HomeMy WebLinkAbout14-2182 Supreme Court ofPennsylvania
Court of Common Pleas For Prothonotary Use Only:
Civil Cover Sheet Docket No:
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Commencement of Action:
S Complaint ❑ Writ of Summons ❑ Petition
E Transfer from Another Jurisdiction E] Declaration of Taking
C Lead PI intiff's Name: Lead Defendant's Name:
T s
Dollar Amount Requested: ❑within arbitration limits
I Are money damages requested? ''Yes ❑ No (check one) N arbitration limits
O
N Is this a Class Action Suit? ❑ Yes IWNo Is this an MDJAppeal? ❑ Yes g No
A Name of Plaintiff /Appellant's Attorney: Q�
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Updated 1/1/2011
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12: C
ADAM C. ABRAM and ) IN THE COURT OF COMMON
SUSAN A. ABRAM, his wife, ) PLEAS OF CUMBERLAND
Plaintiffs ) COUNTY, PENNSYLVANIA
VS. ) CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC, ) NO.
Defendant )
NOTICE
TO DEFENDANT NAMED HEREIN:
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION
WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED,
BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO, THE CASE MAY PROCEED WITHOUT YOU, AND A JUDGMENT MAY BE
ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY
MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF
REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
TELEPHONE: (717) 249 -3166
ADAM C. ABRAM and ) IN THE COURT OF COMMON
SUSAN A. ABRAM, his wife, ) PLEAS OF CUMBERLAND
Plaintiffs ) COUNTY, PENNSYLVANIA
vs. ) CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC, ) NO.
Defendant )
COMPLAINT
AND NOW come the above -named Plaintiffs, by their attorney Samuel L. Andes, and
make the following Complaint against the Defendant int his matter:
1. The Plaintiffs are Adam C. Abram and Susan A. Abram, his wife, adult individuals
who reside at 115 Bryce Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. The Defendant is John Adams Investments, LLC, a limited liability company
organized under the laws of the Commonwealth of Pennsylvania with its registered office at 115
Bryce Road, Camp Hill, Cumberland County, Pennsylvania 17011.
3. The Defendant is engaged in the business of the acquisition, development,
improvement and leasing of real estate and has been so engaged since its creation.
4. Since the creation of Defendant, Plaintiffs, at the request of Defendant and for
Defendant's direct benefit, have advanced and loaned to Defendant substantial sums of money to
finance Defendant's business operations.
5. The Defendant agreed to repay to Plaintiffs the funds Plaintiffs had loaned to the
company, together with interest on the unpaid balance of those funds at the rate of 4% per
annum.
6. Defendant has, to date, failed to repay Plaintiffs the monies Plaintiff loaned to
Defendant and the interest on those funds.
7. Defendant owes Plaintiffs, on account of said loans, as of 27 March 2014, the sum of
$716,068.65, including interest.
8. Defendant, by its failure to repay the loan it owes to Plaintiffs have injured Plaintiffs
in the amount of $716,068.85.
WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of
$716,068.85, plus interest at 4% until judgment is entered and interest at the legal rate thereafter,
plus costs of suit.
S uel L. Andes
Attorney for Plaintiffs
Supreme Court ID # 17225
525 North 12 Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761 -5361
I verify that the statements made in this document are true and correct. I understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities).
Date: q/
A C. ABRAM
t
I verify that the statements made in this document are true and correct. I understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities) .
Date:
SUS UN ABRAM
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson sr t
Sheriff THE PROT HONG :Ar∎
Jody S Smith
Chief Deputy 2014 APR 30 N I 3. 0'1 Richard W Stewart CUMBERLAND COUNTY
Solicitor PENNSYLVANIA
Adam C Abram (et al.)
vs. Case Number
John Adams Investments, LLC 2014-2182
SHERIFF'S RETURN OF SERVICE
04/24/2014 07:05 PM - Deputy Dawn Kell, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Susan Abram, Owner,who
accepted as"Adult Person in Charge"for John Adams Investments, LLC at 115 Bryce Road, Hampden
Township, Camp Hill, PA 17011.
kt
DAWN KELL, DEPUTY
SHERIFF COST: $45.44 SO ANSWERS,
April 28, 2014 RONNK ANDERSON, SHERIFF
(c)CountySuite Sheriff,Teleoscft,Inc.
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ADAM C. ABRAM and IN THE COURT OF 6 Aft 1 l: (l 4
SUSAN A. ABRAM, his wife PLEAS OF CUMBE
Plaintiffs COUNTY, PENNSYL %,LA 0 0' '"
SYLVANIA
vs. CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC,
Defendant NO. 14-2182
PETITION TO INTERVENE
AND REQUEST FOR STAY
OF JOHN ROYAL
AND NOW comes Petitioner/Proposed Intervener, John Royal, by his attorneys, Saidis,
Sullivan& Rogers, and files the following Petition to Intervene pursuant to Pa. R. C. P. 2326, et
seq. and Request for Stay:
Parties and Background
1. The Petitioner/Proposed Intervener is John Royal, an adult individual residing at
1109 Oak Lane,New Cumberland, PA 17070.
2. John Royal is a Member and 50% owner of the above-named Defendant, John
Adams Investments, LLC, a Pennsylvania limited liability company (referred to at times herein
as the "Company").
3. John Royal is also one of two equal Managers of Defendant John Adams
Investments, LLC.
4. The other Member and 50% owner of Defendant John Adams Investments, LLC
is Adam Abram, one of the plaintiffs in this action.
t
5. Adam Abram is also a Manager, together with John Royal, of Defendant John
Adams Investments, LLC.
6. John Royal and Adam Abram are the only two Members and only two Managers
of John Adams Investments, LLC.
The Pending Lawsuit
7. In the Complaint filed in this matter on April 10, 2014, Adam Abram and his wife
are suing the Company of which he is a Member and Manager on the basis of alleged loans they
claim to have made to John Adams Investments, LLC.
8. Adam Abram did not provide notice to John Royal that he and his wife were
filing this lawsuit against the Company.
9. The registered office of the Company is 115 Bryce Rd., Camp Hill, PA 17011,
which is also the home address of Plaintiffs, Adam and Susan Abram. (See paragraphs 1 and 2
of the Complaint.)
10. Presumably, Plaintiffs served the Company with their Complaint at their own
home address.
11. The Company did not advise John Royal that it had been sued by Plaintiffs.
12. John Royal was first advised that a Complaint had been filed against the
Company by a letter mailed by Plaintiffs' counsel to John Royal's counsel dated six (6) days
after the Complaint had been filed.
13. John Royal was told by Adam Abram or Susan Abram on past occasions that
Adam Abram had put money into the Company, but despite his undisputed status as a Member
2
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and Manager of the Company, John Royal was not advised (and to this date has not been
advised) of all of the specific terms of any alleged loans by Adam Abram to the Company, has
not been advised of all of the dates, amounts and reasons for each of the alleged loans, has not
executed any consents to any such loans, has no knowledge of the disposition of any proceeds of
the alleged loans, and despite repeated requests to Adam Abram, has not been provided with any
documents relating to or memorializing any such loans.
Company Governance Issues
14. Over the past several months, significant differences and disputes have arisen
between Adam Abram and John Royal with respect to virtually all matters relating to the
management of the Company.
15. Pursuant to the Operating Agreement of John Adams Investments, LLC, decision-
making with respect to management of the Company is vested in its Managers.
16. A copy of the John Adams Investment, LLC Operating Agreement is attached
hereto as Exhibit "A."
17. Pursuant to the terms of the Operating Agreement, if there is more than one
Manager (as is the case), majority approval of all Managers is required for any matter arising
within the scope of their authority with respect to management of the Company.
18. Because of the disagreements between John Royal and Adam Abram, the
management of John Adams Investments, LLC has been deadlocked.
3
r
19. Without a majority vote by both Managers (which under the circumstances means
a unanimous vote), the Company cannot lawfully retain legal counsel to defend itself in this
lawsuit.
Threat to the Company
20. The Company cannot defend itself in this lawsuit without a unanimous vote of the
two (2) Managers, clearly an impossibility given that Plaintiff, Adam Abram, is one of the two
(2) Managers; hence, the intervention of John Royal is necessary to assert defenses to Plaintiffs'
claims.
21. Any attempt by John Royal to seek agreement from Adam Abram to retain the
services of an attorney on behalf of John Adams Investments, LLC and to defend the Company
in this action would be a futile act.
22. The disagreements between John Royal and Adam Abram and the resultant dead-
lock in management of the Company means that, as a practical matter, the interests of the
Company in defending this action cannot and will not be asserted by it, and the predictable result
is that Adam Abram and his wife will eventually cause a judgment by default to be entered
against the Company.
23. John Royal, as a 50% Member and Manager of the Company, has a direct and
immediate interest in all matters affecting John Adams Investments, LLC.
24. John Royal has a legally enforceable interest in John Adams Investments, LLC
that will be affected by the determination of this action brought by Adam Abram.
4
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25. Without intervention by John Royal, it is reasonably predictable that a default
judgment will be entered against John Adams Investments, LLC, and Adam Abram will then
proceed to pay the judgment amount to himself and his wife from Company assets, or commence
execution proceedings against the Company, all without any defense being entered on behalf of
John Adams Investments, LLC because of the deadlocked status of management of the
Company, thereby affecting John Royal's 50% ownership interest in John Adams Investments,
LLC.
26. If permitted to intervene, John Royal intends to file a pleading in the form
attached hereto as Exhibit"B," asserting defenses on behalf of the Company to the action filed
against it by Adam Abram and his wife, together with a Counterclaim and New Matter Cross-
Claim Pursuant to Pa. R.C.P. §1031.1 seeking an accounting, and liquidation and dissolution of
John Adams Investments, LLC through a liquidating trustee.
Request for Stay
27. Because of the risk of a potential default judgment being entered against the
Company before proper consideration of this Petition to Intervene, John Royal respectfully
requests that all proceedings be stayed pending consideration of his Petition to Intervene.
Non-concurrence Presumed
28. Undersigned counsel sought the concurrence of Plaintiffs' counsel in the Petition
to Intervene by letter e-mailed on May 1, 2014. In a follow-up inquiry telephone call placed on
May 5, 2014, undersigned counsel was advised that Plaintiffs' counsel was out of the office for
5
the rest of the week. Without having received a response, the non-concurrence of Plaintiffs'
counsel is presumed.
WHEREFORE, John Royal respectfully requests that the Court issue a Rule to Show
Cause in the form provided herewith and thereafter grant this Petition to Intervene and allow him
to intervene as a party in this action.
SAIDIS, SULLIVAN & ROGERS
By
Daniel L. Sullivan, Esquire
Attorney I.D. PA 34548
John A. Feichtel
Attorney I.D. PA 77426
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Email: dsullivannssr-attorneysxom
Attorneys for John Royal
6
VERIFICATION
I, John Royal, hereby state that the facts set forth in the foregoing document are true and
correct to the best of my personal knowledge or information and belief. I am aware that false
statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn
falsification to authorities.
Jo Royal
�I
CERTIFICATE OF SERVICE
AND NOW, May 6, 2014, I, Daniel L. Sullivan, Esquire, hereby certify that I did serve a
true and correct copy of the Petition to Intervene upon all counsel of record and interested
parties by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at
Carlisle, Pennsylvania, addressed as follows:
Samuel L. Andes, Esq.
525 North 12`h Street
P. O. Box 168
Lemoyne, PA 17043-1213
John Adams Investments, LLC
115 Bryce Road
Camp Hill, PA 17011-1303
SAIDIS, SULLIVAN & ROGERS
By
Daniel L. Sullivan
Attorney I.D. #34548
John A. Feichtel
Attorney I.D. #77426
26 West High Street
Carlisle, PA 17013
Phone: (717) 243-6222
Email: dsullivangssr-attorne s
Attorneys for John Royal
LIMITED LIABILITY COMPANY AGREEMENT
OF
JOHN ADAMS INVESTMENTS, LLC
DATED THE 1ST DAY OF NOVEMBER, 2009
EIN: 27-1357996
. .
^
TABLE OF CONTENTS
RECITALS
ARTICLE 1. []EF/N]TIONS^^~^-`'^~^`-^^'`~~'^~'^^'^^~^'^^'^''^^'~'`~~^^~^^^-^^`~^^^-'`^~^^^~-
1.1 Scope .------------------------
1�� Defined Terms
ARTICLE 11. THE COMPANY ~'~^^^`^^~'~'^'~'^^^^^'-^^^~^'~'^^'^``^'^^^~^'^'`'^^^~^`~`^~'^~^^^'~'
2.1 Status
2.2 NGnl8 --.---------------,------. -----------''
2.3 T8rm -------------------------------------
2.4 PUrpOSB ----------------------' ------------
�.� p� �K�8 �� ��UOiD88S------------. ------------''
2.6 Registered Agent and Registered ...-----------.
ARTICLE Ill. MEMBERS
.....-.....~^-.~,....~....~..^^^.~..^.^~,.`~.^^.~'^'-^^--~^^`^'^^^^^^~'^'^~
3.1 IdGOtifiC8fOO-.--------------------'
3.2 Changes and Verification of Membership Interests-------------''
3.3 K�8OOerOfAJ�ing-------------------------------
3/4 Fiduciary [)U�eS ------------------- ----------''
�.5 IOdeDlOi�C8f�>DOfK�8OOb8cG--.----------. -----------'
3.6 Compensation--------------------------------'
�.7 [�GSi�O8�ODDf@K�8�l�8[--------------------------
3.8 Transfer Of Membership Interest----------.. ------------
�.� [)��SOC��iOO---------------------------------'
3.10 Redemption Of Dissociating Member's Interest...............................................
-----------'
ARTICLEIV.FINANCE,.�..^....,,...^.^.�,,.......�..'.�..^�.......^�^.�..^�,^.....�..�...�....
4.1 [|ODt[butiDDS.--.-,---.---------~---
4.2 Allocation of Profits and LOSSeS-----------. -----------'�
4.3 Tax Allocations
--------------------'' ----------'
4.4 Distributions-.----~--.------------' -----------'
4.5 Capital AcxcOUOfS-----------------------^-------'
ARTICLE V. RECORDS AND ACCODNT7NG........,^.~^.^.~.~.,~~.~~..~.~..^....,~.,.
5.1 Maintenance Of Records
---------------..
5.2 Financial Accounting------.---.,--.---- ----------'
5.3 F�epO�G -----------------------------------'
5.4 Tax [|O[OOli3Oce-------------~----~------------'
....................
ARTICLE V1'MANAGEMENT
.............^...^..-~~.~...~.',.-.^.,~,-,,^,,,^~,,,,~^.~,~,,,
6.1 Representative MBO8 Ot--------------..
6.2 ��Dl8 [}8VOfedfO �}US'-8SS--------------- ---------
6.3 Powers and Authority-------.---------- ----^----~'�
6.4 K�8DOeFOf/\CfOg-'.----.-----------'' ------^---
6.5 OVV8Fand /\Ufh0r�»-------,~_____-----------'
6.6 Fiduciary [)Uf��/ -----''`----~------------------~''
.. .....................
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. .
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6.7 Indemnification of Managers ...........................................................................
6.8 CODlD8Ds@tiOO --------------------------------
6.9 T8OUr8-----.------..-----------------------
ARTICLE Vill
....'.'.......'.~.,~..-^......~^.......-^.....,.~,...^..^-..,'.....'....-..~[]|SS[][-[JTION
7.1 Events Of Dissolution
-------------------------- ..
7.2 Effect Of Dissolution
----------------------_---- --'
ARTICLE V[\L...~..-,.......'.'....~..~..~~...^........-~~.~..~..,...GENERAL PROVISIONS
8.1 /\OleDdDl8OtS-------------------------------. .
8.2 K/ODliOe8-------.-------------------------'
8.3 Investment Representation -------------------------'
8.4 R8Solu�OOOfDisputes ---------------------------'�
8.5 ��O�C8S ----..-------------------------------
8.6 Resolution Of Inconsistencies
------------------------'
8.7 P[DVisi]OS Applicable to TrnnSfePeBS-------------------. '.
8.8 Additional Instruments
8.9 Headings __________________________.
8.10 [\]OlpUf@f�>OOf��nl8----------------------------''
8.11 Entire /�n[8eD7Bnt ------------------------------'
8.12 Waiver
8.13 General Construction Principles---------------------.
8.1^1 ��iDdiO EfeK�--------------------------------'
8.15 Governing L8VV---------------------------' —' —'
8j6 <�OUnfSrp8�S --------------------------------''
`
LIMITED LIABILITY COMPANY AGREEMENT
OF
JOHN ADAMS INVESTMENTS, LLC
THIS AGREEMENT is among John Adams Investments, LLC, a Pennsylvania limited
liability company (the "Company"), and Adam C Abram and John Royal Jr (the "initial
Members").
RECITALS
The Company is a limited liability company formed under the Pennsylvania Limited
Liability Company Act. The other parties to this Agreement are the Company's initial
Members. The parties intend by this Agreement to define their rights and obligations with
respect to the Company's governance and financial affairs and to adopt regulations and
procedures for the conduct of the Company's activities. Accordingly, with the intention of
being legally bound, they agree as follows:
ARTICLE I. DEFINITIONS
1.1 Scope
For purposes of this Agreement, unless the language or context clearly indicates that a
different meaning is intended, capitalized terms have the meanings specified in this Article.
1.2 Defined Terms
A. "Act" means the Pennsylvania Limited Liability Company Act.
B. "Affiliate," with respect to a Person, means (1) a Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control
with the Person, (2) a Person who owns or controls at least ten percent of the outstanding
voting interests of the Person, (3) a Person who is an officer, director, manager, or general
partner of the Person, or (4) a Person who is an officer, director, manager, general partner,
trustee, or owns at least ten percent of the outstanding voting interests of a Person
described in clauses (1) through (3) of this sentence.
C. "Agreement" means this agreement, including any amendments.
D. "Available Funds" means the Company's gross cash receipts from operations, less
the sum of: (1) payments of principal, interest, charges, and fees pertaining to the
Company's indebtedness; (2) expenditures incurred incident to the usual conduct of the
Company's business; and (3) amounts reserved to meet the reasonable needs of the
Company's business as determined in the sole judgment of the Manager.
E. "Bankruptcy" means the filing of a petition seeking liquidation, reorganization,
arrangement, readjustment, protection, relief, or composition in any state or federal
bankruptcy, insolvency, reorganization, or receivership proceeding.
F. "Capital Account" of a Member means the capital account maintained for the
Member in accordance with Article IV.
G. "Capital Investment" of a Member means an amount equal to the excess of the
cumulative value of the Member's Contributions of cash and property over the cumulative
value of the Member's Distributions of cash and property. For purposes of this definition, (1)
Distributions out of Available Funds are not taken into account and (2) the value of any
Contribution or Distribution of property in kind is as recorded on the Company's books at
the time of the Contribution or Distribution.
H. "Certificate" means the Certificate of Formation filed with the Secretary of State to
organize the Company, including any amendments.
I. "Code" means the Internal Revenue Code of 1986, as amended.
J. "Company" means John Adams Investments, LLC and any successor limited
liability company.
K. "Contribution" means anything of value that a Member contributes to the Company
as a prerequisite for or in connection with membership, including any combination of cash,
property, services rendered, a promissory note, or any other obligation to contribute cash or
property or render services.
L. "Dissociation" means a complete termination of a Member's membership in the
Company in consequence of an event described in Article III.
M. "Distribution" means the Company's direct or indirect transfer of money or other
property with respect to a Membership Interest.
N. "Effective Date," with respect to this Agreement, means the date on which the
Company's existence as a limited liability company begins, as prescribed by the Act.
O. "Entity" means an association, relationship, or artificial person through or by means
of which an enterprise or activity may be lawfully conducted, including, without limitation, a
partnership, trust, limited liability company, corporation, joint venture, cooperative, or
association.
P. "Family," with respect to a Member, means individuals who are related to the
Member by blood, marriage, or adoption. For the purposes of this definition, an individual is
related to the Member by marriage if the person is related by blood or adoption to the
Member's current spouse. For purposes of the definition of "spouse," a Member shall be
deemed to be married to another individual so long as such Member is cohabiting with an
individual to whom the Member is legally married and the Member and the individual are
not legally separated and living apart.
Q. "Member" means an initial Member and any Person who subsequently is admitted
as an additional or substitute Member after the Effective Date.
R. "Membership Interest" means a Member's percentage interest in the Company,
consisting of the Member's right to share in the Company's Profit, receive Distributions,
participate in the Company's governance, approve the Company's acts and receive
information pertaining to the Company's affairs. The Membership Interests of the initial
Members are set forth in Article 3. Changes in Membership Interests after the Effective
Date, including those necessitated by the admission and Dissociation of Members, will be
reflected in the Company's records. The allocation of Membership Interests reflected in the
Company's records from time to time is presumed to be correct for all purposes of this
Agreement and the Act.
S. "Minimum Gain" means minimum gain as defined in Sections 1.704-2(b)(2) and
1.704-2(d) of the Regulations.
T. "Person" means a natural person or an Entity.
U. "Profit," as to a positive amount, and "Loss," as to a negative amount, mean, for a
Taxable Year, the Company's income or loss for the Taxable Year, as determined in
accordance with accounting principles appropriate to the Company's method of accounting
and consistently applied.
V. "Regulations" means proposed, temporary, or final regulations promulgated under
the Code by the Department of the Treasury, as amended.
W. "Taxable Year" means the Company's taxable year as determined in accordance
with Article V.
X. "Transfer," as a noun, means a transaction or event by which ownership of a
Membership Interest is changed or encumbered, including, without limitation, a sale,
exchange, abandonment, gift, pledge, or foreclosure. "Transfer," as a verb, means to effect
a Transfer.
Y. "Transferee" means a Person who acquires a Membership Interest by Transfer
from a Member or another Transferee and is not admitted as a Member in accordance with
Article 3.
ARTICLE II. THE COMPANY
2.1 Status
The Company is a Pennsylvania limited liability company organized under the Act.
2.2 Name
The Company's name is John Adams Investments, LLC.
2.3 Term
The Company's existence will commence on the Effective Date and continue until
terminated under this Agreement.
2.4 Purpose
The Company's purpose is to engage in any lawful act or activity for which a limited
liability company may be organized under the Act.
2.5 Principal Place of Business
The Company's principal place of business is located at 115 Bryce Road, Camp Hill, PA
17011.
2.6 Registered Agent and Registered Office
The Company's registered office in Pennsylvania is located at 115 Bryce Road, Camp
Hill, PA 17011, and its registered agent at that location is Adam C Abram. The Company
may change its registered agent or registered office at any time in accordance with the Act.
ARTICLE III. MEMBERS
3.1 Identification
A. Initial Members. The names, addresses, and Membership Interests of the initial
Members are as follows:
Adam C Abram, 115 Bryce Road, Camp Hill, PA 17011
50 percent
John Royal Jr, 1109 Oak Lane, New Cumberland, Pennsylvania 17070
50 percent
3.2 Changes and Verification of Membership Interests
A. Changes in Membership Interests. The Members' Membership Interests may be
changed only with the approval of all Members and Managers.
B. Verification of Membership Interests. Within 10 days after receipt of a Member's
written request, the Company will provide the Member with a statement of the Member's
Membership Interest. The statement will serve the sole purpose of verifying the Member's
Membership Interest, as reflected in the Company's records, and will not constitute for any
purpose a certificated security, negotiable instrument, or other vehicle by which a Transfer
of a Membership Interest may be effected.
3.3 Manner of Acting
A. Meetings.
(i) Right to Call. Any Member or combination of Members whose
Membership Interest exceeds 10 percent may call a meeting of
Members by giving written notice to all Members not less than 10 nor
more than 60 days prior to the date of the meeting. The notice must
specify the date of the meeting and the nature of any business to be
transacted. A Member may waive notice of a meeting of Members
orally, in writing or by attendance at the meeting.
(ii) Proxy Voting. A Member may act at a meeting of Members through a
Person authorized by signed proxy.
(iii) Quorum. Members whose aggregate Membership Interest exceeds 50
percent will constitute a quorum at a meeting of Members. No action
may be taken in the absence of a quorum.
(iv)Required Vote. Except with respect to matters for which a greater
minimum vote is required by the Act or this Agreement, the vote of
Members present whose aggregate Membership Interest exceeds 50
percent of the aggregate Membership Interest of all Members present
will constitute the act of the Members at a meeting of Members.
(v) Written Consent. The Members may act without a meeting by written
consent describing the action and signed by Members whose
aggregate Membership Interest is at least equal to the minimum that
would be necessary to take the action at a meeting at which all
Members were present.
(vi)Action through Managers. The Company may act through one or
more Managers, whose rights, obligations, and duties are described in
Article 6.
3.4 Fiduciary Duties
A. Liability for Wrongful Acts. A Member will be liable to and indemnify the
Company for all costs, expenses, or damages attributable to an act or omission that
constitutes a breach of this Agreement, negligence, misconduct, or a violation of law.
B. Limitation on Individual Authority. A Member who is not also a Manager has no
authority to bind the Company. A Member whose unauthorized act obligates the Company
to a third party will indemnify the Company for any costs or damages the Company incurs
as a result of the unauthorized act.
C. Justifiable Reliance. A Member may rely on the Company's records maintained in
good faith and on information, opinions, reports, or statements received from any Person
pertaining to matters the Member reasonably believes to be within the Person's expertise
or competence.
3.5 Indemnification of Members
The Company will indemnify each Member for all expenses, losses, liabilities, and
damages the Member actually and reasonably incurs in connection with the defense or
settlement of any action arising out of or relating to the conduct of the Company's activities,
except an action with respect to which the Member is adjudged to be liable for breach of a
fiduciary duty owed to the Company or the other Members under the Act or this Agreement.
3.6 Compensation
The Company may compensate a Member for services rendered to or on behalf of the
Company. A Member's compensation may be determined with or without regard to Profit or
other indicators of the results of operations. Compensation paid to Members will be treated
as an expense for purposes of determining Profit. The Company will reimburse each
Member for reasonable expenses properly incurred on the Company's behalf.
3.7 Resignation of a Member
A Member at any time may resign from the Company by giving written notice to the
Company and the other Members at least 60 days prior to the effective date of the
resignation.
3.8 Transfer of Membership Interest
A. Restrictions on Transfer. A Member may Transfer a Membership Interest only in
compliance with this Article 3. A Member may transfer his, her, or its Membership Interest
only with the prior written consent of all of the Members and Managers. An attempted
Transfer of all or a portion of a Membership Interest that is not in compliance with this
Article 3 is null and void.
B. Transferor's Membership Status. If a Member Transfers less than all of the
Membership Interest, the Member's rights with respect to the transferred portion, including
the right to vote or otherwise participate in the Company's governance and the right to
receive Distributions, will terminate as of the effective date of the Transfer. However, the
Member will remain liable for any obligation with respect to the transferred portion that
existed prior to the effective date of the Transfer, including any costs or damages resulting
from the Member's breach of this Agreement. If the Member Transfers all of the
Membership Interest, the Transfer will constitute an event of Dissociation for purposes of
Article 3.
C. Transferee's Status.
(i) Admission as a Member. A Member who Transfers a Membership
Interest has no power to confer on the Transferee the status of a
Member. A Transferee may be admitted as a Member only in
accordance with the provisions of Article 3. A Transferee who is not
admitted as a Member has only the rights described in this Article 3.
(ii) Rights of Non-Member Transferee. A Transferee who is not admitted
as a Member in accordance with the provisions of Article 3, (i) has no
right to vote or otherwise participate in the Company's governance, (ii)
is not entitled to receive information concerning the Company's affairs
or inspect the Company's books and records, (iii) with respect to the
transferred Membership Interest, is entitled to receive the Distributions
to which the Member would have been entitled had the Transfer not
occurred, but only at such times and in such amounts as the Company
in its sole discretion may determine, and (iv) is subject to the
restrictions imposed by this Article 3 to the same extent as a Member.
3.9 Dissociation
A. Events of Dissociation. A Member's Dissociation from the Company occurs
upon: (1) the Member's resignation or expulsion from the Company; (2) the Member's
Transfer of the Member's entire Membership Interest; (3) the Member's Bankruptcy; (4) as
to a Member who is a natural person, the Member's death or adjudication of incompetency;
(5) as to a Member who holds a Membership Interest as a fiduciary, distribution of the
entire Membership Interest to the beneficial owners; or (6) as to a Member that is an Entity,
the Entity's dissolution.
B. Rights of Member Following Dissociation.
(i) Upon Company's Continuance. If a Member's Dissociation does not
result in the Company's dissolution under Article 7, as of the effective
date of the Member's Dissociation: (i) the Member's right to participate
in the Company's governance, receive information concerning the
Company's affairs and inspect the Company's books and records will
terminate; and (ii) unless the Dissociation resulted from the Transfer of
the Member's entire Membership Interest, the Member will be entitled
to receive the Distributions to which the Member would have been
entitled had the Dissociation not occurred, but only at such times and
in such amounts as the Company in its sole discretion may determine.
Except as provided in this Article 3, the Member will have no right to
receive Distributions or otherwise participate in the Company's
financial affairs. The Member will, however, remain liable for any
obligation to the Company that existed prior to the effective date of the
Dissociation, including any costs or damages resulting from the
Member's breach of this Agreement.
3.10 Redemption of Dissociating Member's Interest
A. Optional Redemption. If a Member's Dissociation is a result of Bankruptcy,
dissolution, or Transfer of Membership Interest, and if the Dissociation does not cause the
Company's dissolution under Article 6, at any time within 180 days after the effective date
of the Dissociation, the Company may redeem not less than all of the Member's
Membership Interest on the terms set forth in this Article 3.
The Company must exercise its right to redeem the Membership Interest by giving
written notice to the Member or the Member's successor in interest (the "seller") within the
180-day exercise period. The notice must specify the redemption price and payment terms
and indicate a closing date within 60 days after the date the notice is delivered.
B. Redemption Price. The redemption price of the Membership Interest is an amount
equal to the Company's value as of the effective date of the Dissociation, multiplied by the
seller's Membership Interest.
For the purpose of determining the redemption price, the Company's value is the value
determined by unanimous agreement of the Members at five-year intervals.
If the Members fail to redetermine the Company's value for any year, the Company's
value will be an amount equal to the lesser of the last value determined by unanimous
agreement of the Members, as set forth on the Schedule of Values attached to this
Agreement or the Member's Capital Account.
C. Payment Terms. The Company will pay the redemption price at the closing in the
form of its promissory note in the principal amount of the purchase price payable in 15
equal annual installments, with interest compounded annually at an annual rate equal to
the greater of six percent (6 %) or the minimum rate necessary to avoid the imputation of
interest between the parties under Internal Revenue Code sections 483, 1274, and 7872,
as of the date the Company gives the seller notice of the redemption.
ARTICLE IV. FINANCE
4.1 Contributions
A. Initial Members. The initial Members will make the Contributions described below:
Adam C Abram will contribute cash in the amount of
John Royal Jr will contribute cash in the amount of
B. Additional Members. A Person admitted as a Member in connection with the
acquisition of a Membership Interest directly from the Company after the Effective Date will
make the Contributions specified in the agreement pursuant to which the Person is
admitted as a Member.
C. Additional Contributions.
(i) Permitted. The Company may authorize additional Contributions at
such times and on such terms and conditions as it determines to be in
its best interest.
D. Required.
(i) If at any time the Company determines that its financial resources are
insufficient to meet the reasonable needs of its business, it may require
the Members to make additional Contributions sufficient to meet those
needs. The Members will make the additional Contributions in
proportion to their Membership Interests.
(ii) The Company must give each Member written notice of the obligation
to contribute additional capital. The notice must explain the need for
additional capital, specify the amount the Member is required to
contribute and establish a due date that is not less than 30 days after
the date of the notice. The Member will make the Contribution in
immediately available funds on or before the due date specified in the
notice.
E. Default Remedies. If a Member does not contribute the Member's share of a
required additional Contribution on or before the due date, the Company may (i) take such
action as it considers necessary or appropriate to enforce the Member's obligation or (ii)
accept Contributions from the other Members in satisfaction of the defaulting Member's
obligation, in proportion to their Membership Interests. If the Company accepts
Contributions from other Members, the Membership Interest of each Member will be
adjusted to correspond to the ratio that the Capital Investment of the Member bears to
aggregate Capital Investment of all Members, adjusted to reflect the Contributions made by
other Members in satisfaction of the defaulting Member's obligation.
F. Creditors' Rights. A Member's obligation to make additional contributions extends
only to the Company and may not be enforced by the Company's creditors without the
Member's written consent.
G. Contributions Not Interest Bearing. A Member is not entitled to interest or other
compensation with respect to any cash or property the Member contributes to the
Company.
H. No Return of Contribution. A Member is not entitled to the return of any
Contribution prior to the Company's dissolution and winding up.
4.2 Allocation of Profits and Losses
A. Profits. After giving effect to any special allocation required by Article 4, the
Company's Profit for a Taxable Year, including the Taxable Year in which the Company is
dissolved, will be allocated among the Members in the following order of priority:
(i) first, to the extent of any excess of cumulative Losses for all prior
Taxable Years over cumulative Profits for all prior Taxable Years, in
proportion to the allocation of such excess under Article 4;
(ii) any balance, in proportion to the Members' Membership Interests.
B. Losses. After giving effect to any special allocation required by Article 4, the
Company's Loss for a Taxable Year, including the Taxable Year in which the Company is
dissolved, will be allocated among the Members in the following order of priority:
(i) first, in proportion to the Members' Membership Interests to the extent
of any excess of cumulative Profits for all prior Taxable Years over
cumulative Losses for all prior Taxable Years;
(ii) second, in proportion to the Members' respective Capital Investments;
and
(iii) any balance, in proportion to the Members' Membership Interests.
C. Special Allocations.
(i) If a Member unexpectedly receives an adjustment, allocation, or
distribution described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) of
the Regulations that creates or increases a deficit in the Member's
Capital Account as of the end of a Taxable Year, a pro rata portion of
each item of the Company's income, including gross income and gain
for the Taxable Year and, if necessary, for subsequent years will be
allocated to the Member in an amount and manner sufficient to
eliminate the deficit in the Member's Capital Account as quickly as
possible.
(ii) If a Member would have a deficit in his or her Capital Account at the
end of a Taxable Year that exceeds the sum of (i) the amount the
Member is obligated to restore to the Company under Section 1.704-
1(b)(2)(ii)(c) of the Regulations and (ii) the Member's share of
Minimum Gain, a pro rata portion of each item of the Company's
income, including gross income, and gain for the year will be allocated
to the Member in an amount and manner sufficient to eliminate the
deficit in the Member's Capital Account as quickly as possible.
(iii) If there is a net decrease in the Company's Minimum Gain during a
Taxable Year, the items of the Company's income, including gross
income and gain for the Taxable Year and, if necessary, for
subsequent years will be allocated to the Members in proportion to
their shares of the net decrease in Minimum Gain. If the allocation
made by this paragraph would cause a distortion in the economic
arrangement among the Members and it is expected that the Company
will not have sufficient income to correct that distortion, the Company
may seek to have the Internal Revenue Service waive the requirement
for the allocation in accordance with Section 1.704-2(f)(4) of the
Regulations.
(iv)Items of the Company's loss, deductions, and expenditures described
in Code Section 705(a)(2)(B) that are attributable to the Company's
nonrecourse debt and are characterized as Member nonrecourse
deductions under Section 1.704-2(i) of the Regulations will be
allocated to the Members' Capital Accounts in accordance with Section
1.704-2(i) of the Regulations.
(v) Items of income, gain, loss, and deduction with respect to property
contributed to the Company's capital will be allocated between the
Members so as to take into account any variation between book value
and basis, to the extent and in the manner prescribed by section
704(c) of the Code and related Regulations.
(vi)If the special allocations required by the foregoing provisions of this
Article IV (the "special allocations") result in Capital Account balances
that are different from the Capital Account balances the Members
would have had if the special allocations were not required, the
Company will allocate other items of income, gain, loss, and deduction
in any manner it considers appropriate to offset the effects of the
special allocations on the Members' Capital Account balances. Any
offsetting allocation required by this paragraph is subject to and must
be consistent with the special allocations.
D. Effect of Transfers During Year. The Company will prorate items attributable to a
Membership Interest that is the subject of a Transfer during a Taxable Year between the
transferor and the Transferee based on the portion of the Taxable Year that elapsed prior
to the Transfer.
4.3 Tax Allocations
For federal income tax purposes, unless the Code otherwise requires, each item of the
Company's income, gain, loss, or deduction will be allocated to the Members in proportion
to their allocations of the Company's Profit or Loss.
4.4 Distributions
A. Available Funds. The Company will distribute its Available Funds to the Members
in such amounts and at such times as are determined solely by the Managers.
4.5 Capital Accounts
A. General Maintenance. The Company will establish and maintain a Capital
Account for each Member. A Member's Capital Account will be:
(i) increased by (i) the amount of any money the Member contributes to
the Company's capital; (ii) the fair market value of any property the
Member contributes to the Company's capital, net of any liabilities the
Company assumes or to which the property is subject; and (iii) the
Member's share of Profits and any separately stated items of income
or gain; and
(ii) decreased by: (i) the amount of any money the Company distributes to
the Member; (ii) the fair market value of any property the Company
distributes to the Member, net of any liabilities the Member assumes or
to which the property is subject; and (iii) the Member's share of Losses
and any separately stated items of deduction or loss.
B. Adjustments for Distributions in Kind. If at any time the Company distributes
property in kind, it will adjust the Members' Capital Accounts to account for their shares of
any Profit or Loss the Company would have realized had it sold the property at fair market
value and distributed the sale proceeds.
C. Adjustments for Acquisitions and Redemptions. If at any time a Person
acquires a Membership Interest from the Company or the Company redeems a
Membership Interest, the Company may adjust the Members' Capital Accounts to reflect
any Profit or Loss the Company would have realized had it sold all of its assets at fair
market value on the date of the acquisition or redemption.
D. Transfer of Capital Account. A Transferee of a Membership Interest succeeds to
the portion of the transferor's Capital Account that corresponds to the portion of the
Membership Interest that is the subject of the Transfer.
E. Compliance with Code. The requirements of this Article IV are intended and will
be construed to ensure that the allocations of the_Company'.s_income,__gain,_losses,____
_deductions, and credits have substantial economic effect under the Regulations
promulgated under Section 704(b) of the Code.
ARTICLE V. RECORDS AND ACCOUNTING
5.1 Maintenance of Records
A. Required Records. The Company will maintain at its registered office in
Pennsylvania:
(i) a current list, in alphabetical order, of the full name and last known
business, residence, or mailing address of each Member;
(ii) copies of the Certificate and Certificate of Organization, including
articles and certificates of amendment;
(iii) copies of the Company's federal, state, and local income tax returns
and reports, if any, for the three most recent Taxable Years;
(iv) a copy of this Agreement, including any amendments;
(v) a schedule showing the amount of cash, if any, and a description and
statement of the agreed value of the other property or services, if
any, contributed or required to be contributed by each Member;
(vi) a description of the times or events at or upon which any Member is
required to make additional Contributions;
(vii) a description of any right of a Member to receive, or of the Company
to make, Distributions to the Member that include a return of all or
any part of the Member's contribution; and
(viii) a description of the events upon which the Company will be dissolved
and its affairs wound up.
B. Member Access. A Member and the Member's authorized representative have
reasonable access to and may inspect and copy all records and other materials pertaining
to the Company or its activities. The exercise of such rights will be at the requesting
Member's expense.
C. Confidentiality. No Member will disclose any information relating to the Company
or its activities to any unauthorized person or use any such information for his or her or any
other Person's personal gain.
5.2 Financial Accounting
A. Accounting Method. The Company will account for its financial transactions using
a method of accounting determined by the Members in compliance with Sections 446 and
448 of the Code.
B. Taxable Year. The Company's Taxable Year is the Company's annual accounting
period, as determined by the Members in compliance with Sections 441, 444, and 706 of
the Code.
5.3 Reports
A. Members. As soon as practicable after the close of each Taxable Year, the
Company will prepare and send to the Members such reports and information as are
reasonably necessary to (1) inform the Members of the results of the Company's
operations for the Taxable Year and (2) enable the Members to completely and accurately
reflect their distributive shares of the Company's income, gains, deductions, losses, and
credits in their federal, state, and local income tax returns for the appropriate year.
B. Periodic Reports. The Company will complete and file any periodic reports
required by the Act or the law of any other jurisdiction in which the Company is qualified to
do business.
5.4 Tax Compliance
A. Withholding. If the Company is required by law or regulation to withhold and pay
over to a governmental agency any part or all of a Distribution or allocation of Profit to a
Member:
(i) the amount withheld will be considered a Distribution to the Member;
and
(ii) if the withholding requirement pertains to a Distribution in kind or an
allocation of Profit, the Company will pay the amount required to be
withheld to the governmental agency and promptly take such action as
it considers necessary or appropriate to recover a like amount from the
Member, including offset against any Distributions to which the
Member would otherwise be entitled.
B. Tax Matters Partner. The Company will designate a Member to act as the "Tax
Matters Partner" pursuant to Section 6231(a)(7) of the Code. The initial Tax Matters Partner
shall be Adam C Abram. The Company may remove any Tax Matters Partner, with or
without cause, and designate a successor to any Tax Matters Partner who for any reason
ceases to act. The Tax Matters Partner will inform the Members of all administrative and
judicial proceedings pertaining to the determination of the Company's tax items and will
provide the Members with copies of all notices received from the Internal Revenue Service
regarding the commencement of a Company-level audit or a proposed adjustment of any of
the Company's tax items. The Tax Matters Partner may extend the statute of limitations for
assessment of tax deficiencies against the Members attributable to any adjustment of any
tax item. The Company will reimburse the Tax Matters Partner for reasonable expenses
properly incurred while acting within the scope of the Tax Matters Partner's authority.
ARTICLE VI. MANAGEMENT
6.1 Representative Management
The Company will be managed by a Manager or Managers. The name and business
address of the Company's initial Manager(s) are:
Adam C Abram 115 Bryce Road, Camp Hill, PA 17011
John Royal Jr, 1109 Oak Lane, New Cumberland, Pennsylvania, 17070.
6.2 Time Devoted to Business
Managers will devote only the amount of time to the Company's activities as is
reasonably necessary to discharge the Managers' responsibilities.
6.3 Powers and Authority
A. General Scope. Except for matters on which the Members' approval is required by
the Act or this Agreement, the Managers have full power, authority, and discretion to
manage and direct the Company's business, affairs, and properties, including, without
limitation, the specific powers referred to in this Article 6.3.
B. Specific Powers.
(i) The Managers are authorized on the Company's behalf to make all
decisions as to (i) the development, sale, lease, or other disposition of
the Company's assets; (ii) the purchase or other acquisition of other
assets of all kinds; (iii) the management of all or any part of the
Company's assets and business; (iv) the borrowing of money and the
granting of security interests in the Company's assets (including loans
from Members); (v) the prepayment, refinancing, or extension of any
mortgage affecting the Company's assets; (vi) the compromise or
release of any of the Company's claims or debts; (vii) the employment
of Persons for the operation and management of the Company's
business; and (viii) all elections available to the Company under any
federal or state tax law or regulation.
(ii) Each Manager on the Company's behalf may execute and deliver (i) all
contracts, conveyances, assignments, leases, subleases, franchise
agreements, licensing agreements, management contracts, and
maintenance contracts covering or affecting the Company's assets; (ii)
all checks, drafts, and other orders for the payment of the Company's
funds; (iii) all promissory notes, mortgages, deeds of trust, security
agreements, and other similar documents; (iv) all articles, certificates,
and reports pertaining to the Company's organization, qualification,
and dissolution; (v) all tax returns and reports; and (vi) all other
instruments of any kind or character relating to the Company's affairs.
6.4 Manner of Acting
A. General. A Manager may act with respect to any matter within the scope of his or
her authority if there is one Manager or if there is more than one Manager at a meeting of
Managers or pursuant to formal or informal procedures adopted at a meeting of Managers.
Procedures that may be adopted at a meeting of Managers include, without limitation, the
establishment of dates and times for regular meetings, procedures pursuant to which the
Managers may approve a matter without a meeting and the delegation of duties and
responsibilities with respect to which the delegate may act without approval or ratification
by the other Managers.
B. Meetings. If there is more than one Manager:
(i) Right to Call. Any Manager may call a meeting of Managers by giving
written notice to all Managers not less than ten (10) nor more than sixty
(60) days prior to the date of the meeting. The notice must specify the
date of the meeting and the nature of any business to be transacted. A
Manager may waive notice of a meeting of Managers orally, in writing
or by attendance at the meeting.
(ii) Proxy Voting. A Manager may act at a meeting of Managers through
another Manager authorized by signed proxy.
C. Written Consent. The Managers may act without a meeting by written consent
describing the action and signed by Managers whose voting power is at least equal to the
minimum that would be necessary to take the action at a meeting at which all Managers
were present.
D. Required Approval. The Managers' majority approval is required for any matter
arising within the scope of their authority, subject to any procedures adopted at a meeting
of Managers pursuant to Section 6.4(a).
E. Participation by Non-Member Managers. The fact that a Manager is not also a
Member in no way limits the Manager's right to vote on any matter properly within the
scope of the Managers' authority under this Agreement.
6.5 Agency Power and Authority
A Manager apparently acting for the Company in the usual course of its business has
the power to bind the Company and no person has an obligation to inquire into the
Manager's actual authority to act on the Company's behalf. However, if a Manager acts
outside the scope of the Manager's actual authority, the Manager will indemnify the
Company for any costs or damages it incurs as a result of the unauthorized act.
6.6 Fiduciary Duties
A. Standard of Care.
(i) Liability for Wrongful Acts. A Manager is liable to and will indemnify
the Company for all costs, expenses, or damages attributable to an act
or omission that constitutes a breach of this Agreement, negligence,
misconduct, or a violation of law.
(ii) Justifiable Reliance. A Manager may rely on the Company's records
maintained in good faith and on information, opinions, reports, or
statements received from any Person pertaining to matters the
Manager reasonably believes to be within the Person's expertise or
competence.
B. Competing Activities. A Manager may participate in any business or activity
without accounting to the Company or the Members. A Manager may not, however, accept
a business opportunity for the Manager's own account that the Manager believes or has
reason to believe the Company would accept if brought to its attention. A Manager must
disclose to the Company any business opportunity of which the Manager becomes aware.
If the Company declines to accept the opportunity, the Manager may pursue it for the
Manager's own account. If the Manager fails to disclose the opportunity, the Manager will
account to the Company for any income the Manager derives from the opportunity and will
indemnify the Company for any loss the Company incurs as a result of the failure to
disclose.
C. Self-Dealing. A Manager may enter into a business transaction with the Company
if the terms of the transaction are no less favorable to the Company than those of a similar
transaction with an independent third party. Approval or ratification by Members having no
interest in the transaction constitutes conclusive evidence that the terms satisfy the
foregoing condition.
6.7 Indemnification of Managers
The Company will indemnify each Manager for all expenses, losses, liabilities, and
damages the Manager actually and reasonably incurs in connection with the defense or
settlement of any action arising out of or relating to the conduct of the Company's activities,
except an action with respect to which the Manager is adjudged to be liable for breach of a
fiduciary duty owed to the Company or the Members under the Act or this Agreement.
6.8 Compensation
The Company may, with the approval of the Members, compensate any Manager for
services to or on behalf of the Company. The Company will reimburse each Manager for
reasonable expenses properly incurred on the Company's behalf.
6.9 Tenure
A. Term. A Manager will serve until the earlier of: (1) the Manager's resignation; (2)
the Manager's Bankruptcy; (3) as to a Manager who is a natural person, the Manager's
death or adjudication of incompetency; and (4) as to a Manager that is an Entity, the
Manager's dissolution.
B. Resignation. A Manager at any time may resign by written notice delivered to the
Members at least thirty (30) days prior to the effective date of the resignation.
C. Vacancy. If a Manager for any reason ceases to act, the Members will promptly
elect a successor, to serve until a successor is elected and qualified.
ARTICLE VII. DISSOLUTION
7.1 Events of Dissolution
A. Enumeration. The Company will dissolve upon the first to occur of:
(i) the unanimous vote of all of the Members and Managers to dissolve
the Company;
(ii) any event that makes the Company ineligible to conduct its activities
as a limited liability company under the Act;
(iii) any event or circumstance that makes it unlawful or impossible for the
Company to carry on its business; or
B. Exclusivity of Events. Unless specifically referred to in this Article 7, no event,
including an event of dissolution prescribed by the Act, will result in the Company's
dissolution.
7.2 Effect of Dissolution
A. Appointment of Liquidator. Upon the Company's dissolution, the Members will
appoint a liquidator, who may but need not be a Member. The liquidator will wind up and
liquidate the Company in an orderly, prudent, and expeditious manner in accordance with
the following provisions of this Article 7.
B. Final Accounting. The liquidator will make proper accountings (1) to the end of
the month in which the event of dissolution occurred and (2) to the date on which the
Company is finally and completely liquidated.
C. Duties and Authority of Liquidator. The liquidator will make adequate provision
for the discharge of all of the Company's debts, obligations, and liabilities. The liquidator
may sell, encumber, or retain for distribution in kind any of the Company's assets. Any gain
or loss recognized on the sale of assets will be allocated to the Members' Capital Accounts
in accordance with the provisions of Article 4. With respect to any asset the liquidator
determines to retain for distribution in kind, the liquidator will allocate to the Members'
Capital Accounts the amount of gain or loss that would have been recognized had the
asset been sold at its fair market value.
D. Final Distribution. The liquidator will distribute any assets remaining after the
discharge or accommodation of the Company's debts, obligations, and liabilities to the
Members in proportion to their Capital Accounts. The liquidator will distribute any assets
distributable in kind to the Members in undivided interests as tenants in common. A
Member whose Capital Account is negative will have no liability to the Company, the
Company's creditors or any other Member with respect to the negative balance.
E. Required Filings. The liquidator will file with the Secretary of State such
statements, certificates, and other instruments, and take such other actions, as are
reasonably necessary or appropriate to effectuate and confirm the cessation of the
Company's existence.
ARTICLE VIII. GENERAL PROVISIONS
8.1 Amendments
A. Required Amendments. The Company and the Members will execute and file any
amendment to the Certificate, as required by the Act. If any such amendment results in
inconsistencies between the Certificate and this Agreement, this Agreement will be
considered to have been amended in the specifics necessary to eliminate the
inconsistencies.
B. Other Amendments. Any Member may propose for consideration and action an
amendment to this Agreement or to the Certificate. A proposed amendment will become
effective at such time as it is approved by all Members and Managers.
8.2 Nominee
Title to the Company's assets may be held in the name of the Company or any nominee
(including any Member so acting), as the Company determines. The Company's agreement
with any nominee may contain provisions indemnifying the nominee for costs or damages
incurred as a result of the nominee's service to the Company.
8.3 Investment Representation
Each Member represents to the Company and the other Members that (a) the Member
is acquiring a Membership Interest in the Company for investment and for the Member's
own account and not with a view to its sale or distribution and (b) neither the Company nor
any other Member has made any guaranty or representation upon which the Member has
relied concerning the possibility or probability of profit or loss resulting from the Member's
investment in the Company.
8.4 Resolution of Disputes
A. Mediation. The parties will endeavor in good faith to resolve all disputes arising
under or related to this Agreement by mediation according to the then prevailing rules and
procedures of the American Arbitration Association.
B. Arbitration. If the parties fail in their attempt to resolve a dispute by mediation,
they will submit the dispute to arbitration according to the then prevailing rules and
procedures of the American Arbitration Association. Pennsylvania law will govern the rights
and obligations of the parties with respect to the matters in controversy. The arbitrator will
allocate all costs and fees attributable to the arbitration between the parties equally. The
arbitrator's award will be final and binding and judgment may be entered in any court of
competent jurisdiction.
8.5 Notices
Notices contemplated by this Agreement may be sent by any commercially reasonable
means, including hand delivery, first class mail, fax, e-mail, or private courier. The notice
must be prepaid and addressed as set forth in the Company's records. The notice will be
effective on the date of receipt or, in the case of notice sent by first class mail, the fifth day
after mailing.
8.6 Resolution of Inconsistencies
If there are inconsistencies between this Agreement and the Certificate, the Certificate
will control. If there are inconsistencies between this Agreement and the Act, this
Agreement will control, except to the extent the inconsistencies relate to provisions of the
Act that the Members cannot alter by agreement. Without limiting the generality of the
foregoing, unless the language or context clearly indicates a different intent, the provisions
of this Agreement pertaining to the Company's governance and financial affairs and the
rights of the Members upon Dissociation and dissolution will supersede the provisions of
the Act relating to the same matters.
8.7 Provisions Applicable to Transferees
As the context requires and subject to the restrictions and limitations imposed by Article
3, the provisions of this Agreement pertaining to the rights and obligations of a Member
also govern the rights and obligations of the Member's Transferee.
8.8 Additional Instruments
Each Member will execute and deliver any document or statement necessary to give
effect to the terms of this Agreement or to comply with any law, rule, or regulation
governing the Company's formation and activities.
8.9 Headings
Headings and paragraph titles are for convenience only and have no significance in the
interpretation of this Agreement.
8.10 Computation of Time
In computing any period of time under this Agreement, the day of the act or event from
which the specified period begins to run is not to be included. The last day of the period is
included, unless it is a Saturday, Sunday, or legal holiday, in which case the period will run
until the end of the next day that is not a Saturday, Sunday, or legal holiday.
8.11 Entire Agreement
This Agreement and the Certificate comprise the entire agreement among the parties
with respect to the Company. This Agreement and the Certificate supersede any prior
agreements or understandings with respect to the Company. No representation, statement,
or condition not contained in this Agreement or the Certificate has any force or effect.
8.12 Waiver
No right under this Agreement may be waived, except by an instrument in writing signed
by the party sought to be charged with the waiver.
8.13 General Construction Principles
Words in any gender are deemed to include the other genders. The singular is deemed
to include the plural and vice versa. The headings and bold paragraph titles are for
guidance only and have no significance in the interpretation of this Agreement.
8.14 Binding Effect
Subject to the provisions of this Agreement relating to the transferability of Membership
Interests and the rights of Transferees, this Agreement is binding on and will inure to the
benefit of the Company, the Members and their respective distributees, successors, and
assigns.
8.15 Governing Law
Pennsylvania law governs the construction and application of the terms of this
Agreement.
8.16 Counterparts
This Agreement may be executed in counterparts, each of which will be considered an
original.
[remainder of this page intentionally left blank]
Signed on the respective dates set forth below, to be effective as of the Effective Date.
COMPANY:
John ams Investments, LLC `
November 12009
DATE Adam C Abram, Manager
November 12009
DATE Jjy Royal J Ma' n er
INITIAL MEMBERS:
November 12009 a 0 g"'Z'��
DATE Adam C Abram
November 12009
DATE oh Royal Jr
COMMONWEALTH OF PENNSYLVANIA )
SS:
COUNTY OF Cumberland
On this, the Ist-.day of November, 2009, before me, a Notary Public, personally
appeared Adam C Abram and John Royal Jr whose names are subscribed to the within
instrument, and acknowledged that. each executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal._
/ :11i
otary P lic
M co ission expires:
y p
b5Y G0''
ADAM C. ABRAM and IN THE COURT OF COMMON
SUSAN A. ABRAM, his wife PLEAS OF CUMBERLAND
Plaintiffs COUNTY, PENNSYLVANIA
vs. CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC,
Defendant NO. 14-2182
and
JOHN ROYAL,
Intervener
INTERVENER JOHN ROYAL'S ANSWER WITH NEW MATTER,
COUNTERCLAIM AND NEW MATTER CROSS-CLAIM
PURSUANT TO PA. R.C.P. 1031.1
AND NOW comes Intervener, John Royal ("Intervener"), by his attorneys, Saidis,
Sullivan & Rogers, and in response to Plaintiffs' Complaint files the following Answer with
New Matter, Counterclaim and New Matter Cross-Claim Pursuant to Pa. R.C.P. 1031.1:
1. Admitted on information and belief.
2. Admitted.
3. Denied as stated. In addition to the business of acquisition, development,
improvement and leasing of real estate, John Adams Investments, LLC (the "Company") is also
engaged in the business of selling real property when appropriate.
4. Admitted in part and denied in part. Intervener denies that the Company ever
requested that Susan A. Abram advance and loan substantial sums of money to the Company to
finance its business operations. It is admitted only that at various times Adam C. Abram, who is
a Member and Manager of the Company on an equal basis with Intervener, has conveyed certain
sums of money to or on behalf of the Company for business operations. Whether these
conveyances constitute loans to the Company, or capital contributions to the Company, or
whether some conveyances represent loans and some represent capital contributions, is unknown
and is a matter in dispute. After reasonable investigation, Intervener is without information or
knowledge sufficient to form a belief whether all of the money allegedly advanced by Adam
Abram was used for the Company's business operations so that this averment is denied.
5. Denied as stated. Intervener was advised by Adam Abram or Susan Abram on
several occasions that Adam Abram conveyed money to or on behalf of the Company for
business purposes. On one of those occasions, a 4% interest rate was discussed. However, the
due date for repayment was not specifically agreed upon, but rather was to be based upon a time
when the Company had sufficient income to repay the money. Intervener was not advised of the
terms of any alleged loans with respect to other alleged conveyances of funds. Intervener's
response to paragraph 4 is hereby incorporated by reference.
6. Denied. While Intervener does not know the details of each of the conveyances
of money which Adam Abram characterizes in the Complaint as a loan and asserts a failure of
the Company to repay, Intervener believes and therefore avers that the Company as borrower
participated in several bank financings over the past several years, one significant transaction
being a major cash-out refinancing of approximately $370,000.00 in July, 2011. Intervener
believes and therefore avers that a significant portion of the proceeds of these borrowing
transactions was intended to pay back Adam Abram for money he had conveyed, and that the
Company did, in fact, pay money back to Adam Abram. Intervener has requested of Adam
Abram that he provide details and documents relating to the Company's business operations,
2
including loan documents, but Adam Abram has refused to provide such information and
documents to Intervener (except for providing limited information on QuickBooks that provided
little meaningful information or insight into the Company's business operations).
7. Denied. After reasonable investigation, Intervener is without information or
knowledge sufficient to form a belief regarding the averments of this paragraph so that they are
denied and proof demanded. In further response, nevertheless, Intervener believes and therefore
avers that the Company has repaid significant sums to Adam Abram.
8. Denied. The averments of this paragraph constitute conclusions of law to which
no responsive pleading is required. In further response, nevertheless, Intervener's responses to
paragraphs 5 —7 are hereby incorporated by reference.
NEW MATTER
9. Intervener avers on information and belief that at least some of the funds
allegedly conveyed to the Company by Adam Abram for which repayment is claimed in his
Complaint have, in fact, been repaid to him.
10. Intervener avers on information and belief that to the extent funds conveyed by
Adam Abram to the Company constitute loans, the conditions for repayment based upon the
financial condition of the Company has not yet occurred and repayment is not yet due.
11. Some of the claims for repayment of funds allegedly conveyed by Plaintiffs may
be barred by the applicable statute of limitations or laches.
WHEREFORE, Intervener, John Royal, demands that Plaintiffs' Complaint be dismissed
with prejudice and that he be awarded costs of suit and such other relief as may be appropriate.
3
COUNTERCLAIM AGAINST ADAM ABRAM AND NEW MATTER CROSS-CLAIM
PURSUANT TO PA. R.C.P. 1031.1 DIRECTED TO JOHN ADAMS INVESTMENTS,
LLC
John Royal v. Adam Abram and John Adams Investments, LLC
12. Defendant, John Adams Investments, LLC, is a Pennsylvania limited liability
company owned solely by Plaintiff Adam Abram and Intervener John Royal.
13. Adam Abram and John Royal are equal, 50% owners of the Company.
14. Pursuant to the Company's Operating Agreement, a copy of which is attached
hereto as Exhibit "A,"the Company is managed by Managers rather than Members.
15. Adam Abram and John Royal are the Managers of the Company.
16. Pursuant to the terms of the Operating Agreement, if there is more than one
Manager (as is the case), majority approval of all Managers is required for any matter arising
within the scope of their authority with respect to management of the Company.
17. Over the past several months, significant differences and disputes have arisen
between Adam Abram and John Royal with respect to virtually all matters relating to the
management of the Company.
18. Despite John Royal's status as a 50% Member and Manager of the Company,
over the past several months Adam Abram has frozen John Royal out of any input or decision-
making with respect to management of the Company.
19. Despite John Royal's status as a 50% Member and Manager of the Company,
over the past several months Adam Abram has locked John Royal out of certain real estate
premises owned by the Company and has refused access to him.
4
20. Despite John Royal's status as a 50% Member and Manager of the Company,
Adam Abram has accused John Royal of"breaking into" Company real estate and, without basis,
has accused John Royal of taking Company property.
21. Despite John Royal's status as a 50% Member and Manager of the Company,
Adam Abram has engaged in a deliberate and persistent course of conduct to manage the
Company solely on his own to the exclusion of John Royal, has repeatedly refused to provide
requested information to John Royal, has refused to consult with John Royal regarding Company
management, and has refused to seek John Royal's consent as Manager of the Company for
management decisions.
22. Most recently, by letter dated April 7, 2014, Adam Abram, through his attorney,
threatened John Royal with a criminal complaint of harassment if John Royal even attempted to
communicate with Adam Abram about the Company unless the communication was conveyed
through the parties' respective attorneys. A copy of this letter is attached hereto as Exhibit "B."
23. Without prior notice to or discussion with John Royal, Adam Abram and his wife
brought the Complaint under this docket number against the Company seeking $716,068.65 in
alleged damages from the Company.
24. In addition to this pending lawsuit and again without prior notice or discussion
with John Royal, Adam Abram's wife, Susan Abram, has filed a separate lawsuit against the
Company (Docket 4 14-2181) seeking $82,915.00 in damages, alleging non-payment for
bookkeeping services she allegedly provided to the Company since 2009.
25. Adam Abram did not advise John Royal in advance that he and his wife intended
to file lawsuits against the Company.
5
26. The Company's registered place of business is 115 Bryce Road, Camp Hill, PA
17011, which is also the home address of Adam and Susan Abram.
27. Plaintiffs in both lawsuits presumably served their respective Complaints against
the Company at their own home address.
28. The Company did not advise John Royal, its 50% Manager and Member, that it
had been sued by Adam Abram and by Susan Abram; rather, Plaintiffs' attorney advised John
Royal's attorney of the Complaints by letter dated six (6) days after the Complaints had been
filed.
29. In addition to freezing John Royal out of any role in management of the
Company, Adam Abram has also refused to supply information to John Royal regarding various
aspects of Company management and financial status, despite numerous requests for information
by John Royal.
30. The disagreements between John Royal and Adam Abram, coupled with the terms
of the Operating Agreement requiring action by a majority of Managers, have resulted in a
deadlock of lawful management of the Company.
31. The relationship between Adam Abram and John Royal has deteriorated into one
of a complete lack of trust, lack of communication, and lack of accountability, making continued
operation of the Company untenable.
32. The only reasonable course of action for the Company under these circumstances
is for Court appointment of a liquidating trustee charged with the duties and power to
temporarily manage the affairs of the Company, initiate and oversee a complete accounting of
6
Company finances, and move forward as expeditiously as practical with the orderly dissolution
and liquidation of the Company.
COUNT I—ACCOUNTING
33. The averments of the foregoing paragraphs 12— 32 are hereby incorporated by
reference.
34. Adam Abram, who controls the Company's books and records and whose wife,
Susan Abram, has for an extended period of time handled cash flow and income/expense
management of the Company, has failed to provide requested full and timely information to John
Royal about Company management, the income and expenses of the Company, and other
information regarding the Company.
35. Adam Abram has failed to account to John Royal for the money he allegedly has
conveyed to the Company, how the money was spent, and generally, has failed to reveal to John
Royal the income and any expenses of the Company in any reasonably transparent and
meaningful manner.
WHEREFORE, Intervener, John Royal, respectfully requests that the Court order a full
and complete accounting of all Company financial affairs, and in particular, that the accounting
be undertaken under the direction and control of the liquidating trustee requested to be appointed
herein.
7
COUNT II - DISSOLUTION
36. The averments of the foregoing paragraphs 12—35 are hereby incorporated by
reference.
37. The Company has only two (2) Members and only two (2) Managers, Adam
Abram and John Royal.
38. Adam Abram and John Royal are equal 50% owners of the Company.
39. The actions of Adam Abram as described herein have made it impossible for the
Company to carry on its business in a lawful and appropriate manner.
40. The relationship between Adam Abram and John Royal is irretrievably broken,
and there is no reasonable likelihood that the two owners can cooperate in the future to operate
the Company.
41. In initiating the Complaint against the Company for damages, while
simultaneously refusing to act and leaving the Company powerless to defend itself, Adam Abram
has imminently threatened the best interests of the Company.
42. Adam Abram's unlawful attempt to unilaterally seize control of all management
of the Company, his refusal to provide information regarding Company management to John
Royal, including specific information regarding the alleged loans which are the subject of this
lawsuit, his actions in derogation of the Operating Agreement and in violation of his fiduciary
duties, and the initiation of his Complaint against the Company without notice to John Royal,
served at his own home address, under circumstances designed to assure that the Company could
not defend itself, requires that Adam Abram be removed from any role in management of the
8
Company and that the affairs of the Company be placed temporarily in the control of a court-
appointed liquidating trustee for purposes of dissolution and liquidation.
43. The only viable course of action for the Company is for it to be dissolved, the
affairs of the Company wound up, and the Company be liquidated by a liquidating trustee in an
orderly, prudent and expeditious manner, making provision for all proper debts, obligations and
liabilities of the Company, and thereafter distributing any remaining assets of the Company to
the Members as appropriate.
WHEREFORE, Intervener, John Royal, respectfully requests that the Court issue an
order that the Company be dissolved, and that under the direction and control of a liquidating
trustee as requested herein, that the liquidating trustee be directed to wind up the affairs of the
Company in an orderly, prudent and expeditious manner, make adequate provision for the
discharge of all the Company's debts, obligations and liabilities, and thereafter distribute any
remaining assets to the Members as appropriate.
SAIDIS, SULLIVAN & ROGERS
By
Daniel L. Sullivan, Esquire
Attorney I.D. PA 34548
John A. Feichtel
Attorney I.D. PA 77426
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Email: dsullivan(a�ssr-attorne sy com
Attorneys for John Royal
9
VERIFICATION
I, John Royal, hereby state that the facts set forth in the foregoing document are true and
correct to the best of my personal knowledge or information and belief. I am aware that false
statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn
falsification to authorities.
John Royal
CERTIFICATE OF SERVICE
AND NOW, , I, Daniel L. Sullivan, Esquire, hereby certify that I
did serve a true and correct copy of the foregoing document upon all counsel of record and
interested parties by depositing, or causing to be deposited, same in the U.S. mail, postage
prepaid, at Carlisle, Pennsylvania, addressed as follows:
Samuel L. Andes, Esq.
525 North 12`h Street
P. O. Box 168
Lemoyne, PA 17043-1213
John Adams Investments, LLC
115 Bryce Road
Camp Hill, PA 17011-1303
SAIDIS, SULLIVAN & ROGERS
By
Daniel L. Sullivan
Attorney I.D. #34548
John A. Feichtel
Attorney I.D. #77426
26 West High Street
Carlisle, PA 17013
Phone: (717) 243-6222
Email: dsullivannssr-attome sy com
Attorneys for John Royal
Exhibit "A"
LIMITED LIABILITY COMPANY AGREEMENT
OF
JOHN ADAMS INVESTMENTS, LLC
DATED THE 1ST DAY OF NOVEMBER, 2009
EIN: 27-1357996
TABLE OF CONTENTS
RECITALS ................................................................................................................
ARTICLE I. DEFINITIONS.........................................................................................
1.1 Scope....................................................................................
..........................
1.2 Defined Terms ................................................................................................
ARTICLE II. THE COMPANY .....................................................................................
2.1 Status..............................................................................................................
2.2 Name ..............................................................................................................
2.3 Term ...............................................................................................................
2.4 Purpose ..........................................................................................................
2.5 Principal Place of Business.............................................................................
2.6 Registered Agent and Registered Office.........................................................
ARTICLEIII. MEMBERS .............................................................................................
3.1 Identification....................................................................................................
3.2 Changes and Verification of Membership Interests.........................................
3.3 Manner of Acting.............................................................................................
3.4 Fiduciary Duties ..............................................................................................
3.5 Indemnification of Members............................................................................
3.6 Compensation................. .............................................................................
3.7 Resignation of a Member......
.. .................................................................
3.8 Transfer of Membership Interest.....................................................................
3.9 Dissociation.............................................................
3.10 Redemption of Dissociating Member's Interest...............................................
ARTICLEIV.FINANCE................................................................................................
4.1 Contributions...................................................................................................
4.2 Allocation of Profits and Losses......................................................................
4.3 Tax Allocations................................................................................................
4.4 Distributions....................................................................................................
4.5 Capital Accounts.............................................................................................
ARTICLE V. RECORDS AND ACCOUNTING............................................................
5.1 Maintenance of Records.................................................................................
5.2 Financial Accounting.......................................................................................
5.3 Reports ...........................................................................................................
5.4 Tax Compliance..............................................................................................
ARTICLE VI.MANAGEMENT......................................................................................
6.1 Representative Management..........................................................................
6.2 Time Devoted to Business..............................................................................
6.3 Powers and Authority............................................................................
6.4 Manner of Acting.............................................................................................
6.5 Agency Power and Authority.........................................................................
6.6 Fiduciary Duties ..............................................................................................
6.7 Indemnification of Managers ..........................................................................
6.8 Compensation ................................................................................................
6.9 Tenure............................................................................................................
ARTICLEVI1........................................................................................DISSOLUTION
7.1 Events of Dissolution......................................................................................
7.2 Effect of Dissolution........................................................................................
ARTICLE Vlll.......................................................................GENERAL PROVISIONS
8.1 Amendments ..................................................................................................
8.2 Nominee.........................................................................................................
8.3 Investment Representation ............................................................................
8.4 Resolution of Disputes ...................................................................................
8.5 Notices ...........................................................................................................
8.6 Resolution of Inconsistencies.........................................................................
8.7 Provisions Applicable to Transferees .............................................................
8.8 Additional Instruments....................................................................................
8.9 Headings........................................................................................................
8.10 Computation of Time......................................................................................
8.11 Entire Agreement ...........................................................................................
8.12 Waiver............................................................................................................
8.13 General Construction Principles.....................................................................
8.14 Binding Effect.................................................................................................
8.15 Governing Law...............................................................................................
8.16 Counterparts ..................................................................................................
LIMITED LIABILITY COMPANY AGREEMENT
OF
JOHN ADAMS INVESTMENTS, LLC
THIS AGREEMENT is among John Adams Investments, LLC, a Pennsylvania limited
liability company (the "Company"), and Adam C Abram and John Royal Jr (the "initial
Members").
RECITALS
The Company is a limited liability company formed under the Pennsylvania Limited
Liability Company Act. The other parties to this Agreement are the Company's initial
Members. The parties intend by this Agreement to define their rights and obligations with
respect to the Company's governance and financial affairs and to adopt regulations and
procedures for the conduct of the Company's activities. Accordingly, with the intention of
being legally bound, they agree as follows:
ARTICLE I. DEFINITIONS
1.1 Scope
For purposes of this Agreement, unless the language or context clearly indicates that a
different meaning is intended, capitalized terms have the meanings specified in this Article.
1.2 Defined Terms
A. "Act" means the Pennsylvania Limited Liability Company Act.
B. "Affiliate," with respect to a Person, means (1) a Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control
with the Person, (2) a Person who owns or controls at least ten percent of the outstanding
voting interests of the Person, (3) a Person who is an officer, director, manager, or general
partner of the Person, or (4) a Person who is an officer, director, manager, general partner,
trustee, or owns at least ten percent of the outstanding voting interests of a Person
described in clauses (1) through (3) of this sentence.
C. "Agreement" means this agreement, including any amendments.
D. "Available Funds" means the Company's gross cash receipts from operations, less
the sum of: (1) payments of principal, interest, charges, and fees pertaining to the
Company's indebtedness; (2) expenditures incurred incident to the usual conduct of the
Company's business; and (3) amounts reserved to meet the reasonable needs of the
Company's business as determined in the sole judgment of the Manager.
E. "Bankruptcy" means the filing of a petition seeking liquidation, reorganization,
arrangement, readjustment, protection, relief, or composition in any state or federal
bankruptcy, insolvency, reorganization, or receivership proceeding.
F. "Capital Account" of a Member means the capital account maintained for the
Member in accordance with Article IV.
G. "Capital Investment" of a Member means an amount equal to the excess of the
cumulative value of the Member's Contributions of cash and property over the cumulative
value of the Member's Distributions of cash and property. For purposes of this definition, (1)
Distributions out of Available Funds are not taken into account and (2) the value of any
Contribution or Distribution of property in kind is as recorded on the Company's books at
the time of the Contribution or Distribution.
H. "Certificate" means the Certificate of Formation filed with the Secretary of State to
organize the Company, including any amendments.
I. "Code" means the Internal Revenue Code of 1986, as amended.
J. "Company" means John Adams Investments, LLC and any successor limited
liability company.
K. "Contribution" means anything of value that a Member contributes to the Company
as a prerequisite for or in connection with membership, including any combination of cash,
property, services rendered, a promissory note, or any other obligation to contribute cash or
property or render services.
L. "Dissociation" means a complete termination of a Member's membership in the
Company in consequence of an event described in Article III.
M. "Distribution" means the Company's direct or indirect transfer of money or other
property with respect to a Membership Interest.
N. "Effective Date," with respect to this Agreement, means the date on which the
Company's existence as a limited liability company begins, as prescribed by the Act.
O. "Entity" means an association, relationship, or artificial person through or by means
of which an enterprise or activity may be lawfully conducted, including, without limitation, a
partnership, trust, limited liability company, corporation, joint venture, cooperative, or
association.
P. "Family," with respect to a Member, means individuals who are related to the
Member by blood, marriage, or adoption. For the purposes of this definition, an individual is
related to the Member by marriage if the person is related by blood or adoption to the
Member's current spouse. For purposes of the definition of "spouse," a Member shall be
deemed to be married to another individual so long as such Member is cohabiting with an
individual to whom the Member is legally married and the Member and the individual are
not legally separated and living apart.
Q. "Member" means an initial Member and any Person who subsequently is admitted
as an additional or substitute Member after the Effective Date.
R. "Membership Interest" means a Member's percentage interest in the Company,
consisting of the Member's right to share in the Company's Profit, receive Distributions,
participate in the Company's governance, approve the Company's acts and receive
information pertaining to the Company's affairs. The Membership Interests of the initial
Members are set forth in Article 3. Changes in Membership Interests after the Effective
Date, including those necessitated by the admission and Dissociation of Members, will be
reflected in the Company's records. The allocation of Membership Interests reflected in the
Company's records from time to time is presumed to be correct for all purposes of this
Agreement and the Act.
S. "Minimum Gain" means minimum gain as defined in Sections 1.704-2(b)(2) and
1.704-2(d) of the Regulations.
T. "Person" means a natural person or an Entity.
U. "Profit," as to a positive amount, and "Loss," as to a negative amount, mean, for a
Taxable Year, the Company's income or loss for the Taxable Year, as determined in
accordance with accounting principles appropriate to the Company's method of accounting
and consistently applied.
V. "Regulations" means proposed, temporary, or final regulations promulgated under
the Code by the Department of the Treasury, as amended.
W. "Taxable Year" means the Company's taxable year as determined in accordance
with Article V.
X. "Transfer," as a noun, means a transaction or event by which ownership of a
Membership Interest is changed or encumbered, including, without limitation, a sale,
exchange, abandonment, gift, pledge, or foreclosure. "Transfer," as a verb, means to effect
a Transfer.
Y. "Transferee" means a Person who acquires a Membership Interest by Transfer
from a Member or another Transferee and is not admitted as a Member in accordance with
Article 3.
ARTICLE II. THE COMPANY
2.1 Status
The Company is a Pennsylvania limited liability company organized under the Act.
2.2 Name
The Company's name is John Adams Investments, LLC.
2.3 Term
The Company's existence will commence on the Effective Date and continue until
terminated under this Agreement.
2.4 Purpose
The Company's purpose is to engage in any lawful act or activity for which a limited
liability company may be organized under the Act.
2.5 Principal Place of Business
The Company's principal place of business is located at 115 Bryce Road, Camp Hill, PA
17011.
2.6 Registered Agent and Registered Office
The Company's registered office in Pennsylvania is located at 115 Bryce Road, Camp
Hill, PA 17011, and its registered agent at that location is Adam C Abram. The Company
may change its registered agent or registered office at any time in accordance with the Act.
ARTICLE III. MEMBERS
3.1 Identification
A. Initial Members. The names, addresses, and Membership Interests of the initial
Members are as follows:
Adam C Abram, 115 Bryce Road, Camp Hill, PA 17011
50 percent
John Royal Jr, 1109 Oak Lane, New Cumberland, Pennsylvania 17070
50 percent
3.2 Changes and Verification of Membership Interests
A. Changes in Membership Interests. The Members' Membership Interests may be
changed only with the approval of all Members and Managers.
B. Verification of Membership Interests. Within 10 days after receipt of a Member's
written request, the Company will provide the Member with a statement of the Member's
Membership Interest. The statement will serve the sole purpose of verifying the Member's
Membership Interest, as reflected in the Company's records, and will not constitute for any
purpose a certificated security, negotiable instrument, or other vehicle by which a Transfer
of a Membership Interest may be effected.
3.3 Manner of Acting
A. Meetings.
(i) Right to Call. Any Member or combination of Members whose
Membership Interest exceeds 10 percent may call a meeting of
Members by giving written notice to all Members not less than 10 nor
more than 60 days prior to the date of the meeting. The notice must
specify the date of the meeting and the nature of any business to be
transacted. A Member may waive notice of a meeting of Members
orally, in writing or by attendance at the meeting.
(ii) Proxy Voting. A Member may act at a meeting of Members through a
Person authorized by signed proxy.
(iii) Quorum. Members whose aggregate Membership Interest exceeds 50
percent will constitute a quorum at a meeting of Members. No action
may be taken in the absence of a quorum.
(iv)Required Vote. Except with respect to matters for which a greater
minimum vote is required by the Act or this Agreement, the vote of
Members present whose aggregate Membership Interest exceeds 50
percent of the aggregate Membership Interest of all Members present
will constitute the act of the Members at a meeting of Members.
(v) Written Consent. The Members may act without a meeting by written
consent describing the action and signed by Members whose
aggregate Membership Interest is at least equal to the minimum that
would be necessary to take the action at a meeting at which all
Members were present.
(vi)Action through Managers. The Company may act through one or
more Managers, whose rights, obligations, and duties are described in
Article 6.
3.4 Fiduciary Duties
A. Liability for Wrongful Acts. A Member will be liable to and indemnify the
Company for all costs, expenses, or damages attributable to an act or omission that
constitutes a breach of this Agreement, negligence, misconduct, or a violation of law.
B. Limitation on Individual Authority. A Member who is not also a Manager has no
authority to bind the Company. A Member whose unauthorized act obligates the Company
to a third party will indemnify the Company for any costs or damages the Company incurs
as a result of the unauthorized act.
C. Justifiable Reliance. A Member may rely on the Company's records maintained in
good faith and on information, opinions, reports, or statements received from any Person
pertaining to matters the Member reasonably believes to be within the Person's expertise
or competence.
3.5 Indemnification of Members
The Company will indemnify each Member for all expenses, losses, liabilities, and
damages the Member actually and reasonably incurs in connection with the defense or
settlement of any action arising out of or relating to the conduct of the Company's activities,
except an action with respect to which the Member is adjudged to be liable for breach of a
fiduciary duty owed to the Company or the other Members under the Act or this Agreement.
3.6 Compensation
The Company may compensate a Member for services rendered to or on behalf of the
Company. A Member's compensation may be determined with or without regard to Profit or
other indicators of the results of operations. Compensation paid to Members will be treated
as an expense for purposes of determining Profit. The Company will reimburse each
Member for reasonable expenses properly incurred on the Company's behalf.
3.7 Resignation of a Member
A Member at any time may resign from the Company by giving written notice to the
Company and the other Members at least 60 days prior to the effective date of the
resignation.
3.8 Transfer of Membership Interest
A. Restrictions on Transfer. A Member may Transfer a Membership Interest only in
compliance with this Article 3. A Member may transfer his, her, or its Membership Interest
only with the prior written consent of all of the Members and Managers. An attempted
Transfer of all or a portion of a Membership Interest that is not in compliance with this
Article 3 is null and void.
B. Transferor's Membership Status. If a Member Transfers less than all of the
Membership Interest, the Member's rights with respect to the transferred portion, including
. a
the right to vote or otherwise participate in the Company's governance and the right to
receive Distributions, will terminate as of the effective date of the Transfer. However, the
Member will remain liable for any obligation with respect to the transferred portion that
existed prior to the effective date of the Transfer, including any costs or damages resulting
from the Member's breach of this Agreement. If the Member Transfers all of the
Membership Interest, the Transfer will constitute an event of Dissociation for purposes of
Article 3.
C. Transferee's Status.
(i) Admission as a Member. A Member who Transfers a Membership
Interest has no power to confer on the Transferee the status of a
Member. A Transferee may be admitted as a Member only in
accordance with the provisions of Article 3. A Transferee who is not
admitted as a Member has only the rights described in this Article 3.
(ii) Rights of Non-Member Transferee. A Transferee who is not admitted
as a Member in accordance with the provisions of Article 3, (i) has no
right to vote or otherwise participate in the Company's governance, (ii)
is not entitled to receive information concerning the Company's affairs
or inspect the Company's books and records, (iii) with respect to the
transferred Membership Interest, is entitled to receive the Distributions
to which the Member would have been entitled had the Transfer not
occurred, but only at such times and in such amounts as the Company
in its sole discretion may determine, and (iv) is subject to the
restrictions imposed by this Article 3 to the same extent as a Member.
3.9 Dissociation
A. Events of Dissociation. A Member's Dissociation from the Company occurs
upon: (1) the Member's resignation or expulsion from the Company; (2) the Member's
Transfer of the Member's entire Membership Interest; (3) the Member's Bankruptcy; (4) as
to a Member who is a natural person, the Member's death or adjudication of incompetency;
(5) as to a Member who holds a Membership Interest as a fiduciary, distribution of the
entire Membership Interest to the beneficial owners; or (6) as to a Member that is an Entity,
the Entity's dissolution.
B. Rights of Member Following Dissociation.
(i) Upon Company's Continuance. If a Member's Dissociation does not
result in the Company's dissolution under Article 7, as of the effective
date of the Member's Dissociation: (i) the Member's right to participate
in the Company's governance, receive information concerning the
Company's affairs and inspect the Company's books and records will
terminate; and (ii) unless the Dissociation resulted from the Transfer of
the Member's entire Membership Interest, the Member will be entitled
to receive the Distributions to which the Member would have been
entitled had the Dissociation not occurred, but only at such times and
in such amounts as the Company in its sole discretion may determine.
Except as provided in this Article 3, the Member will have no right to
receive Distributions or otherwise participate in the Company's
financial affairs. The Member will, however, remain liable for any
obligation to the Company that existed prior to the effective date of the
Dissociation, including any costs or damages resulting from the
Member's breach of this Agreement.
3.10 Redemption of Dissociating Member's Interest
A. Optional Redemption. If a Member's Dissociation is a result of Bankruptcy,
dissolution, or Transfer of Membership Interest, and if the Dissociation does not cause the
Company's dissolution under Article 6, at any time within 180 days after the effective date
of the Dissociation, the Company may redeem not less than all of the Member's
Membership Interest on the terms set forth in this Article 3.
The Company must exercise its right to redeem the Membership Interest by giving
written notice to the Member or the Member's successor in interest (the "seller") within the
180-day exercise period. The notice must specify the redemption price and payment terms
and indicate a closing date within 60 days after the date the notice is delivered.
B. Redemption Price. The redemption price of the Membership Interest is an amount
equal to the Company's value as of the effective date of the Dissociation, multiplied by the
seller's Membership Interest.
For the purpose of determining the redemption price, the Company's value is the value
determined by unanimous agreement of the Members at five-year intervals.
If the Members fail to redetermine the Company's value for any year, the Company's
value will be an amount equal to the lesser of the last value determined by unanimous
agreement of the Members, as set forth on the Schedule of Values attached to this
Agreement or the Member's Capital Account.
C. Payment Terms. The Company will pay the redemption price at the closing in the
form of its promissory note in the principal amount of the purchase price payable in 15
equal annual installments, with interest compounded annually at an annual rate equal to
the greater of six percent (6 %) or the minimum rate necessary to avoid the imputation of
interest between the parties under Internal Revenue Code sections 483, 1274, and 7872,
as of the date the Company gives the seller notice of the redemption.
ARTICLE IV.FINANCE
4.1 Contributions
A. Initial Members. The initial Members will make the Contributions described below:
Adam C Abram will contribute cash in the amount of
John Royal Jr will contribute cash in the amount of
$
B. Additional Members. A Person admitted as a Member in connection with the
acquisition of a Membership Interest directly from the Company after the Effective Date will
make the Contributions specified in the agreement pursuant to which the Person is
admitted as a Member.
C. Additional Contributions.
(i) Permitted. The Company may authorize additional Contributions at
such times and on such terms and conditions as it determines to be in
its best interest.
D. Required.
(i) If at any time the Company determines that its financial resources are
insufficient to meet the reasonable needs of its business, it may require
the Members to make additional Contributions sufficient to meet those
needs. The Members will make the additional Contributions in
proportion to their Membership Interests.
(ii) The Company must give each Member written notice of the obligation
to contribute additional capital. The notice must explain the need for
additional capital, specify the amount the Member is required to
contribute and establish a due date that is not less than 30 days after
the date of the notice. The Member will make the Contribution in
immediately available funds on or before the due date specified in the
notice.
E. Default Remedies. If a Member does not contribute the Member's share of a
required additional Contribution on or before the due date, the Company may (i) take such
action as it considers necessary or appropriate to enforce the Member's obligation or (ii)
accept Contributions from the other Members in satisfaction of the defaulting Member's
obligation, in proportion to their Membership Interests. If the Company accepts
Contributions from other Members, the Membership Interest of each Member will be
adjusted to correspond to the ratio that the Capital Investment of the Member bears to
aggregate Capital Investment of all Members, adjusted to reflect the Contributions made by
other Members in satisfaction of the defaulting Member's obligation.
F. Creditors' Rights. A Member's obligation to make additional contributions extends
only to the Company and may not be enforced by the Company's creditors without the
Member's written consent.
G. Contributions Not Interest Bearing. A Member is not entitled to interest or other
compensation with respect to any cash or property the Member contributes to the
Company.
H. No Return of Contribution. A Member is not entitled to the return of any
Contribution prior to the Company's dissolution and winding up.
4.2 Allocation of Profits and Losses
A. Profits. After giving effect to any special allocation required by Article 4, the
Company's Profit for a Taxable Year, including the Taxable Year in which the Company is
dissolved, will be allocated among the Members in the following order of priority:
(i) first, to the extent of any excess of cumulative Losses for all prior
Taxable Years over cumulative Profits for all prior Taxable Years, in
proportion to the allocation of such excess under Article 4;
(ii) any balance, in proportion to the Members' Membership Interests.
B. Losses. After giving effect to any special allocation required by Article 4, the
Company's Loss for a Taxable Year, including the Taxable Year in which the Company is
dissolved, will be allocated among the Members in the following order of priority:
(i) first, in proportion to the Members' Membership Interests to the extent
of any excess of cumulative Profits for all prior Taxable Years over
cumulative Losses for all prior Taxable Years;
(ii) second, in proportion to the Members' respective Capital Investments;
and
(iii)any balance, in proportion to the Members' Membership Interests.
C. Special Allocations.
(i) If a Member unexpectedly receives an adjustment, allocation, or
distribution described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) of
the Regulations that creates or increases a deficit in the Member's
Capital Account as of the end of a Taxable Year, a pro rata portion of
each item of the Company's income, including gross income and gain
for the Taxable Year and, if necessary, for subsequent years will be
allocated to the Member in an amount and manner sufficient to
eliminate the deficit in the Member's Capital Account as quickly as
possible.
(ii) If a Member would have a deficit in his or her Capital Account at the
end of a Taxable Year that exceeds the sum of (i) the amount the
Member is obligated to restore to the Company under Section 1.704-
1(b)(2)(ii)(c) of the Regulations and (ii) the Member's share of
Minimum Gain, a pro rata portion of each item of the Company's
income, including gross income, and gain for the year will be allocated
to the Member in an amount and manner sufficient to eliminate the
deficit in the Member's Capital Account as quickly as possible.
(iii) If there is a net decrease in the Company's Minimum Gain during a
Taxable Year, the items of the Company's income, including gross
income and gain for the Taxable Year and, if necessary, for
subsequent years will be allocated to the Members in proportion to
their shares of the net decrease in Minimum Gain. If the allocation
made by this paragraph would cause a distortion in the economic
arrangement among the Members and it is expected that the Company
will not have sufficient income to correct that distortion, the Company
may seek to have the Internal Revenue Service waive the requirement
for the allocation in accordance with Section 1.704-2(f)(4) of the
Regulations.
(iv)Items of the Company's loss, deductions, and expenditures described
in Code Section 705(a)(2)(B) that are attributable to the Company's
nonrecourse debt and are characterized as Member nonrecourse
deductions under Section 1.704-2(i) of the Regulations will be
allocated to the Members' Capital Accounts in accordance with Section
1.704-2(i) of the Regulations.
(v) Items of income, gain, loss, and deduction with respect to property
contributed to the Company's capital will be allocated between the
Members so as to take into account any variation between book value
and basis, to the extent and in the manner prescribed by section
704(c) of the Code and related Regulations.
(vi)If the special allocations required by the foregoing provisions of this
Article IV (the "special allocations") result in Capital Account balances
that are different from the Capital Account balances the Members
would have had if the special allocations were not required, the
Company will allocate other items of income, gain, loss, and deduction
in any manner it considers appropriate to offset the effects of the
special allocations on the Members' Capital Account balances. Any
offsetting allocation required by this paragraph is subject to and must
be consistent with the special allocations.
D. Effect of Transfers During Year. The Company will prorate items attributable to a
Membership Interest that is the subject of a Transfer during a Taxable Year between the
transferor and the Transferee based on the portion of the Taxable Year that elapsed prior
to the Transfer.
4.3 Tax Allocations
For federal income tax purposes, unless the Code otherwise requires, each item of the
Company's income, gain, loss, or deduction will be allocated to the Members in proportion
to their allocations of the Company's Profit or Loss.
4.4 Distributions
A. Available Funds.The Company will distribute its Available Funds to the Members
in such amounts and at such times as are determined solely by the Managers.
4.5 Capital Accounts
A. General Maintenance. The Company will establish and maintain a Capital
Account for each Member. A Member's Capital Account will be:
(i) increased by (i) the amount of any money the Member contributes to
the Company's capital; (ii) the fair market value of any property the
Member contributes to the Company's capital, net of any liabilities the
Company assumes or to which the property is subject; and (iii) the
Member's share of Profits and any separately stated items of income
or gain; and
(ii) decreased by: (i) the amount of any money the Company distributes to
the Member; (ii) the fair market value of any property the Company
distributes to the Member, net of any liabilities the Member assumes or
to which the property is subject; and (iii) the Member's share of Losses
and any separately stated items of deduction or loss.
B. Adjustments for Distributions in Kind. If at any time the Company distributes
property in kind, it will adjust the Members' Capital Accounts to account for their shares of
any Profit or Loss the Company would have realized had it sold the property at fair market
value and distributed the sale proceeds.
C. Adjustments for Acquisitions and Redemptions. If at any time a Person
acquires a Membership Interest from the Company or the Company redeems a
Membership Interest, the Company may adjust the Members' Capital Accounts to reflect
any Profit or Loss the Company would have realized had it sold all of its assets at fair
market value on the date of the acquisition or redemption.
D. Transfer of Capital Account. A Transferee of a Membership Interest succeeds to
the portion of the transferor's Capital Account that corresponds to the portion of the
Membership Interest that is the subject of the Transfer.
E. Compliance with Code. The requirements of this Article IV are intended and will
be construed to ensure that the allocations of th_e Company_'.s_income, gain,_losses,___
,deductions, and credits have substantial economic effect under the Regulations
promulgated under Section 704(b) of the Code.
ARTICLE V. RECORDS AND ACCOUNTING
5.1 Maintenance of Records
A. Required Records. The Company will maintain at its registered office in
Pennsylvania:
(i) a current list, in alphabetical order, of the full name and last known
business, residence, or mailing address of each Member;
(ii) copies of the Certificate and Certificate of Organization, including
articles and certificates of amendment;
(iii) copies of the Company's federal, state, and local income tax returns
and reports, if any, for the three most recent Taxable Years;
(iv) a copy of this Agreement, including any amendments;
(v) a schedule showing the amount of cash, if any, and a description and
statement of the agreed value of the other property or services, if
any, contributed or required to be contributed by each Member;
(vi) a description of the times or events at or upon which any Member is
required to make additional Contributions;
(vii) a description of any right of a Member to receive, or of the Company
to make, Distributions to the Member that include a return of all or
any part of the Member's contribution; and
(viii) a description of the events upon which the Company will be dissolved
and its affairs wound up.
B. Member Access. A Member and the Member's authorized representative have
reasonable access to and may inspect and copy all records and other materials pertaining
to the Company or its activities. The exercise of such rights will be at the requesting
Member's expense.
C. Confidentiality. No Member will disclose any information relating to the Company
or its activities to any unauthorized person or use any such information for his or her or any
other Person's personal gain.
5.2 Financial Accounting
A. Accounting Method. The Company will account for its financial transactions using
a method of accounting determined by the Members in compliance with Sections 446 and
448 of the Code.
B. Taxable Year. The Company's Taxable Year is the Company's annual accounting
period, as determined by the Members in compliance with Sections 441, 444, and 706 of
the Code.
5.3 Reports
A. Members. As soon as practicable after the close of each Taxable Year, the
Company will prepare and send to the Members such reports and information as are
reasonably necessary to (1) inform the Members of the results of the Company's
operations for the Taxable Year and (2) enable the Members to completely and accurately
reflect their distributive shares of the Company's income, gains, deductions, losses, and
credits in their federal, state, and local income tax returns for the appropriate year.
B. Periodic Reports. The Company will complete and file any periodic reports
required by the Act or the law of any other jurisdiction in which the Company is qualified to
do business.
5.4 Tax Compliance
A. Withholding. If the Company is required by law or regulation to withhold and pay
over to a governmental agency any part or all of a Distribution or allocation of Profit to a
Member:
(i) the amount withheld will be considered a Distribution to the Member;
and
(ii) if the withholding requirement pertains to a Distribution in kind or an
allocation of Profit, the Company will pay the amount required to be
withheld to the governmental agency and promptly take such action as
it considers necessary or appropriate to recover a like amount from the
Member, including offset against any Distributions to which the
Member would otherwise be entitled.
B. Tax Matters Partner. The Company will designate a Member to act as the "Tax
Matters Partner" pursuant to Section 6231(a)(7) of the Code. The initial Tax Matters Partner
shall be Adam C Abram. The Company may remove any Tax Matters Partner, with or
without cause, and designate a successor to any Tax Matters Partner who for any reason
ceases to act. The Tax Matters Partner will inform the Members of all administrative and
judicial proceedings pertaining to the determination of the Company's tax items and will
provide the Members with copies of all notices received from the Internal Revenue Service
regarding the commencement of a Company-level audit or a proposed adjustment of any of
the Company's tax items. The Tax Matters Partner may extend the statute of limitations for
assessment of tax deficiencies against the Members attributable to any adjustment of any
tax item. The Company will reimburse the Tax Matters Partner for reasonable expenses
properly incurred while acting within the scope of the Tax Matters Partner's authority.
ARTICLE VI. MANAGEMENT
6.1 Representative Management
The Company will be managed by a Manager or Managers. The name and business
address of the Company's initial Manager(s) are:
Adam C Abram 115 Bryce Road, Camp Hill, PA 17011
John Royal Jr, 1109 Oak Lane, New Cumberland, Pennsylvania, 17070.
6.2 Time Devoted to Business
Managers will devote only the amount of time to the Company's activities as is
reasonably necessary to discharge the Managers' responsibilities.
6.3 Powers and Authority
A. General Scope. Except for matters on which the Members' approval is required by
the Act or this Agreement, the Managers have full power, authority, and discretion to
manage and direct the Company's business, affairs, and properties, including, without
limitation, the specific powers referred to in this Article 6.3.
B. Specific Powers.
(i) The Managers are authorized on the Company's behalf to make all
decisions as to (i) the development, sale, lease, or other disposition of
the Company's assets; (ii) the purchase or other acquisition of other
assets of all kinds; (iii) the management of all or any part of the
Company's assets and business; (iv) the borrowing of money and the
granting of security interests in the Company's assets (including loans
from Members); (v) the prepayment, refinancing, or extension of any
mortgage affecting the Company's assets; (vi) the compromise or
release of any of the Company's claims or debts; (vii) the employment
of Persons for the operation and management of the Company's
business; and (viii) all elections available to the Company under any
federal or state tax law or regulation.
(ii) Each Manager on the Company's behalf may execute and deliver (i) all
contracts, conveyances, assignments, leases, subleases, franchise
agreements, licensing agreements, management contracts, and
maintenance contracts covering or affecting the Company's assets; (ii)
all checks, drafts, and other orders for the payment of the Company's
funds; (iii) all promissory notes, mortgages, deeds of trust, security
agreements, and other similar documents; (iv) all articles, certificates,
and reports pertaining to the Company's organization, qualification,
and dissolution; (v) all tax returns and reports; and (vi) all other
instruments of any kind or character relating to the Company's affairs.
6.4 Manner of Acting
A. General. A Manager may act with respect to any matter within the scope of his or
her authority if there is one Manager or if there is more than one Manager at a meeting of
Managers or pursuant to formal or informal procedures adopted at a meeting of Managers.
Procedures that may be adopted at a meeting of Managers include, without limitation, the
establishment of dates and times for regular meetings, procedures pursuant to which the
Managers may approve a matter without a meeting and the delegation of duties and
responsibilities with respect to which the delegate may act without approval or ratification
by the other Managers.
B. Meetings. If there is more than one Manager:
(i) Right to Call. Any Manager may call a meeting of Managers by giving
written notice to all Managers not less than ten (10) nor more than sixty
(60) days prior to the date of the meeting. The notice must specify the
date of the meeting and the nature of any business to be transacted. A
Manager may waive notice of a meeting of Managers orally, in writing
or by attendance at the meeting.
(ii) Proxy Voting. A Manager may act at a meeting of Managers through
another Manager authorized by signed proxy.
C. Written Consent. The Managers may act without a meeting by written consent
describing the action and signed by Managers whose voting power is at least equal to the
minimum that would be necessary to take the action at a meeting at which all Managers
were present.
D. Required Approval. The Managers' majority approval is required for any matter
arising within the scope of their authority, subject to any procedures adopted at a meeting
of Managers pursuant to Section 6.4(a).
E. Participation by Non-Member Managers. The fact that a Manager is not also a
Member in no way limits the Manager's right to vote on any matter properly within the
scope of the Managers' authority under this Agreement.
6.5 Agency Power and Authority
A Manager apparently acting for the Company in the usual course of its business has
the power to bind the Company and no person has an obligation to inquire into the
Manager's actual authority to act on the Company's behalf. However, if a Manager acts
outside the scope of the Manager's actual authority, the Manager will indemnify the
Company for any costs or damages it incurs as a result of the unauthorized act.
6.6 Fiduciary Duties
A. Standard of Care.
(i) Liability for Wrongful Acts. A Manager is liable to and will indemnify
the Company for all costs, expenses, or damages attributable to an act
or omission that constitutes a breach of this Agreement, negligence,
misconduct, or a violation of law.
(ii) Justifiable Reliance. A Manager may rely on the Company's records
maintained in good faith and on information, opinions, reports, or
statements received from any Person pertaining to matters the
Manager reasonably believes to be within the Person's expertise or
competence.
B. Competing Activities. A Manager may participate in any business or activity
without accounting to the Company or the Members. A Manager may not, however, accept
a business opportunity for the Manager's own account that the Manager believes or has
reason to believe the Company would accept if brought to its attention. A Manager must
disclose to the Company any business opportunity of which the Manager becomes aware.
If the Company declines to accept the opportunity, the Manager may pursue it for the
Manager's own account. If the Manager fails to disclose the opportunity, the Manager will
account to the Company for any income the Manager derives from the opportunity and will
indemnify the Company for any loss the Company incurs as a result of the failure to
disclose.
C. Self-Dealing. A Manager may enter into a business transaction with the Company
if the terms of the transaction are no less favorable to the Company than those of a similar
transaction with an independent third party. Approval or ratification by Members having no
interest in the transaction constitutes conclusive evidence that the terms satisfy the
foregoing condition.
6.7 Indemnification of Managers
The Company will indemnify each Manager for all expenses, losses, liabilities, and
damages the Manager actually and reasonably incurs in connection with the defense or
settlement of any action arising out of or relating to the conduct of the Company's activities,
except an action with respect to which the Manager is adjudged to be liable for breach of a
fiduciary duty owed to the Company or the Members under the Act or this Agreement.
6.8 Compensation
The Company may, with the approval of the Members, compensate any Manager for
services to or on behalf of the Company. The Company will reimburse each Manager for
reasonable expenses properly incurred on the Company's behalf.
6.9 Tenure
A. Term. A Manager will serve until the earlier of: (1) the Manager's resignation; (2)
the Manager's Bankruptcy; (3) as to a Manager who is a natural person, the Manager's
death or adjudication of incompetency; and (4) as to a Manager that is an Entity, the
Manager's dissolution.
B. Resignation. A Manager at any time may resign by written notice delivered to the
Members at least thirty (30) days prior to the effective date of the resignation.
C. Vacancy. If a Manager for any reason ceases to act, the Members will promptly
elect a successor, to serve until a successor is elected and qualified.
ARTICLE VI1. DISSOLUTION
7.1 Events of Dissolution
A. Enumeration. The Company will dissolve upon the first to occur of:
(i) the unanimous vote of all of the Members and Managers to dissolve
the Company;
(ii) any event that makes the Company ineligible to conduct its activities
as a limited liability company under the Act;
(iii) any event or circumstance that makes it unlawful or impossible for the
Company to carry on its business; or
B. Exclusivity of Events. Unless specifically referred to in this Article 7, no event,
including an event of dissolution prescribed by the Act, will result in the Company's
dissolution.
7.2 Effect of Dissolution
A. Appointment of Liquidator. Upon the Company's dissolution, the Members will
appoint a liquidator, who may but need not be a Member. The liquidator will wind up and
liquidate the Company in an orderly, prudent, and expeditious manner in accordance with
the following provisions of this Article 7.
B. Final Accounting. The liquidator will make proper accountings (1) to the end of
the month in which the event of dissolution occurred and (2) to the date on which the
Company is finally and completely liquidated.
C. Duties and Authority of Liquidator. The liquidator will make adequate provision
for the discharge of all of the Company's debts, obligations, and liabilities. The liquidator
may sell, encumber, or retain for distribution in kind any of the Company's assets. Any gain
or loss recognized on the sale of assets will be allocated to the Members' Capital Accounts
in accordance with the provisions of Article 4. With respect to any asset the liquidator
determines to retain for distribution in kind, the liquidator will allocate to the Members'
Capital Accounts the amount of gain or loss that would have been recognized had the
asset been sold at its fair market value.
D. Final Distribution. The liquidator will distribute any assets remaining after the
discharge or accommodation of the Company's debts, obligations, and liabilities to the
Members in proportion to their Capital Accounts. The liquidator will distribute any assets
distributable in kind to the Members in undivided interests as tenants in common. A
Member whose Capital Account is negative will have no liability to the Company, the
Company's creditors or any other Member with respect to the negative balance.
E. Required Filings. The liquidator will file with the Secretary of State such
statements, certificates, and other instruments, and take such other actions, as are
reasonably necessary or appropriate to effectuate and confirm the cessation of the
Company's existence.
ARTICLE Vill. GENERAL PROVISIONS
8.1 Amendments
A. Required Amendments. The Company and the Members will execute and file any
amendment to the Certificate, as required by the Act. If any such amendment results in
inconsistencies between the Certificate and this Agreement, this Agreement will be
considered to have been amended in the specifics necessary to eliminate the
inconsistencies.
B. Other Amendments. Any Member may propose for consideration and action an
amendment to this Agreement or to the Certificate. A proposed amendment will become
effective at such time as it is approved by all Members and Managers.
8.2 Nominee
Title to the Company's assets may be held in the name of the Company or any nominee
(including any Member so acting), as the Company determines. The Company's agreement
with any nominee may contain provisions indemnifying the nominee for costs or damages
incurred as a result of the nominee's service to the Company.
8.3 Investment Representation
Each Member represents to the Company and the other Members that (a) the Member
is acquiring a Membership Interest in the Company for investment and for the Member's
own account and not with a view to its sale or distribution and (b) neither the Company nor
any other Member has made any guaranty or representation upon which the Member has
relied concerning the possibility or probability of profit or loss resulting from the Member's
investment in the Company.
8.4 Resolution of Disputes
A. Mediation. The parties will endeavor in good faith to resolve all disputes arising
under or related to this Agreement by mediation according to the then prevailing rules and
procedures of the American Arbitration Association.
B. Arbitration. If the parties fail in their attempt to resolve a dispute by mediation,
they will submit the dispute to arbitration according to the then prevailing rules and
procedures of the American Arbitration Association. Pennsylvania law will govern the rights
and obligations of the parties with respect to the matters in controversy. The arbitrator will
allocate all costs and fees attributable to the arbitration between the parties equally. The
arbitrator's award will be final and binding and judgment may be entered in any court of
competent jurisdiction.
8.5 Notices
Notices contemplated by this Agreement may be sent by any commercially reasonable
means, including hand delivery, first class mail, fax, e-mail, or private courier. The notice
must be prepaid and addressed as set forth in the Company's records. The notice will be
effective on the date of receipt or, in the case of notice sent by first class mail, the fifth day
after mailing.
8.6 Resolution of Inconsistencies
If there are inconsistencies between this Agreement and the Certificate, the Certificate
will control. If there are inconsistencies between this Agreement and the Act, this
Agreement will control, except to the extent the inconsistencies relate to provisions of the
Act that the Members cannot alter by agreement. Without limiting the generality of the
foregoing, unless the language or context clearly indicates a different intent, the provisions
of this Agreement pertaining to the Company's governance and financial affairs and the
rights of the Members upon Dissociation and dissolution will supersede the provisions of
the Act relating to the same matters.
8.7 Provisions Applicable to Transferees
As the context requires and subject to the restrictions and limitations imposed by Article
3, the provisions of this Agreement pertaining to the rights and obligations of a Member
also govern the rights and obligations of the Member's Transferee.
8.8 Additional Instruments
Each Member will execute and deliver any document or statement necessary to give
effect to the terms of this Agreement or to comply with any law, rule, or regulation
governing the Company's formation and activities.
8.9 Headings
Headings and paragraph titles are for convenience only and have no significance in the
interpretation of this Agreement.
8.10 Computation of Time
In computing any period of time under this Agreement, the day of the act or event from
which the specified period begins to run is not to be included. The last day of the period is
included, unless it is a Saturday, Sunday, or legal holiday, in which case the period will run
until the end of the next day that is not a Saturday, Sunday, or legal holiday.
8.11 Entire Agreement
This Agreement and the Certificate comprise the entire agreement among the parties
with respect to the Company. This Agreement and the Certificate supersede any prior
agreements or understandings with respect to the Company. No representation, statement,
or condition not contained in this Agreement or the Certificate has any force or effect.
8.12 Waiver
No right under this Agreement may be waived, except by an instrument in writing signed
by the party sought to be charged with the waiver.
8.13 General Construction Principles
Words in any gender are deemed to include the other genders. The singular is deemed
to include the plural and vice versa. The headings and bold paragraph titles are for
guidance only and have no significance in the interpretation of this Agreement.
8.14 Binding Effect
Subject to the provisions of this Agreement relating to the transferability of Membership
Interests and the rights of Transferees, this Agreement is binding on and will inure to the
benefit of the Company, the Members and their respective distributees, successors, and
assigns.
8.15 Governing Law
Pennsylvania law governs the construction and application of the terms of this
Agreement.
8.16 Counterparts
This Agreement may be executed in counterparts, each of which will be considered an
original.
[remainder of this page intentionally left blank]
Signed on the respective dates set forth below, to be effective as of the Effective Date.
COMPANY:
John ams Investments, LLC `
November 12009
DATE Adam C Abram, Manager
November 12009
DATE J7 Royal J Ma' nbber
INITIAL MEMBERS:
November 12009 0
D
LA/� - 9--,
ATE Adam C Abram
November 12009
DATE oh Royal Jr
COMMONWEALTH OF PENNSYLVANIA )
SS:
COUNTY OF Cumberland
On this, the 9st-.day of November, 2009, before me, a Notary Public, personally
appeared Adam C Abram and John Royal Jr whose names are subscribed to the within
instrument, and acknowledged that, each executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
?f fin,-�L71i ti r 1
L�� �,`o�li".o tZ;�.i:ia•,e��.'��J�,i���1rf
otary P lic , •;; `:�,n�yriert.2,,,s
My co fission expires; aslP�r. �no'�s
Exhibit "B"
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P.O. BOX 168
LEMOYNE,PENNSYLVANIA 17043
MAILING ADDRESS: TELEPHONE
P.O.BOX 168 (717)761-5361
LEMOY NE,PA 17043-0168
FAX
E-MAIL:LawAndes@aol.mm (717)761-1435
7 April 2014
ifeichte1 cr,ssr-attorneys.com
RE: John Adams Investments LLC
Dear John:
My clients continue to believe that Mr. Royal was involved in the items removed
from the LLC's property. We have your claim that he only removed items that belonged
to him, but there are many items missing that belonged to the LLC and which it paid for.
Either he was involved in removing them or, by breaking into the property and leaving it
unsecured, he contributed to the loss of those items.
My clients have been repeatedly contacted, indirectly, by Mr. Royal. He has
apparently told several people to contact them under the guise of leasing space or dealing
with the LLC. None of that has been helpful and, frankly, has been harassing to my
clients.
I write to advise Mr. Royal, through you, that he has not to enter onto any of the
properties owned by the LLC without the prior notice and consent of Adam Abram. If he
has a legitimate need to enter any of the properties, he should contact you to contact me
so we can make arrangements for him to have access to the properties as necessary.
This letter also should serve to put your client on notice that he is not to have any
communication or contact with Adam or Susan Abram, directly or indirectly, from this
point forward. If he needs to communicate with them about anything, he should do it
through you and me.
If your client violates the restrictions set out in this letter, my clients are prepared
to prosecute him for criminal trespass or for harassment. I do not believe I have to recite
to you the elements of those crimes or my clients' rights to prosecute your client if he
violates those provisions of the law.
We are providing your client a reasonable means to communicate about these
matters. We expect him to cooperate so that the properties owned by the LLC, along with
its other assets, can be protected and managed for the benefit of the company.
Please contact my office if you have any questions on these matters.
Sine erely,
ale
Samuel L. Andes
amh
cc: Dr. Adam C. Abram (via e-mail)
ADAM C. ABRAM and
SUSAN A. ABRAM, his wife,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION — LAW
JOHN ADAMS INVESTMENTS,:
LLC,
Defendant : NO. 14-2182 CIVIL TERM
IN RE: PETITION TO INTERVENE AND
REQUEST FOR STAY OF JOHN ROYAL
ORDER OF COURT
AND NOW, this 8th day of May, 2014, upon consideration of the Petition To
Intervene and Request for Stay of John Royal, a Rule is hereby issued upon all interested
parties to show cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
IT IS FURTHER ORDERED that all proceedings in this matter are STAYED
pending consideration of the Petition To Intervene.
/Samuel L. Andes, Esq.
525 N. 12th Street
P.O. box 168 j
Lemoyne, PA 17043-1213
/aniel L. Sullivan, Esq.
26 West High Street
Carlisle, PA 17013
1
(John Adams Investments, LLC
115 Bryce Road
Camp Hill, PA 17011
:rc
BY THE COURT,
04,4,/te,, raeC.
Christyl e L. Peck, J.
x0
P1C
1111 9;
3
4N r
ADAM C. ABRAM and SUSAN A.
ABRAM, his wife,
Plaintiffs
vs.
JOHN ADAMS INVESTMENTS, LLC,
Defendant
STIPULATION
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 14-2182
AND NOW come the above-named Plaintiffs, and John Royal the proposed intervener,
and stipulate and agree that the attached order shall be entered by the court to grant Mr. Royal
leave to intervene in the case.
Samuel L. Andes
Attorney for Plaintiffs
Daniel L. Sullivan
Attorney for John Royal
k HE I ROl I lON 1
20iii SEP 23 PH 2: t45
CUMBERLAND COUNTY
RLf44SYL Vl\PfA
ADAM C. ABRAM and SUSAN A.
ABRAM, his wife,
Plaintiffs
vs.
JOHN ADAMS INVESTMENTS, LLC,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 14-2182
ORDER OF COURT
AND NOW, this)a9rl4( day of
, 2014, upon the agreement of
the parties, John Royal is hereby granted to leave to intervene in the above matter as a party
interested in John Adams Investments, LLC, the Defendant. The stay previously issued in the
case is hereby DISSOLVED and Mr. Royal is directed to file his Answer to Plaintiffs'
Complaint within 10 days of the date of this Order.
BY THE COURT,
DISTRIBUTION:
4*'
�/ Samuel L Andes, Esquire (Attorney for Plaintiffs)
525 North 12`h Street, P.O. Box 168, Lemoyne, PA 17043
Xhn Adams Investments, LLC (pro se)
115 Bryce Road, Camp Hill, PA 17011
✓Daniel Sullivan, Esquire (Attorney for John Royal)
26 West High Street, Carlisle, PA 17013
�'F s /rlai
J.
5
ADAM C. ABRAM and SUSAN A.
ABRAM, his wife,
Plaintiffs
vs.
JOHN ADAMS INVESTMENTS, LLC,
Defendant
0,(2
15 flt1 9.3 9
CUMBERLAND
NS YL VANIA
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 14-2182
STIPULATION c,J
AND NOW come the above-named Plaintiffs, and John Royal the proposed intervener,
and stipulate and agree that the attached order shall be entered by the court to grant Mr. Royal
leave to intervene in the case.
Samuel L. Andes
Attorney for Plaintiffs
Daniel L. Sullivan
Attorney for John Royal
ADAM C. ABRAM and • IN THE COURT OF COMMON
SUSAN A. ABRAM, his wife : PLEAS OF CUMBERLAND
Plaintiffs • COUNTY, PENNSYLVANIA
vs. •
•
CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC, •
Defendant • NO. 14-2182
and •
JOHN ROYAL,
Intervener
. n
NOTICE TO PLEAD = ry
r._
TO: Adam C.Abram and Susan A.Abram
c/o Samuel L. Andes,Esq.
525 North 12th Street
P. O. Box 18
Lemoyne, PA 17043-1213
You are hereby notified to file a written response to the enclosed New Matter within twenty
(20)days from service hereof or a judgment may be entered against you.
TO: Adam C. Abram
c/o Samuel L. Andes, Esq.
525 North 12th Street
P. O. Box 18
Lemoyne, PA 17043-1213
You are hereby notified to file a written response to the enclosed Counterclaim within twenty
(20) days from service hereof or a judgment may be entered against you.
(continued on next page)
TO: John Adams Investments,LLC
115 Bryce Road
Camp Hill,PA 17011-1303
You are hereby notified to file a written response to the enclosed New Matter Cross-Claim
Pursuant to Pa. R.C.P. 1031.1 within twenty (20) days from service hereof or a judgment may be
entered against you.
SAIDIS, SULLIVAN & ROGERS
Date: October 2, 2014 By % _\ l-.c -
DANIEL L. SULLIVAN
Attorney I.D. #34548
26 West High Street
Carlisle, PA 17013
Phone: (717) 243-6222
Email: dsullivanAssr-attorneys.com
Attorneys for Intervener
2
ADAM C. ABRAM and : IN THE COURT OF COMMON
SUSAN A. ABRAM, his wife : PLEAS OF CUMBERLAND
Plaintiffs : COUNTY, PENNSYLVANIA
•
vs. : CIVIL ACTION - LAW
JOHN ADAMS INVESTMENTS, LLC, :
Defendant : NO. 14-2182
•
and •
•
JOHN ROYAL, •
Intervener •
INTERVENER JOHN ROYAL'S ANSWER WITH NEW MATTER,
COUNTERCLAIM AND NEW MATTER CROSS-CLAIM
PURSUANT TO PA. R.C.P. 1031.1
AND NOW comes Intervener, John Royal ("Intervener"), by his attorneys, Saidis,
Sullivan & Rogers, and in response to Plaintiffs' Complaint files the following Answer with
New Matter, Counterclaim and New Matter Cross-Claim Pursuant to Pa. R.C.P. 1031.1:
1. Admitted on information and belief.
2. Admitted.
3. Denied as stated. In addition to the business of acquisition, development,
improvement and leasing of real estate, John Adams Investments, LLC (the "Company") is also
engaged in the business of selling real property when appropriate.
4. Admitted in part and denied in part. Intervener denies that the Company ever
requested that Susan A. Abram advance and loan substantial sums of money to the Company to
finance its business operations. It is admitted only that at various times Adam C. Abram, who is
a Member and Manager of the Company on an equal basis with Intervener, has conveyed certain
fi
sums of money to or on behalf of the Company for business operations. Whether these
conveyances constitute loans to the Company, or capital contributions to the Company, or
whether some conveyances represent loans and some represent capital contributions, is unknown
and is a matter in dispute. After reasonable investigation, Intervener is without information or
knowledge sufficient to form a belief whether all of the money allegedly advanced by Adam
Abram was used for the Company's business operations so that this averment is denied.
5. Denied as stated. Intervener was advised by Adam Abram or Susan Abram on
several occasions that Adam Abram conveyed money to or on behalf of the Company for
business purposes. On one of those occasions, a 4% interest rate was discussed. However, the
due date for repayment was not specifically agreed upon, but rather was to be based upon a time
when the Company had sufficient income to repay the money. Intervener was not advised of the
terms of any alleged loans with respect to other alleged conveyances of funds. Intervener's
response to paragraph 4 is hereby incorporated by reference.
6. Denied. While Intervener does not know the details of each of the conveyances
of money which Adam Abram characterizes in the Complaint as a loan and asserts a failure of
the Company to repay, Intervener believes and therefore avers that the Company as borrower
participated in several bank financings over the past several years, one significant transaction
being a major cash-out refinancing of approximately$370,000.00 in July, 2011. Intervener
believes and therefore avers that a significant portion of the proceeds of these borrowing
transactions was intended to pay back Adam Abram for money he had conveyed, and that the
Company did, in fact, pay money back to Adam Abram. Intervener has requested of Adam
Abram that he provide details and documents relating to the Company's business operations,
2
including loan documents, but Adam Abram has refused to provide such information and
documents to Intervener(except for providing limited information on QuickBooks that provided
little meaningful information or insight into the Company's business operations).
7. Denied. After reasonable investigation, Intervener is without information or
knowledge sufficient to form a belief regarding the averments of this paragraph so that they are
denied and proof demanded. In further response, nevertheless, Intervener believes and therefore
avers that the Company has repaid significant sums to Adam Abram.
8. Denied. The averments of this paragraph constitute conclusions of law to which
no responsive pleading is required. In further response, nevertheless, Intervener's responses to
paragraphs 5 —7 are hereby incorporated by reference.
NEW MATTER
9. Intervener avers on information and belief that at least some of the funds
allegedly conveyed to the Company by Adam Abram for which repayment is claimed in his
Complaint have, in fact, been repaid to him.
10. Intervener avers on information and belief that to the extent funds conveyed by
Adam Abram to the Company constitute loans, the conditions for repayment based upon the
financial condition of the Company has not yet occurred and repayment is not yet due.
11. Some of the claims for repayment of funds allegedly conveyed by Plaintiffs may
be barred by the applicable statute of limitations or laches.
WHEREFORE, Intervener, John Royal, demands that Plaintiffs' Complaint be dismissed
with prejudice and that he be awarded costs of suit and such other relief as may be appropriate.
3
COUNTERCLAIM AGAINST ADAM ABRAM AND NEW MATTER CROSS-CLAIM
PURSUANT TO PA. R.C.P. 1031.1 DIRECTED TO JOHN ADAMS INVESTMENTS
LLC
John Royal v. Adam Abram and John Adams Investments, LLC
12. Defendant, John Adams Investments, LLC, is a Pennsylvania limited liability
company owned solely by Plaintiff Adam Abram and Intervener John Royal.
13. Adam Abram and John Royal are equal, 50% owners of the Company.
14. Pursuant to the Company's Operating Agreement, a copy of which is attached
hereto as Exhibit "A,"the Company is managed by Managers rather than Members.
15. Adam Abram and John Royal are the Managers of the Company.
16. Pursuant to the terms of the Operating Agreement, if there is more than one
Manager (as is the case), majority approval of all Managers is required for any matter arising
within the scope of their authority with respect to management of the Company.
17. Over the past several months, significant differences and disputes have arisen
between Adam Abram and John Royal with respect to virtually all matters relating to the
management of the Company.
18. Despite John Royal's status as a 50% Member and Manager of the Company,
over the past several months Adam Abram has frozen John Royal out of any input or decision-
making with respect to management of the Company.
19. Despite John Royal's status as a 50% Member and Manager of the Company,
over the past several months Adam Abram has locked John Royal out of certain real estate
premises owned by the Company and has refused access to him.
4
20. Despite John Royal's status as a 50% Member and Manager of the Company,
Adam Abram has accused John Royal of"breaking into" Company real estate and, without basis,
has accused John Royal of taking Company property.
21. Despite John Royal's status as a 50%Member and Manager of the Company,
Adam Abram has engaged in a deliberate and persistent course of conduct to manage the
Company solely on his own to the exclusion of John Royal, has repeatedly refused to provide
requested information to John Royal, has refused to consult with John Royal regarding Company
management, and has refused to seek John Royal's consent as Manager of the Company for
management decisions.
22. Most recently, by letter dated April 7, 2014, Adam Abram, through his attorney,
threatened John Royal with a criminal complaint of harassment if John Royal even attempted to
communicate with Adam Abram about the Company unless the communication was conveyed
through the parties' respective attorneys. A copy of this letter is attached hereto as Exhibit"B."
23. Without prior notice to or discussion with John Royal, Adam Abram and his wife
brought the Complaint under this docket number against the Company seeking$716,068.65 in
alleged damages from the Company.
24. In addition to this pending lawsuit and again without prior notice or discussion
with John Royal, Adam Abram's wife, Susan Abram, has filed a separate lawsuit against the
Company(Docket# 14-2181) seeking$82,915.00 in damages, alleging non-payment for
bookkeeping services she allegedly provided to the Company since 2009.
25. Adam Abram did not advise John Royal in advance that he and his wife intended
to file lawsuits against the Company.
5
26. The Company's registered place of business is 115 Bryce Road, Camp Hill, PA
17011, which is also the home address of Adam and Susan Abram.
27. Plaintiffs in both lawsuits presumably served their respective Complaints against
the Company at their own home address.
28. The Company did not advise John Royal, its 50% Manager and Member, that it
had been sued by Adam Abram and by Susan Abram; rather, Plaintiffs' attorney advised John
Royal's attorney of the Complaints by letter dated six (6) days after the Complaints had been
filed.
29. In addition to freezing John Royal out of any role in management of the
Company, Adam Abram has also refused to supply information to John Royal regarding various
aspects of Company management and financial status, despite numerous requests for information
by John Royal.
30. The disagreements between John Royal and Adam Abram, coupled with the terms
of the Operating Agreement requiring action by a majority of Managers, have resulted in a
deadlock of lawful management of the Company.
31. The relationship between Adam Abram and John Royal has deteriorated into one
of a complete lack of trust, lack of communication, and lack of accountability, making continued
operation of the Company untenable.
32. The only reasonable course of action for the Company under these circumstances
is for Court appointment of a liquidating trustee charged with the duties and power to
temporarily manage the affairs of the Company, initiate and oversee a complete accounting of
6
Company finances, and move forward as expeditiously as practical with the orderly dissolution
and liquidation of the Company.
COUNT I—ACCOUNTING
33. The averments of the foregoing paragraphs 12—32 are hereby incorporated by
reference.
34. Adam Abram, who controls the Company's books and records and whose wife,
Susan Abram, has for an extended period of time handled cash flow and income/expense
management of the Company, has failed to provide requested full and timely information to John
Royal about Company management, the income and expenses of the Company, and other
information regarding the Company.
35. Adam Abram has failed to account to John Royal for the money he allegedly has
conveyed to the Company, how the money was spent, and generally, has failed to reveal to John
Royal the income and any expenses of the Company in any reasonably transparent and
meaningful manner.
WHEREFORE, Intervener, John Royal, respectfully requests that the Court order a full
and complete accounting of all Company financial affairs, and in particular, that the accounting
be undertaken under the direction and control of the liquidating trustee requested to be appointed
herein.
7
COUNT II -DISSOLUTION
36. The averments of the foregoing paragraphs 12—35 are hereby incorporated by
reference.
37. The Company has only two (2) Members and only two (2) Managers, Adam
Abram and John Royal.
38. Adam Abram and John Royal are equal 50% owners of the Company.
39. The actions of Adam Abram as described herein have made it impossible for the
Company to carry on its business in a lawful and appropriate manner.
40. The relationship between Adam Abram and John Royal is irretrievably broken,
and there is no reasonable likelihood that the two owners can cooperate in the future to operate
the Company.
41. In initiating the Complaint against the Company for damages, while
simultaneously refusing to act and leaving the Company powerless to defend itself, Adam Abram
has imminently threatened the best interests of the Company.
42. Adam Abram's unlawful attempt to unilaterally seize control of all management
of the Company, his refusal to provide information regarding Company management to John
Royal, including specific information regarding the alleged loans which are the subject of this
lawsuit, his actions in derogation of the Operating Agreement and in violation of his fiduciary
duties, and the initiation of his Complaint against the Company without notice to John Royal,
served at his own home address, under circumstances designed to assure that the Company could
not defend itself, requires that Adam Abram be removed from any role in management of the
8
Company and that the affairs of the Company be placed temporarily in the control of a court-
appointed liquidating trustee for purposes of dissolution and liquidation.
43. The only viable course of action for the Company is for it to be dissolved, the
affairs of the Company wound up, and the Company be liquidated by a liquidating trustee in an
orderly, prudent and expeditious manner, making provision for all proper debts, obligations and
liabilities of the Company, and thereafter distributing any remaining assets of the Company to
the Members as appropriate.
WHEREFORE, Intervener, John Royal, respectfully requests that the Court issue an
order that the Company be dissolved, and that under the direction and control of a liquidating
trustee as requested herein, that the liquidating trustee be directed to wind up the affairs of the
Company in an orderly, prudent and expeditious manner, make adequate provision for the
discharge of all the Company's debts, obligations and liabilities, and thereafter distribute any
remaining assets to the Members as appropriate.
SAIDIS, SULLIVAN & ROGERS
10 V-/-\ `i BY
Daniel L. Sullivan, Esquire
Attorney I.D. PA 34548
John A. Feichtel
Attorney I.D. PA 77426
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Email: dsullivan@ssr-attorneys.com
Attorneys for John Royal
9
VERIFICATION
I, John Royal, hereby state that the facts set forth in the foregoing document are true and
correct to the best of my personal knowledge or information and belief. I am aware that false
statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn
falsification to authorities.
II I ,
Royal
CERTIFICATE OF SERVICE
AND NOW, 0 cA0a 31)k 14, I, Daniel L. Sullivan, Esquire, hereby certify that I
did serve a true and correct copy of the foregoing document upon all counsel of record and
interested parties by depositing, or causing to be deposited, same in the U.S. mail, postage
prepaid, at Carlisle, Pennsylvania, addressed as follows:
Samuel L. Andes, Esq.
525 North 12`h Street
P. O. Box 168
Lemoyne, PA 17043-1213
John Adams Investments, LLC
115 Bryce Road
Camp Hill, PA 17011-1303
SAIDIS, SULLIVAN & ROGERS
By
Daniel L. Sullivan
Attorney I.D. #34548
John A. Feichtel
Attorney I.D. #77426
26 West High Street
Carlisle, PA 17013
Phone: (717) 243-6222
Email: dsullivan@ssr-attorneys.com
Attorneys for John Royal
1. zV
r
i' `i?'=
ADAM C. ABRAM and SUSAN A.
ABRAM, his wife
Plaintiffs
vs.
LH—= ij?da'l
' L
COUUY
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
NO. 14-2182 CIVIL TERM
JOHN ADAMS INVESTMENTS, LLC, CIVIL ACTION - LAW
Defendant
and
JOHN ROYAL,
Intervener
PLAINTIFF'S REPLY TO THE ANSWER WITH NEW MATTER, COUNTERCLAIM
AND NEW MATTER CROSS-CLAIM FILED BY THE INTERVENER JOHN ROYAL
AND NOW come the above-named Plaintiffs by their attorney, Samuel L. Andes, and
make the following Answer to the pleadings of the Intervener John Royal:
NEW MATTER
9. Denied. Plaintiffs have reported accurately all repayments they received from the
Company. Plaintiffs have provided fully information regarding those repayments to Mr.
Royal's counsel and have answered their questions regarding those repayments.
10. Denied. There were no conditions regarding repayment that prevent repayment
from occurring at the present time. Plaintiffs are owed the money and are entitled to a judgment
to secure repayment of those funds.
11. Denied. None of Plaintiffs' claims for repayment are barred by any applicable
statute of limitations or by the doctrine of laches.
WHEREFORE, Plaintiffs demand judgment against the Company in accordance with
their original Complaint.
COUNTERCLAIM AND NEW MATTER CROSS-CLAIM
12. Denied. John Royal never fulfilled his requirements or performed his obligations to
Adam Abram or to the LLC to become a 50% owner of the Company. By way of further
answer, however, Plaintiff states that Adam Abram was induced to enter into the formation of
the LLC and the real estate venture pursued by the LLC by the active fraud of Intervener John
Royal. Plaintiffs incorporate, herein by reference, the averments set forth in their Complaint
against Mr. Royal filed before this court to No. 14-5728.
13. Denied for the reasons set forth in the Answer to Paragraph 12 above, the averments
of which are incorporated herein by reference.
14. Admitted. Plaintiffs incorporate herein by reference the averments set forth in their
Answer to Paragraph 12 above.
15. It is admitted that the operating agreement so states but it is denied that John Royal
ever fulfilled his obligations and the requirements of the agreement between the parties to make
him a 50% owner or an equal manager of the company. Plaintiffs incorporate herein by
reference the averments set forth in their Answer to Paragraph 12 above.
16. Admitted. Plaintiffs incorporate herein by reference the averments set forth in their
Answer to Paragraph 12 above.
17. Admitted. By way of further answer, Plaintiffs state that Intervener John Royal has
effectively withdrawn from efforts to manage or to contribute to the management or operation of
the Company. Further, Plaintiffs state that John Royal has engaged in an active and continuing
course of fraudulent conduct intended to benefit John Royal financially to the detriment of both
Plaintiffs and the Company. The averments set forth in Plaintiffs' Complaint filed to No. 14-
5728 before this court are incorporated herein by reference.
18. Denied. At a special meeting of the members of the Company, held on 10 December
2013, John Royal agreed that Adam Abram would handle the company books and records and
receive the monthly tenant rents. By doing so, Royal agreed that Adam Abram would control
the operation of the Company. Moreover, as Plaintiffs discovered the extent of John Royal's
fraudulent conduct, and the detriment effect of that conduct upon the LLC, Plaintiffs assumed
additional responsibilities regarding the operation of the Company to prevent further loss or
damage to the Company, or its assets.
19. Admitted. By way of further answer, however, Plaintiffs state that locks were
changed on several of the properties only after Mr. Royal ceased performing any duties with
regard to the properties, after Plaintiffs learned of Royal's fraudulent conduct and the damages
that that fraudulent conduct has caused the Company, and after items of personal property
disappeared from the properties to which Royal had access.
20. Denied. Any accusations made against Royal by Plaintiffs are supported by the facts
and are accurate accusations. Plaintiffs deny that they have made any such accusations "without
basis."
21. Denied. Plaintiffs have assumed responsibility for the operation of the Company
only with the express consent of John Royal, as established at the meeting on 10 December
2013. Moreover, Royal abandoned his responsibilities and duties toward the Company and
engaged in a continuing course of fraudulent conduct which injured the Company and Plaintiffs.
Royal made it clear, by his conduct, that he would not cooperate with Plaintiffs to properly
operate the Company. Plaintiffs have not repeatedly refused to provide information to Royal
but, to the contrary, have provided extensive financial information to him. Plaintiffs have not
taken any action contrary to Royal's proper interest in the Company or in its business.
22. Denied as stated. Plaintiffs advised Royal, through their respective attorneys, that
all communications regarding the Company should come through their attorneys. They issued
that instruction only after Royal had harassed them, both directly and through third parties, by
having persons contact Plaintiffs at their home at inconvenient times. The actions by Plaintiffs
were designed and intended to reduce the friction between Plaintiffs and Royal.
23. Denied. Plaintiffs commenced this action only after requesting that Royal
acknowledge Plaintiffs' claims to be valid debts owed by the Company and to take some
reasonable steps to secure Plaintiffs' interest in having these debts collected. Royal was fully
aware of Plaintiffs' claims and had been provided information about those claims but had
refused to acknowledge it or deal with Plaintiffs' claims against the Company.
24. Admitted. By way of further answer, Plaintiffs state that Royal was aware of the
claim of Susan Abram for the services she had provided and had refused to respond to that claim
or to acknowledge the debt which the Company owed her.
25. Admitted. However, Royal was aware of Plaintiffs' claim and their intention to take
some reasonable action to secure their claim. Plaintiffs' attorney promptly notified Royal's
attorney once the actions were commenced.
26. Admitted.
27. Admitted.
28. Admitted. Plaintiffs state that their attorney promptly notified Royal's attorney of
the actions they had taken to secure the debts they were owed and certainly did so in time for
Royal to take whatever action he chose to take to protect his interests in the matter.
29. Denied. Plaintiffs have provided Royal and his attorneys with extensive
information about the financial operations of the Company. They stopped providing him with
regular reports as they discovered the fraud he had perpetrated upon them and upon the
Company, both in his efforts to induce Adam Abram to enter into the real estate project and in
his management and mismanagement of the assets of the Company. Even after discovering
Royal's fraud, Plaintiffs have continued to supply financial information to Royal through the
parties' attorneys.
30. Denied. John Royal, by his fraudulent conduct and his mismanagement and
usurpation of the Company's assets, has forfeited his right to actively participate in the
management of the Company. Royal expressly consented to Adam Abram's operation of the
business and control of its finances. Royal now seeks to reclaim some measure of control over
the Company only for the purpose of frustrating Plaintiffs' right to be repaid the money which
Royal fraudulently induced them to loan to the Company.
31. Admitted in part and denied in part. It is admitted that the relationship between
Plaintiffs and John Royal is characterized now by a lack of trust. It is denied, however, that
there is no accountability or communication which prevent the operation of the Company. John
Royal has demonstrated, by his conduct, his fraudulent intent to take advantage of the Company
and operate it and its assets to his sole benefit. As a result, Plaintiffs have taken reasonable
action to preserve and protect the assets of the Company so it can continue to operate.
32. Denied. The appointment of a liquidating trustee at this point will only further
reduce the assets of the Company which are already inadequate, under the present circumstances,
to pay the operating expenses and debts of the Company.
COUNT I — ACCOUNTING
33. No answer required. To the extent an answer is appropriate, Plaintiffs incorporate
herein the averments set forth in Paragraphs 22 through 32 above.
34. Denied. Plaintiffs have provided information to Royal, through their attorney.
Moreover, Plaintiffs have provided information to the accountant for the Company which
information is available to Mr. Royal anytime he chooses to consult with the accountant.
35. Denied. Plaintiffs have provided Royal's attorneys with extensive information
about the funds Plaintiffs loaned to the Company and the expenditures of those funds for various
activities of the Company. Moreover, during the time that many of these funds were advanced to
the Company, Royal received the funds and disbursed them himself on behalf of the Company.
Plaintiffs have provided Royal and his attorneys with information about the income, expenses,
and assets and liabilities of the Company.
WHEREFORE, Plaintiffs pray this court to dismiss Royal's demand for an accounting
and direct him to review the information previously provided and, at his expense, consult with
the Company's accountant to obtain any additional information he requests.
COUNT II — DISSOLUTION
36. No answer required. To the extent an answer is appropriate, Plaintiffs incorporate
herein the averments set forth in Paragraphs 22 through 32 above
37. Admitted.
38. Denied. John Royal never fulfilled his obligations toward the Company and the
requirements for him to become a 50% owner of the Company and, therefore, he never became a
50% owner.
39. Denied. The actions of the Plaintiffs in this matter have been forced upon them by
Royal's fraudulent conduct, his mismanagement of the Company and its assets, and his attempts
to divert all benefit of the Company to him alone. Plaintiffs have been forced to take action to
protect the Company and its assets and, as a result, only through their efforts has the company
been able to continue its business in a lawful and appropriate manner.
40. Admitted. The breach in the relationship between Adam Abram and John Royal is,
however, a result of John Royal's fraudulent and illegal conduct. While it is admitted that it is
not likely that the two owners cannot cooperate in the future to operate the company, Plaintiffs
aver that such cooperation is not in the best interest of the Company considering John Royal's
conduct up to now.
41. Denied. Plaintiffs took their action against the Company to preserve their interest in
the funds which they loaned to the Company, only after John Royal refused to acknowledge
those loans or discuss any arrangements for repayment of them. In fact, to this day, John Royal
has not acknowledged these to be loans or cash contributions to the Company, but has avoided
any acknowledgment of the funds advanced to the Company by Plaintiffs, either as loans for
capital contributions to the Company. Plaintiffs did not take their action in an effort to leave the
Company powerless to defend itself To the contrary, they advised Royal's attorney once the
action was filed so that Royal could take whatever action he deemed appropriate to protect his
interest in the Company. Adam Abram has not threatened the best interest of the Company but
has only taken action to confine the balance owed Plaintiffs for the loans they made to the
Company.
42. Denied. Adam Abram assumed management of the Company only with the express
consent of John Royal, as given at the meeting of the members of the Company in December of
2013. Adam Abram has not engaged in a unlawful attempt to unilaterally seize control of all
management of the Company, has not refused to provide information regarding Company
management to Royal, has provided specific information regarding the loans which are the
subject of this action and the expenditures of the funds loaned to the Company, his actions are
not in derogation of the Operating Agreement of the Company or in violation of any fiduciary
duty he owes to Royal or to the Company. Plaintiffs did not commence this action without
notice to John Royal, did not file this action under circumstances designed to assure that the
Company could not defend itself. Plaintiffs have taken action in the clear best interest of the
Company, particularly considering the fraudulent conduct of John Royal described in the action
filed by Plaintiffs against him to No. 14-5728, the averments of which are incorporated herein by
reference. As a result, it is not necessary or appropriate that the affairs of the Company be
placed temporary in the control of a court appointed liquidating trustee for purposes of
dissolution and liquidation.
43. Denied. The best course of action for the Company is to permit Plaintiffs, who have
invested enormous amounts of money in the Company through their loans, and who are
competent to manage the Company, to allow thein to do so and to exclude John Royal, from
management of the Company because of his fraudulent conduct toward Plaintiffs and the
Company and his gross mismanagement of the Company and its assets. Allowing Plaintiffs to
continue to operate the company will give it the opportunity to financially rehabilitate itself so
that its debts can be paid and its other obligations met. Dissolving the Company at this point
will only cause significant loss to all parties involved, including banks and other creditors of the
Company.
WHEREFORE, Plaintiffs respectfully request that this court deny the request of John
Royal to dissolve the Company, to appoint a liquidating trustee, or to require Plaintiffs to file a
formal accounting, especially in light of the information Plaintiffs have already provided to
Royal and to the accountant for the Company.
. Andes
Attorney for Plaintiffs
Supreme Court ID # 17225
1 verify that the statements made in this document are true and correct. 1 understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities).
Date:
ADAM C. ABRAM
I verify that the statements made in this document are true and correct. I understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities).
Date: 162/ ay ll y
CERTIFICATE OF SERVICE
I hereby certify that I served an original of the foregoing document upon counsel herein
by regular mail, postage prepaid, addressed as follows:
Daniel L. Sullivan, Esquire
John A. Feichtel, Esquire
26 West High Street
Carlisle, PA 17013
Date: (01a81t4
Amy ,� arkins
ecretary for Samuel L. Andes