer to purchase a Member's interest in the LLC on the same terms and price as
such bona fide offer, to be elected and exercised within thirty (30) days after
delivery of a Sale Notice by the selling Member to the Manager. The Members
shall have the right to purchase not less than all of such Member's interest, to
be allocated pro rata based on the purchasing Members' Ownership Interests at
such time.
Section 6.4 Additional Restrictions. No Member shall sell,
transfer or dispose of, by operation of law or otherwise, all or any part of his
interest in the LLC except by written instrument satisfactory to the Manager,
accompanied by such assurance of the genuineness and effectiveness of each such
signature and either the registration of such interest pursuant to an opinion of
legal counsel satisfactory to the Manager that registration of such interest
pursuant to the Securities Act of 1933, as amended, and applicable state
securities laws or pursuant to an opinion of legal counsel satisfactory to the
Manager that registration of the interest subject to such transfer is not
required. No assignment shall be valid or effective unless such assignment is in
compliance with the conditions contained in Article 6. Any unauthorized
assignment or transfer shall be void ab initio.
Section 6.5 Legend Conditions. Any documents and records
evidencing a Member's interest in the LLC, whether issued originally or
subsequently, shall bear and be subject to legend conditions as follows:
"Ownership Interests evidenced by this certificate or
otherwise may not be sold, assigned, transferred or otherwise disposed of to any
person or entity unless authorized or approved pursuant to the Articles of
Organization and Operating Agreement. Any unauthorized assignment or transfer
shall be void ab initio. Assignees of an Ownership Interest may become
substituted Members only as provided in the Articles of Organization and
Operating Agreement."
Section 6.6 Substitute Members. No assignee of the whole or
any portion of a Member's Ownership Interest (which shall include any purchaser,
transferee, donee, testate or intestate transferee or any other recipient
receiving such Ownership Interest for any reason) shall have the right to become
a substituted Member in place of his assignor, unless the assignor designates
such an intention; the provisions of this Operating Agreement are complied with,
including the approval and execution of any documents required by the Manager;
the acceptance, adoption and approval in writing of all of the terms and
provisions of this Agreement, including any amendments; and the assignee pays
or, at the election of the Manager, obligates himself to pay all reasonable
expenses connected with the admission.
Except for a transferee admitted as a Member pursuant to this
Section, any transferee shall hold his Ownership Interest as an assignee and
shall only be entitled to the proportionate share of each transferee's interest
in the profits of the LLC distributed in
accordance with the terms and conditions of this Agreement, but such transferee
shall not become a Member and shall have no voting rights in any LLC decisions
or be entitled to any other rights of a Member unless he becomes a Member.
Section 6.7 Withdrawal of a Member. Except as provided in this
Agreement, no Member shall be entitled to withdraw or retire from the LLC. The
amount that such Member is entitled to shall be the value of the Capital Account
of the Member and shall include any expenses associated with a withdrawal
transaction and determination of value. A Member shall be liable to the LLC and
other Members for any damages caused by any withdrawal or attempted withdrawal.
The LLC shall not be required to make any distributions to such Member until the
amount of such damages are finally determined and shall have the right to set
off such damages against any distributions.
Section 6.8 Terminating Events. The death, insanity,
dissolution, termination, retirement, expulsion or Bankruptcy of a Member shall
dissolve and terminate the LLC unless Members owning more than fifty percent
(50%) of the remaining Ownership Interests and the Manager elect to continue the
LLC. Upon the death, dissolution, termination, incapacity or Bankruptcy of a
Member the personal representative, trustee or successor in interest of the
deceased, incapacitated, dissolved or bankrupt Member shall become an assignee
of the Ownership Interest of the deceased, incapacitated, dissolved or bankrupt
Member; provided, however, that such assignee may become a substituted Member
only in compliance with this Agreement.
Upon the death, incapacity, retirement, or withdrawal of a Member, the
remaining Members shall pay to the deceased, incapacitated, retired or withdrawn
Member or such Member legal representative the fair market value of Member's
interest as of the date thirty days after the date of death, incapacity,
retirement, or withdrawal of a Member. Upon the death, incapacity, retirement or
withdrawal of a Member, the remaining Members shall have sixty days following
said event or sixty (60) days from the appointment of a personal representative,
whichever is longer, to pay the fair market value of the Members interest as
determined herein. The payment shall be made to the retired or withdrawn Member
or to the legal representative of the deceased or incapacitated member however
the case may be.
Section 6.9 Repurchase of Ownership Interests. The LLC shall
have the right to purchase any Member's Ownership Interests in the LLC upon
request of a Member upon terms mutually agreeable to it and the Member if the
purchase does not impair the capital or the operation of the LLC and is approved
by Members holding a majority of the remaining Ownership Interests. The LLC is
under no obligation to ever repurchase any Members interest in the LLC, and
there is no assurance that the LLC will ever repurchase any Member's interest in
the LLC.
Section 6.10 Rights of Members to Receive Property Other Than
Cash. No right is given to a Member to demand and receive property other than
cash in return for his Capital Contributions.
Section 6.11 Encumbrance of a Member's Interest. Except as
otherwise provided herein, no Member may encumber his interest in the LLC.
Section 6.12 Dissolution or Partition. Except as provided in
Section 7.1 (c), no Member shall have the right to, and each Member hereby
agrees that it shall not, seek to dissolve
or cause the dissolution of the LLC or to seek to partition or otherwise cause a
partition of the LLC Property, whether by court action or otherwise, it being
agreed that such a dissolution (or attempted dissolution) or partition (or
attempted partition) would cause a substantial hardship to the LLC and the
remaining Members.
Section 6.13 Right to Purchase Other Property. Nothing
contained in this Agreement shall be deemed to restrict in any way the freedom
of each member or Manager to conduct any other business or any other activity
whatsoever, including without limitation, the acquisition, ownership,
development, construction, leasing, operation, management and sale of real
property, without notice or accountability to the LLC or Members, without
participation by the LLC or Members, and without liability to any of them, even
if such business or activity competes with the LLC's business.
Section 6.14 Meetings of, or Actions by, the Members. Meetings
of the Members to vote upon any matters on which the Members are authorized to
take action, under this Agreement or any amendments, may be called at any time
by any Manager, or by one or more Members who hold at least Twenty percent (20
%) of the then Ownership Interests be delivering written notice to the Manager,
either in person or by first class mail. Within ten days following receipt of
such request, the Manager shall cause a written notice, either in person or by
first class mail, to be given to the Members entitled to vote at such meeting
that a meeting will be held at a time and place fixed by the Manager not less
than 10 days nor more than 25 days after the mailing of the notice of the
meeting. A detailed statement of any proposed action for adoption by the Members
and a verbatim statement of any proposed amendment to this Agreement shall be
included with the notice of a meeting. The meeting shall be held at the
principal office of the LLC. All expenses of the meeting and notification shall
be borne by the LLC. Only Members who are not in default shall be entitled to
vote as Members.
Members who hold a majority of the then Ownership Interests
eligible to vote on any matter shall constitute a quorum for the transaction of
that specific action at any meeting. Personal presence of the Members shall not
be required; provided that an effective written consent to or rejection of such
proposed action is submitted to the Manager. Attendance and voting in-person by
a Member at any meeting shall revoke any previously submitted written consents
or rejections of the proposed action. Submission of a later written consent or
rejection with respect to any action shall revoke an earlier one.
Any matter on which the Members are authorized to take action,
under this Agreement or under law, which may be taken by the Members without a
meeting and shall be as valid and effective as an action taken by the Members
without a meeting, if written consents to such action by the required number of
Members are (a) signed by all the Members entitled to vote upon such action at a
meeting; and (b) delivered to the Manager.
Section 6.15 Election of Managers/Removal of Managers.
Initially there shall be One (1) Manager. The Manger shall be initially
appointed and shall continue to serve until such Manager shall resign, shall be
removed, or shall otherwise be unable to serve. During the term of this LLC, a
Manager may be removed for any reason by a vote of those Members who hold more
than one percent of the then Ownership Interests, and for cause by a vote of
those Members holding a majority of the Ownerships Interests. A Manager may
resign on thirty (30) days notice to the Members. The resignation, death,
incapacity, dissolution, termination or removal of a Manager shall not dissolve
or terminate the LLC.
ARTICLE 7 - DISSOLUTION AND WINDING UP
Section 7.1. Dissolving Events. This LLC shall be dissolved
upon the occurrence of any one of the following events:
(a) on the dissolution, termination, death or
Bankruptcy of a Member unless all Members holding
more than fifty percent (50 %) of the remaining
Ownership Interests elect to continue the business
within ninety (90) days after the occurrence of such
event;
(b) on the voluntary sale, condemnation or
foreclosure of substantially all of the LLC property;
(c) on the election to dissolve evidenced by the
affirmative vote or written consent of all Members;
or
(d) on the expiration of the term of the LLC.
Section 7.2 Liquidation and Final Distribution of Proceeds. On
dissolution for any reason whatsoever, the LLC shall thereafter engage in no
further business other than that necessary to wind up the business and net
profits or net losses during the winding-up period shall be allocated in the
same ratio as net profits and net losses were allocated prior to dissolution.
The Manager shall file any required statement of intent to dissolve. The
proceeds from the liquidation of LLC assets shall be distributed in the
following order:
(a) the expenses of liquidation and the debts of the
LLC shall be paid;
(b) to the establishment of any reserves which the
Manager or its successors may deem reasonably
necessary for the contingent or unforeseen
liabilities or obligations of the LLC. Such reserves
shall be paid to a trust to be held for the purpose
of disbursing such reserves in payment of any such
liabilities or obligations and, at the expiration of
such period as the Manager shall deem advisable, the
trust balance remaining shall be distributed in the
manner provided below in this Section 7.2;
(c) to the Members in accordance with their positive
Capital Account balances (after all allocations of
gain or loss) in the manner provided in this
Agreement within the later of: (i) the end of the
taxable year in which the liquidation occurs; or (ii)
ninety (90) days from the date of liquidation;
(d) any remainder in accordance with the Members'
Ownership Interest percentages.
Any shortages in any category (a), (b) or (c) above shall be allocated first
based on the priority of claims and then ratably among claims and obligations of
equal priority.
Section 7.3 Time of Liquidation. A reasonable time shall be
allowed for the orderly liquidation of the LLC's assets and the discharge of
liabilities to creditors so as to enable the Manager to minimize the losses
attendant upon a liquidation.
Section 8.11 Rebates, Kickbacks and Reciprocal Arrangements.
No Manager nor its Affiliates shall receive any rebates or kickbacks or
participate in any reciprocal business arrangements that would circumvent any
federal or state securities laws or participate in any reciprocal business
arrangements that would circumvent the restrictions against dealing with
affiliates or promoters or would lower the profits or increase the losses of the
LLC.
Section 8.12 Counterparts and Execution. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original
Agreement, and all of which shall constitute one Agreement among each of the
parties, notwithstanding that all of the parties are not signatories to the
original or the same counterpart to be effective as of the day and year first
set forth above. This Agreement may also be executed by facsimile followed by
overnight transmission of the original execution copy.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
MANAGER:_______________________
MEMBERS:
EXHIBIT "A"
5,332,713 shares of common stock of Third Millennium Industries, Inc.
EXHIBIT "B"
MEMBERS OWNERSHIP PERCENTAGE
------- --------------------
▇▇▇▇ ▇▇▇▇▇▇ 1.5%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 49.25%
▇▇▇▇ ▇▇▇▇▇▇▇ 49.25%
EXHIBIT "C"
TO
__________________________, L.L.C.
Special Allocation Provisions
NONE
EXHIBIT "D"
The terms used in this Agreement shall have the following meanings
(unless otherwise provided herein):
"Agreement" shall mean this Operating Agreement of Granite
Properties, L.L.C., as amended from time to time.
"Business" shall mean the business of the LLC which shall be
to own, hold, maintain, sell, mortgage, manage and otherwise deal with any real
and personal property owned by this limited liability company and to engage in
any other business allowed under the law.
"Affiliate" shall mean any person or entity which (i) directly
or indirectly controls, is controlled by, or is under common control with a
Manager or Member; or (ii) owns or controls 10% or more of the outstanding
voting securities of a Manager or Member, or (iii) is an officer, director,
employee, partner or trustee of any entity described above; or (iv) is an entity
for which a Manager or a Member is an officer, director, partner or trustee.
"Articles" shall mean the Articles of Organization of the LLC,
as amended from time to time.
"Bank" shall mean the bank designated by the Manager as the
LLC's primary bank.
"Bankruptcy" shall mean the initiation of proceedings under
Title XI of the United States Code for any Member, whether voluntary or
involuntarily, or, the appointment of a trustee, administrator, receiver or
other entity for the purpose of administering assets of any Member for the
benefit of creditors; or, any other transfer of assets by a Member, whether
voluntary or involuntarily, for the benefit of creditors.
"Bankruptcy Code" shall mean Title XI of the United States
Code as now or hereafter amended.
"Capital Accounts" shall mean the accounts maintained with
respect to Members as described in Section 2.4.
"Capital Contributions" shall mean the contributions in cash
and property of the Members to the capital of the LLC as described on EXHIBIT
"B".
"Code" shall mean the Internal Revenue Code of 1986, as now or
hereafter amended.
"Distributable Net Proceeds" shall mean, as of any date, all
cash funds of the LLC from whatever source derived on hand at such date, after:
(a) payment of all operating expenses of the LLC
payable at such time;
(b) payment of then due principal and all
accrued interest on the Property Loan;
(c) payment of all costs of purchase, sale,
refinance, condemnation or other
disposition, including any fees paid to a
Manager or an Affiliate of a Manager or
Member;
(d) payment of all then-due unsecured
indebtedness of the LLC; and
(e) provision of LLC Reserves.
"LLC" shall mean the Missouri limited liability company first
named above.
"LLC Property" shall mean all real and personal property owned
by the LLC, including the Property.
"LLC Reserves" shall mean the cash reserves established by the
Manager for any expenses related to the LLC Property, and for the payment of any
future contingencies and anticipated obligations considering, among other
things, projected cash requirements for the LLC, the amount and source of cash
on hand, and the projected receipt of cash by the LLC from operations.
"Manager" (referred to herein as Manager whether one or more)
shall initially, mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and any of its successors, replacements
or other parties elected or appointed as provided herein. If there are more than
two Managers, they shall act by majority vote or, if only two Managers, by
unanimous vote. If the LLC shall be managed by Members, then any reference to
Manager herein shall be disregarded.
"Members" shall mean those parties who have been admitted as
members in the LLC.
"Members' Loan" shall mean any loan the Members make to the
LLC at any time during the LLC's existence not including the Property Loan as
provided in Section 2.8.
"Ownership Interest" shall mean the capital and profits
ownership of a Member in the LLC, as generally described in Section 4.2, and
shall include all rights to participate in the management of the LLC granted to
Members. For the purpose of voting, the Distributable Net Proceeds allocation
percentages set forth in Section 4.2 shall be deemed to be the "Ownership
Interest Percentages".
"Ownership Interest Value" shall mean the value of the
Ownership Interest equal to the product of the Ownership Interest and the
Appraised Value of the LLC Property, reduced by all Property Debt and all
obligations of the LLC.
"Prime Rate" shall mean the prime rate of interest announced
or published from time to time by the Bank.
"Pro Rata" shall mean the ratio that each Member's Ownership
Interest bears to the Ownership Interests of all the Members.
"Property" shall mean all real and personal property described
on EXHIBIT "A" attached hereto and made a part hereof.
"Property Mortgage" shall mean a mortgage and/or other
security instrument on the Property which secures the Properly Loan.
"Regulations" shall mean the Treasury Department Regulations
issued pursuant to the Code.
"Sale Notice" shall mean a written notice delivered in
connection with a sale of a Member's Ownership Interest setting forth (a) the
name(s) of the person(s) to whom a sale is proposed to be made, (b) the purchase
price to be paid for the Ownership Interest, including a complete description of
any and all non-cash consideration to be derived by the Selling member or a
Selling member's Affiliate, (c) the terms and conditions of the sale, (d) the
date of the closing of the sale and (e) all other pertinent details of the
transaction.
"Service" shall mean the Internal Revenue Service.
"Successor Manager" shall mean a Manager or Managers who the
Members select to replace the removed Manager or Managers as provided by Section
6.15.