HomeMy WebLinkAbout06-5316
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ELWOOD A. ALTMEYER, JR.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. tJrf;' 53/t, ~
v.
L YN L. HOLLINGER, BALHA FOOD : CIVIL ACTION - IN LAW AND EQUITY
SERVICES, LLC and BALHA PROPERTY:
MANAGEMENT, LLC,
Defendants
NOTICE
YOU HA VB 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGmLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013-3308
(717) 249-3166
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ELWOOD A. ALTMEYER, JR.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. 04J,j3/(' ~ 7::'"
v.
L YN L. HOLLINGER, BALHA FOOD : CIVIL ACTION - IN LAW AND EQUITY
SERVICES, LLC and BALHA PROPERTY:
MANAGEMENT, LLC,
Defendants
COMPLAINT
AND NOW, comes the Plaintiff, Elwood A. Altmeyer, Jr., by and through his attorneys,
Mark K. Emery, Esquire and Robert C. May, Esquire, and files this Complaint, as follows:
l. Plaintiff, Elwood A. Altmeyer, Jr., (hereinafter Altmeyer) is an adult individual with a
residence of3513 Beech Run Lane, Mechanicsburg, Pennsylvania 17050.
2. Defendant, Lyn L. Hollinger, (hereinafter "Hollinger") is an adult individual with a
residence of 6212 Spring Knoll Drive, Harrisburg, Pennsylvania 171l1.
3. Defendant BALHA Food Services, LLC, (hereinafter "BALHA Food") is a Pennsylvania
Limited Liability Company with a principal place of business of710 West Main Street
Mechanicsburg, Pennsylvania 17055.
4. Defendant BALHA Property Management, LLC, (hereinafter "BALHA Property") is a
Pennsylvania Limited Liability Company with a principal place of business of710 West
Main Street Mechanicsburg, Pennsylvania 17055.
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5. BALHA Property owns the property located at 710 West Main Street, Mechanicsburg.
6. BALHA Food owns and operates a restaurant located at the above stated property,
known as Scottie's Beef & Reef Restaurant & Lounge.
7. BALHA Property and BALHA Food are subject to control of and by Operating
Agreements, attached and incorporated herein as Exhibits "A" and "B" respectfully.
8. Pursuant to the Operating Agreements, Hollinger was nominated as the Manager of both
LLC's.
9. Hollinger owns fifty-five percent (55%) ofBALHA Food and Altmeyer the remaining
forty-five percent (45%) ofBALHAFood.
10. Hollinger owns fifty-five percent (55%) ofBALHA Property and Altmeyer owned the
remaining forty-five percent (45%) ofBALHA Property.
II. Of the initial capital contributed to BALHA Food, Altmeyer provided $85,112 and
Hollinger provided $0. Despite providing no actual contribution, Hollinger was credited
with proving $10,000.00 of the total actually contributed by Altmeyer
l2. Of the initial capital contributed to BALHA Property, Altmeyer provided $140,000.00 and
Hollinger provided $0. Despite providing no actual contribution, Hollinger was credited
with a capital contribution $10,000.00 of the total actually contributed by Altmeyer
13. Currently, and from the commencement of operations, BALHA Food has not generated a
monthly profit, and has been unable to pay its bills and expenses as they accrue.
14. BALHA food has not been able to make rent payments to BALHA Property, which is
BALHA Property's sole source of income.
15. Since the inception of the companies, Altmeyer has had to place his personal funds, as a
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loan to both BALHA Food and BALHA Property, in order for the companies to pay their
bills and expenses as they come due.
16. Pursuant to paragraph 6.03(3) of the Operating Agreements, the Manager is to call an
annual meeting no later than 13 months subsequent to the date of organization, at which
such time the election of the Manager will occur, along with all other proper business..
17. As the date of organization was July 7, 2005, the annual meeting was to be called by
Hollinger by no later than August 7, 2006.
18. Hollinger failed to fulfill her duty as Manager to call the first annual meeting, at which
time a vote could have been taken to appoint a Manager.
19. Pursuant to paragraph 5.04 of the Operating Agreements, "[a] Manager can be removed
with or without cause at any meeting of Members expressly called for that purpose where
forty-five percent (45%) of the outstanding Units which voted in the elected (sic) voted
for removal of the Manager".
20. On August 10,2006. Altmeyer, in accordance with paragraph 6.02 of the Operating
Agreements, took action by written consent and removed Hollinger as Manager of both
LLC's.
21. Subsequent to the date Hollinger was removed as Manager of the LLC's, Hollinger
commenced negotiations to sell and/or lease the LLC's to a third party in contravention of
the Operating Agreement and in breech of her fiduciary duty as a member of the LLC' s.
22. Since the date of Hollinger's removal as Manager, the LLC's continued to lose money and
Altmeyer has had to provide additional loans and capital to the companies in order for
them to operate.
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23. Despite the financial condition of the companies, including not having sufficient funds to
pay business expenses as they come due, on August 22, 2006 Hollinger withdrew funds
from BALHA Foods account as a salary.
24. Pursuant to paragraph 6.10 of the Operating Agreements, only the Manager may approve
compensation to a Member for services performed for the companies.
25. Currently, neither LLC has an appointed Manager, in contravention of their Operating
Agreement.
26. Pursuant of paragraph 5.02 of the LLC's Operating Agreements, a Manager may be
elected by a vote of fifty-six percent (56%) of the outstanding units.
27. Due to the way the percentage interest has been distributed between Hollinger and
Altmeyer, and the dispute between the two members, the members are incapable of voting
for a Manager, and the LLC's will remain without a Manager.
28. The current operation of the companies without a Manager is not in conformity with the
companies Operating Agreements.
29. On September 5,2006 Altmeyer attempted to call an annual meeting for both LLC's by
providing a written notice of such meeting, to be held on September 7,2006.
30. The purpose of such meeting was to attempt to elect a manager so that the companies
could be operated in accordance with their Operating Agreements.
3l. By letter dated September 6, 2006, Hollinger, through her counsel, refused to attend such
meeting, and took the position that no meeting could be properly called in the future.
32. In addition to refusing to attend a meeting of the Members in order to conduct business,
Hollinger further threatened litigation unless Altmeyer paid her $125,000.00 for her
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interest in the LLCs.
33. Based upon Hollinger's actions, there is no ability for the companies to appoint a manager
in the immediate future, thereby leaving the companies deadlocked and operating outside
the terms of their Operating Agreements.
COUNT I
JUDICIAL DISSOLUTION PURSUANT TO 15 Pa. C.S.A. 68972
34. Paragraphs 1 through 33 are incorporated fully herein by reference.
35. Based upon the forgoing, Altmeyer believes and therefore avers that it is not reasonably
practical to carry on either of the businesses in conformity with the Operating Agreement
and therefor requests a Judicial Dissolution pursuant to 15 Pa. C.S.A. ~8971.
WHEREFORE, Plaintiff respectfully request this Court order the Judicial Dissolution of
both LLC's in accordance with the Limited Liability Law of 1994, 15 Pa. C.S.A. ~8901 at et. seq.
COUNT n
ACCOUNTING
36. Paragraphs 1 through 35 are incorporated fully herein by reference.
37. Based upon the above, Plaintiff requests an accounting be ordered as part of the judicial
dissolution.
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WHEREFORE, Plaintiff respectfully requests this Court order an accounting as part of the
judicial dissolution.
Respectfully submitted,
LAW OFFICES OF MARK K. EMERY
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By: _____
, Mark K. mery, Esquire
Supreme Court J.D. No. 72787
410 North Second Street
Harrisburg, P A l71 0 1
(7l7) 238-9883
DATE: September l2, 2006
THE LAW FIRM OF MAY & MAY, P.C.
Robert C. May, Esquire
Identification No.: 65602
4330 Carlisle Pike
Camp Hill, Pennsylvania 1701l
(717) 612-0102
Attorneys for Plaintiff
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OPERATING AGREEMENT OF
BALHA PROPERTY MANAGEMENT, LLC
REcrtALS
WHEREAS, BALHA Property Management, LLC (the "Company") was
organized on July 7, 2005 as a Pennsylvania limited liability company by filing a
certificate 'of organization with the Corporation Bureau, Department of State,
Commonwealth of Pennsylvania under and pursuant to the Pennsylvania Limited
Liability Company Law of 1994; and '
NOW, TIlEREFORE, the members of the, Company hereby enter into the
Operating Agreement of BALHA Property Management, LLC as follows:
ARTICLE I - DEFINITIONS
, .1.01.. Definitions.
In addition to terms defined in otherprovisioDS oftbis Agreement and any annexes
, or exhibits thereto, the following terms have Ithe following meanings set forth
, below unless the context requires otherwise:
"Act" means the Pennsylvania Limited Liability Company law of 1994, 15 Pa.C.S.
~8901 et seq., and any successor statute, as amended' from time to time.
"Agreement" means this operating agreement" as amended, modified,
supplemented or restated from time to time.
"Capital Account" means'the individual account maintained by the Company with
respect to each Member as provided in Appendix A.
"Capital Contribution" means the aggregate amount of cash and agreed value of
any property or services (as determined bytlie Member and the Company)
, contributed by each Member to the Company as provided by Section 4.01. In the
case of a Member that acquires Units by assignment ()t transfer in accordance with
the teons of this Agreement, "Capital Contribution" means the CaPital
Contribution of that Member's predecessor proportionate to the acquired Units.
"Certificate" means the certificate of organization of the Company and any and all '
, amendments thereto and restatements thereof filed on behalf of the Company with
the Corporation Bureau, Department of State, Commonwealth of Pennsylvania 'in
accordance with the Act.
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"Code" means the. Internal ReveDue Code of 1986, as amended and any successor
statute tllereto.
"Company" means BALHA Property Management, LLC, a Pennsylvania limited
liabil~ty company.
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"Manager" means a person serving as a manager of the Company as provided in
this Agreement. .
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"Member" means a person who at the time is a record holder or record owneft of
Units.
"Membership'Interest" means the interest of a Member in the Company, includiDg,
without limitation, interests in Profits and Losses,. rights to distributions
. (liquidating or otherwise ), allocatio~ information; and to consent to or apprpve
actions by ~e Company, all in accordance with the provisions of this ~ent
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"Percen~ge Interest" meanS the nmnber of Common Units held a particular time .
by a Member, divided by the nmnber of Common Units then held by all Mem~
expressed as, a percentage. .
$'PersOn'; means a natural person, corporation,. general or limited partnership,
limited liability cOmpany, joint venture, trust, estate, association or other legal
entity or organization.
"Profits and Losses" mean, for each taxable year or other period, an: amoUilt equ81 .
to the Company's taxable income or loss for that year or period, determined' in
accordance with COde section 703(a).
"Treasury Regulations". or "Treas. Regs." means the income tax regulations,
including temporary regUlations and guidance promu18ated under the Code, as
those regulations and' guidance may be . amended from time to time, including
corresponding provisions of succ~g regulations or guidance.
"Units" see sectioIl3.02.
ARTICLE n - ORGANIZA nON
2.01 Principal Place of Business; Other Offices.
The principal place of business of the Company shall be 6212 Spring Knoll Drive,
Harrisbur~ Pennsylvania 17111 or at such other place as the Manager may
designate froni time to time, which need not be in the Commonwealth of.
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PeDnsylvania The Company may have- such other offices as the Manager may
designate from time to time. .
2.02 Purpose.
The purpose of the Company is to engage in any lawful act or activity for which
limited liability companies orgairized under the Act may engage and to do. all
lawful activities necessary, convenient, desirable or incidental to the foregoing.
2.03 Incorporation.
Upon the approval of the Manager of a plan to incoIpOrate the Company ma
transaction that qualifies under section 351 of the Code and that maintains the
relative rights and preferences of the Units (the "Section 351 Ti'ansaction"), the Units
held by each Member shall be converted into, or exchanged for, shares of the
cOIpOration formed for that purpose, by merger or otherwise, or the Company shall
file an election with the Internal Revenue Service to be classified as a corporation for
federal income tax purposes. A Member shall not have any veto power or other
voting power with respect to incoIpOration of the .Company as provided in this
section, and each Member shall take all actions necessary or desirable in connection
with the conswnmation.ofthe Section 351 Transaction. The Company shall pay all
of the organizational, legal and accounting expenses and filing fees incurred in
connection with the Section 351 Transaction. In connection with .the Section 351
Transaction, each Unit shall be converted auto$atica1ly into COnimon shares (the
"Common Shares")~ The Common Shares shalt have the same rights, privileges,
preferences and obligations as. the Units immediately after the Section 351
Transaction.
ARTICLE III - MEMBERSHIP INTERESTS
3.01 Inidal and SubsequeDtMemben.
The Members of the Company are the P~ns listed in Annex A. A Person who
is not already a Member and who acquires a previously outstanding Unit or Units
in accordance with this Agreement automatically shall be admitted as a Member.
Other Persons may be admitted as . Members from time to time upon the issuance
to them of a Unit or Units on such tenns as are fixed by the Manager. It shall not
be necessary for Personswbo are admitted subsequently as Members or who
acquire any or all of an existing Member's Units to execute this Agreement. either
by counterpart or amendment. When any Person is' admitted as a Member or
ceases'to be a Member, the Manager shall prepare a revised version of Anncx' A
and distribute it to all Members.
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3.02 Authorized Membership Interests. .
The. aggregate Membership Interest in the Company shall be divided into such
number of Units as may be issued and outstanding at the time. Except as
proVided in the tenns of an outstanding class or series ofUmts, the Manager shall
have the authority to amend this Agreement, without action by the Members, to
create new ((lasses or series of Units~ having such designations, voting. rights,
preferences, limitations, special rights and other terms and consisting of such
number of Units' as the Manager shall provide in the amendment.
3.03 Record Holder of Units. .
The Company shall be entitled to treat the Person in whose name any Units of the
Company stand on the books of the Company as the absolute owner thereof, and
as a Member of the Company holding the Membership Interest evidenced by
. those Units. The Company shall not be bound to recognize any equitable or otper
claim to, o~ interest in, such Unit or Units on the part of any other Person, whether
or not the Company has express or other notice of any such claim. ,
3.04 . Transf~r of Units. .
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(a) No-Transfer without .consent of Manaeer. A Member who desires to
transfer his Units in the Company may do so only in compliance with this .
Agr~ent and upon consent of the Manager and other members who, in .
his or their sole discretion, mayor may not grant his consent. In this
regard; the Member requesting the Manager's and other Member's
consent for a transfer of his Units must provide the Manager and other
Member's with copies of all instruments and documents. to be used to
effect the transfer. The requesting Member must transmit the request for
consent and the accompanyiIig documents to the Manager at least sixty
(60) days before the proposed transfer date. The requesting Member must
furnish promptly any information requested by the Manager, including
information on the proposed transferee. The. Member transferring his
Units must payor obligate himself to pay all reasonable expenses incmred.
by the Company in connection with the 1raDsfer ofbis Units. Approval of
other Members to the transfer of a Member's Units in the Company shall
not be required.
(b) No Transfer if it has Adverse Leila) Effect-No Member may transfer.
Units in the Company if the Manager determines in his sole discretion that
the transfer, alone or combined with other transactions, would jeopardize
. the status of the Company as a limited liability company under state or
federal law or violate any restriction on transfer and resale of the Units
under applicable state or federal securities laws.
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· (c) Right of First Refusal. In addition to the requirements of Section 3.04{a),
if a Member desires to sell "or assign all or part of his Units, he shall first
offer the same, in writing addressed to the Manager, on the same terms
and conditions being offered to a third party, to" the Company. The
Manager shall have thirty (30) days from receipt of such offer to accept or
reject the offer. If the Managei' accepts the offer, the selling Member shall
sell and the Manager shall purchase the Units offered and the" Member
must accept imposition of the terms of Section 3.04(d) if the Manager, in
bis sole discretion, imposes sUch tenns. " The Manager, in his sole
" discretion, shall determine whether the purchase is made" personally for
his on account or on behalf of the Company for its account. If the
Manager rejects the offer, the Member shall be free, subject to receipt of
the Manager's consent as required by Section 3.04(a) and compliance
"" with all other provisions of this Agreement, to sell Or assign his Units on
the same terms and conditions to the third party who made said offer and
the third party shall become a Member of the Company. If the sale or
assignment to the third party is made on any terms different from those
originally proffered to the Manager by the Member, the sale or "
assignment shall be null and void.
(d) Buyout Terms." fu purchasing Units from a Member pursuant to Section
3.04(c), the Manager, in his sole discretion, may purchase and take title to
the Units, either personally" or on behalf of the Company, in return from
the Member receiving a cash paymelnt of 20" percent (200.10) of' the
purchase price ("Cash Payment'') ~ a promissory note from the
Manager or the Company obligating the Manager or the Company to pay
the remaining 80 percent (800/o) of the purchase price in five annual
, installments, such period to commence 12 months from the date ,of the
Cash Payment with intereSt imputed at an annual rate of the Prime Rate as
published in the Wall Street Journal as of the business day immediately
preceding the date the Cash Payment is made.
(e) Option to RepurChase upon Death. By purchasing Units in the Company,'
the Member agrees that upon his death of said Member, his estate sbal1
sell his Units back to the Company on the terms set forth in Section
3.04(d) and the Company agrees that it shall buy such Units on those
terms. If it so desires and shall give notice to the Estate of the' deceased
member Within ninety (90) days of the date of his or her death. By
purchasing Units in the Company, the Member agrees that all the
provisions, terms and conditions in this Agreement are binding on his
heirs, assigns and representatives. If no notice is given then the interests
shall pass to the heirs of devisees of the deceased member ;,md those
'individuals agree that all the provisions, terms and conditions in this
Agreement are binding on himlher or them.
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. '(f) No Alienation bvDivorce. If a Meinber origfually purchases Units in his
own name, he agrees, by purchasing Units in the Company,.that the Units
. thereafter shall not be transferred to any current or future spouse whether
or not such transfer is made in connection with a settlement of marital
property in a divorce proceeding.
(g) Capital Account of Transferee. Upon the trarisfer of Units made in
accordance with. this Agreemen~ the transferee shall succeed to .the
corresponding portion of the Capital Account of the transferor. '
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(h) Purchase Price. If the Company elects. to purchase the withdrawihg
Member's interest, the purchase price (the "Price") shall be fifty perCent
(50%) of the value of the Company, regardless of the .withdrawing
. MeJi1ber's ownership interest in the Company. . In the event that the
Members . cannot mutually agree to the value. of the Company each
Member shall choose a certified appraiser to value all Company ~
as ~ whole. This includes but is not limited to the real estate owned by the
Company and the restaurant and its assets owned by BALHA FQod
S~ces, LLC. It is the intent that the business as a whole shall' be
,appraised and the purchase price shall be the fair market value of the
Company and BAUIA Food Services, LLC minus all liabilities. The
appraisals shall be averaged and liabilities of the Company shall be
deducted from that average. All costs associated with each appraiser or
.appraiSal shall be bome by each Member individually. In the event that
the appraisals for the total value of the Company's assets differ by greater
than twenty (200.10) percent of each other, then the Members shall agree on
a third independent certified appraiser to appraise all Company property
as a whole. Said appraisal shall conclusively determine the value of the
Company minus the C~mpany's liabilities.. The cost for tbisappraiser and
appraisal shall be bome by. the Company. The settlement for such
purchase shall be l1eld at.the Company's principal office at 10:00 o'clock
AM. on the sixtieth (60th) day after the date on which written notice .of
the election to pUrchase was given, and ifnot ablisiness day, then on the
business day next following, or at such earlier time or other place as the
withdrawing Member and the Company may mutually agree, at which
settlement:
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(i) the Company shall:
(a) make by certified check, bank cashier's check or other
casb-equivalent satisfactory to the withdrawing Member, or hislber
legal representatives, as the case may be, an initial down payment
in an amount equal to not less than twenty percent (200,4) of the
Price, and
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(b) execute and deliver. to and in favor of the withdrawing
Member, or bis/herlegal representatives,. as the case may be, a
promissory note for the remaining balance of the Price, together
with interest thereon at a rate equal to the "applicable federal rate"
.in effect as.ofthe date hereofunder Section 1274(d). of the Internal
Revenue Code of 1986, compounded annually, in sixty (60)
monthly installments commencing on the. first day of the second
calendar month following such settlement and continuing
thereafter on the first day of each of the succeeding fifty-nine (59)
consecutive .calendar months, with the right to make prepayment
thereof in whole or in part at. any time or times without premium,
. penalty or charge; and
(ii) . the withdrawing Member shall execute, acknowledge and deliver
to the Company written instruments of transfer arid assignment of hislher
Company interest, in such fonn, containiJig such terms and in ..favor of
such persons as may be prescnDed by or satisfactory to the Company,
whereby the withdrawing Partner's entire Partnership interest, and all .
right, title and interest therein and thereto, is assigned and transferred to
Partnership or its designees. Membership Interests cOnstitute the personal
estate of Members and may be transferred or assigned. If all of the other
Members of the Company other than the Member proposing to dispose of
his or her interest do not approve of the proposed transfer or assignment
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by unanimous written consent, the transferee of the interest of the Member
shall have. no right to participate in thd management of the business and
affairs of the Company or to become a Member. The transferee shall only
be entitled to receive the distributions and the retmn of contributions to
which that Member would otherwise be entitled.
AssigumeBt or UBits
(a) Assignment in Contravention of A2reCD1ent are Null and Void.. Any
attempted assignlnent of Units or any part thereof which is not in
compliance with this Agreement shall be null and void. Notwithstanding
anything in this.Agreement to the contrary, the Company and the Manager
shall be entitled to continue to treat the assignor of Units as the absolute
. owner of such Units. Accordingly, the Company and Manager shall incur
no liability for distributions of cash or other property made in good faith to
such assignor \B1til such time as it receives. the written assignmen~ has
record cd such assignment on the Company's books and records and such
assignment becomes effective in accordance with the terms of this
Agreement. No assignment of Units, even is sUch assignment causes the
.substitution of the assignee as a Member, shall release the assignor from.
those liabilities to the Company that survive the assignment
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(b }Consent No. consent of other Members shall be required to effect the
assignment. The prior consent of the Manager is required but shall be
withheld only if he has determined, in his sole discretion, that. the
assignment would adversely affect the Company's status as a limited
liability company under state or federal law or violate any restrictions on
transfer and resale of the Units under applicable state or federal securities
laws.. In this regard, the Member requesting the Manager's consent for an
. assignment must provide the Manager with copies of all instnunentsand
documents to be used to effect the assignment. The requesting 'Member
must tiansinit the request for consent and the accompanying documents to
the Manager at least sixty (60) days befo~the proposed assignment dttte.
The requesting Member must furnish promptly any information requested
by the Manager, including information on the proposed assignee. The
Member assigning his Units must payor obligate himself to pay all
reasonable expenses incurred by the .Company . in connection with the
assignment of any ofms Units.
. (c) Intention of Assi~or.. The Member who assigns his Units must evidejJce
his, intention that the assignee be admitted as a Member in his place, .
~xecute any instruments required to accomplish the asSignment, and effect .
. the assignment in compliance with the tenns prescribed in this.Agreement
(d) Rights of Assi2llees. The assignee of a Unit shall become a Member and
. shall have the same rights as other Members, including the right to receive.
distributions, retmns of capital and allocations of net profits and tosses
attributable to the Units.
(e) Involuntary Assi!DlIJlents. If a Member's Units are taken or distributed by
levy, foreclosure, charging ortier, execution or similar proceeding, the
Company shall not dissolve. Instead, the assignee of the Member's Units
only shall be entitled to receive distributions and allocations of profits and .
losses attributable to the Units. Such assignee shall have no right .to
interfere with the management. or administratiOn. of the Company or its
business or affairs and shall have no right to become a Member of the.
Company. .
(f) Tax Liability. The Company shall provide the assignee of a Member's
Units with all relevant information with respect to filing his state and
federal income tax returns. .
3.05 Lack of Authority.
A Member acting individually shall not have the authority or power to act. for or .
on behalf of the Company or otherWise bind the Company in any way.
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3.06' No Right of Partition.
A Member shall not have_ the right to seek or obtain partition by court decree or
operation of law of any Company property, or the right to own or use particular
assets of the Company.
3.07 _ Distribution Upon Dissociation of a Member.
A Member who becomes dissociated from the Company upon the occurrence of
an event described in section 8971(aX4) of the Act shall not bave the right under
section ~933 of the Act to be paid the fair value of the Membership Interest of the
member as a result of the dissociation. -
3.08 Evidence and Transfer of Units.
(a) Evidence. The Units shall be represented by certificates.
(b)
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Transfer Procedure. Transfers of Units shall be made on the Unit register-
of the Company. A transfer of Units represented by a certificate shall be
made upon surrender of the certificate, endorsed ot accompanied by a
stock power executed by the person named in the certificate or by an
attorney lawfully constituted in writing. No transfer shall be made
inconsistent with the provisions of 13 Pa.C.s. div. 8 or ~ther applicable
provisions oflaw. _ \ - - -
Unit Certificates. Unit certificates shall be in such form as approved by
the Manager and shall state that the Company is organized Under the laws
. of the Commonwealth of Pennsylvania, the name of the person to whom
issued, and the number and class of Units and the designation of the series,
if- any, that -the certificate represents. The Unit certificates shall be
nUmbered and registered in the records of the Company as they are issued,
and shall be signed by the Manager.
(d) Legends on Unit Certificates. The Manager shall cause appropriate
legends to be placed on each Unit- Certificate with respect to the
transferability of the Units under the Agreement and any applicable state
- and federal securities laws.
(e) Lost. Destroved or Mutilated Certificates. The bolder of any - Unit
certificate immediately shall notify the Manager of any loss, destruction,
or mutilation of the certificate, and the Manager, in his discretion, may
cause a new certificate to be issued to the bolder in accordan~ with 13
Pa.C.S. ~840S.
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..'It ARTlCLEIV~FINANCIALANDTAXMATIERS
4.01 Capital Contributions.
The. Company shall keep. a record. of the Capital. Contributions made by the
Members. A Member shall not be required to make any capital contribution to
the Company not specifically agreed to in writing between the Member and the
Company or be obligated or required under any circumstances to restore any
negative balanCe in the Meinber's Capital Account. I
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4.02 Return of Contributions.
A Member:'is not entitled to.the return of any part of the Member's Capital
. . .Contribution, or to be paidiIiterest ~ respect of the Member's Capital Aecouqt or
Capital. C~ntribution unless otherwise agreed to by the Parties. An unrepaid
. Capital Contribution is not a liability of the Company or of any Member.j A
Member is not required to contribute or to lend any cash or property to' the.
Comp~y to enable 1he Company to return any Member's Capital Contribution.
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4.03 . Advances by Memben.
A Member may agree, with the consent of the Manager, to loan funds to, or
guaranty obligations of, the Company. A loan to the Company or guaranty of its
obligations by a Member shall not be deemed to be a Capital Contribution of that
Member.
4.04 Capital Accounts.
At all times while there is more than one Member, a Capital Account shall be
established and maintained for eacb Member. . .
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(a) The allocation and eapitalaCcount maintenance provisions of Treasury
Regulations under section. 704 ()f the Code are hereby incorporated by
reference~. including a "qualified income offset" within the meaning of
Tress. Reg. ~1.704-1(bX2XiiXd)~ the roles regarding allocation of "partner
nonrecourse deductions" under Tress. Reg. .fl.704-2(i)(1), "minimum
gain chargeback" under Tress. Reg.il.704(2Xt) and "partner nonrecourse
debt minimum gain cbargeback" under Tress. Reg.; il.704(2)(iX4), and
. the limitation on allocation of losses to any Member that would cause'a
deficit capital. account in excess of such member's capital contribution.
obligations and share of ininimmn gain and partner nomecourse debt
minimum gain under Treas. Reg. ~1.704-1(b)(2)OiiXd) as modified by
Treas. Reg.~~1.704-2(g){1) and 1.704-2(i){5).
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(b) To the extent contributed property has a fair market value at the time of
contribution that differs from the contributing Member's basis in the
property, and to the extent the carrying value of property of the Company
for Capital Account purposes otherwise differs from the Company's basis
in such property, dq)reciation,"gain and loss for Capital Account purposes
shall be computed by reference to such carrying value rather thari such tax
basis. In accordance with section 704(c) of the Code, income, gain, loss
and deduction with respect to such property. shall, solely for tax purposes,
be shared among the Members so as to take account of the variation
between the basis of the property to the Company and its fair market' value
at the time of contribution, or at the time that the carrying value of Such
property is adjusted under Treas. Reg. ~1.704-1(b)(2Xiv)(f), as the case
may be.
(c) During the first 24 months of the Company, any losses, .but not profits,
shall be allocated as follows: ninety-five percent (95%) to Elwood A.
Altmeyer, Jr. and five percent (5%) to Lyn L. Hollinger. After twenty- .
four (24) months all losses and profits shall be 4istributed or allocated in
accordance with the member's percentage of ownership in the Company.
Profits and Losses.
At all times while there is more than one Mtmber, Profits and Losses shall be
allocated to the members in accordance willi Percentage Interests except as
. otherwise provided in section 4.04 oftbe Agreement. .
4.06 Distributions.
Except as otherwise provided in Article vm. (Dissolution,. Liquidatioil and
Termination), the Manager, in his sole discretion, may authorize the Company to
make distributions to Members. However, at a minimum the Manager shall
. . distribute the amolDlt of tax necessary to cover any tax obligation pursuant to the
Coinpany. All distributions, other than liquidating distributions, shall be made to
the Persons shown as holders of record of Units at the time. in proportion to their
Percentage Interests.
4.07. . Est.bUshment of Reserves.
The Manager shall have the right and obligation to establish reasonable reserves
for the maintenance, improvement, acquisition, capital expenditure and other
contingencies, such reserves to be fimded With such portion of the .operating
. revenues of the Company as the Manager may deem necessary or appropriato for
that purpose.
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The Manager shall arrange for the preparation of all tax returns. required to be
filed for the Company. Each Member shall be entitled to receive, upon written
request, copies of all federal, state, and local income tax returns and informational
retUrns, if ~y, which the Company is required to file. All information needed by
the Members or other Persons who were Members during the applicable tax year
for .income tax 'purposes shall be prepared by the' Company's accountants and
furnished to each 'such PerSon after the end of each tax year of the Company. I '
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4.09. TaxElectioDs.
(a) 'Pennitted Elections. To the extent pennitted by applicable tax law, the
Company may make the following elections on the appropriate tax returns:
(1) , To adopt the calendar year as the Company's taxable year. '
(2), To adopt the cash method of accounting and to keep the
Company's books and records on the income-tax method.
0) :
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If a transfer of a Membership Interest as described in section 743
of the Code occurs,. on written request of the transferee, or if a .
, distribution of Company property is made on which gain described
in section 734(b Xl )(A) of the Code is recognized or there is an
'excess of adjusted basis as described in section 734(b)(l)(B) of the
Code, to elect, pursuant to section 754 of the Code, to adjust the
basis of Company properties. "
"
(4) To elect to amortize the organizational expenses of the Company
and the start-up. e:xpenditures of the Company ratably over a period .
of 60 months as permitted by sections 195 and 709(b) of the Code.
(5) , Any other election 'the Manager may deem appropriate and'in the
best interests of the Members. '
. (b) Prohibited Elections. The Company, the Manager or any Member shall
not make. or cause to be made an election that resuhs in the Company
being taxed as a corporation for federal income tax purposes or to be'
excluded from the application of the provisions of subchapter K of chapter '
lof subtitle A of the Code or any similar provisions of applicable state
law, and no provision of this Agreement shall be constnJed to sanction,
approve or ratify such an election.
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4.10 Tax Matten Partner.
4.11
If the Company is subject to the consolidated audit procedures of sections 6221 to
6234 of the Code, the Manager may designate himself or another Member to be
the ~'tax matters partner" of the Company pmsuant to section 623 I (a)(7)of the
Code. Any Member who is designated "tax matters partner" shall take such
action as may be necessary to - cause each other Member to become a "notice
partner" within the meaning of section 6223 of the Code. Any member who is
designated a "tax matters partner" shall inform. each other Member of all
significant matters that cOme to his attention in his capacity as ''tax matters
partner" by giving notice thereof on or before the fifth business day after
becoming aware thereof and, within the time, shall forward to each other Member
copies of all significant- written communications it may receive in that capacity.
The Company shall reimburse the ''tax matters partner" for any costs incmred
representing the interests of the Members in reSpect of Company tax matters.
Tax Withholding.
Unless treated as a Tax Payment Loan, any amount paid by the Company for or
with respect to any - Mem~ on - account of any withholding tax or other tax
payable with respect to the income, profits or distributions of the Company
pursuant to the Code, the Treasury Regulations, or any state or local statute,
regulation or ordinance requiring such paymerlt (each a "Withholding Tax Actj
shall be treated as a distribution to the member Iror all purposes of this Agreement.
. To the extent that the amount required to be remitted by the Company under a
Withholding Tax Act exceeds the amount then otherwise distributable to the
Member, the excess shall constitute a loan from the Company to the member (a
"Tax Payment Loanj. Each TaX Payment Loan shall be payable upon demand
and shall bear interest, from the date that the Company makes the payment to the
relevant taxing authority, at the -applicable federal short-term rate under section
1274(dXl) of the Code, determined-and compounded semiannually. So long as
any Tax Payment Loan or the interest thereon remains unpaid, the Company shall
make future distributions due to the Member under this Agreement by applying
the amount of any such distribution first to the payment of any unpaid interest on
all Tax Payment Loans of the Member ~d then to the repayment of the principal
of all Tax Payment -Loans of the member. The Members shall take all actions
necessary to enable the Company to comply with the provisions of any
Withholding Tax Act applicable to the Company and to carry out the provisions
of this section.
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ARTICLE V.- MANAGEMENT .
5.01 Management by a Manager.
The business and affairs of the Company shall be managed by Lyn L. Hollinger
who is hereby designated as Manager. The Company may act only by actions
taken by, Qr under the direction of, the Manager in accordance with this
Agreement. The Manager and Members win jointly worlc towards the
management, cOnduct, and control of the business 'affairs of the Company. No
Member, other than the Manager, shall have the right or authority to act fOIl or
bind' the Company.' In the event that a Mem~ takes. any. action to bind \the
. Company in.violation of this Agreement, he shall be solely reSponsible for any
loss and expense incurred by th~ . Company as a result of the Member's
unauthorized action and such Member agrees to indemnifY and hold the Company
hannless with respect to such loss or expense. .
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5.03 Officen of the Compoy.
The Company may have such officers, other employees mid agents as 'shall be.
necessary' or. desirable to conduct its business. .The Manager may designate a
Member or any other Person to serve as an officer of the Company. If the title is .
. one commonly used for officers of a business corporation, the assignment of that
title shall constitute the delegation of the authority and duties that normally are
associated with tfmt office, subject to any specific delegation of authority and
duties made by the Manager. The salaries or other compeDSBtion, if any,' ofth~
officers, other employees and agents of the Company shall be fixed nom time to
time by the Members or such other Person to whom the Members have delegated
that authority. In addition to the designation of officers and the enumeration of
their respective duties, the Manager may grant powers of attorney to Persons to
act as agent for or on behalf of. the Company, to do' any act which would be
binding on the Company, to incur any expenditures on behalf of the Company, or
to. execute, deliver and perfonn any agreement, act, 1ransaction or other matter on
belialfof the Company.. Such powers of attorney may be revoked or modified .at
. any time and in any manner deemed necessary by the Manager.
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5.04 Vacancy, Removal and Resignation..
Any vacancy in the position of Manager caused by death, resignation or removal
of the Manager shall be filled by a special meeting of the Members. Election of a
new Manager. must comply with, all terms of this Agreement, including section
5.02. A Manager can be removed 'with or without cause at any meeting of
Members expressly called for that purpose where forty-five percent (45%) of the
outstanding Units which voted in the elected voted for removal of the Manager.
5.05 Compensation and Reimbursement.
A Manager and all Members shall.receive such compensation for his service as
the Members may designate from time to time. The Manager and all Members
also shall be entitled to reimbursement for out-of-pocket expenses incurred in the
course of his service as manager and for bona fide business expenses incmred in
the ordinary course of the Company's business.
5.06 Other Business Opportunities.
Subject to the provisions of this Agreement, the Manager or any Member of the
Company at any time and from time to time may engage in and possess interests
in other business ventures of any and every type and description, independently or
with others, with no obligation to offer the Coq>any or any Member the right to
. " participate therein. . I .
5.07 . Interested Transactions.
A contract or transaction between the Company and the Company;s Manager or
officers or between the Company and another domestic or foreign association in
which the Manager or anofticer has. a management role or financial or other
interestS, shall not be void or voidable S)lely for that reason.
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5.08 Limitation of LiabiUty. .
A Manager shall'not be personally liablc,.8S such, for monetary damages (other
than under criminaI statutes and under federal, state, and local laws imposing
liability on managers for the payment of taxes) for any action taken, or any failure
. to take any action, unless the person's conduct constitutes fraud, self-dealing,
willful misconduct, or gross negligence. No amendment or repeal of this section
shall apply to or have any effect on the liability or alleged liability of any Person
who is or was a Manager of the Company for or with respect to any acts or
omissions of the Manager occurring prior to the effective date of sUch antendment
. or repeal. If the Act is amended to permit a Pennsylvania limited liability.
company to provide greater protection from personal liability for its. managers
than the express terms of this section, this section shall be construed to provide
for such greater protection.
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ARTICLE VI -MEMBERS
6.01 Voting Rights of Members.
The' voting rights of Members shall be'based on the number of outstanding Units
held by each M~ber.
6.02
Action by Members.
I
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Except as otherwise provided in the Act, the Certificate, or this Agree.ulent,
whenever any action is to be taken by vote of the Members, it shall be authorized
upon receiving the affinnative vote of fifty-six percent (56%) of the outstanding
Units held' by Members which voted 'on the action. , Recording the fact of
. . .abstention does not constitute casting a vote.
6.03 Meetings of Memben
(a)
Quorum. A meeting of the Members shall not be organized for 'the'
transaction of business unless a quorum is present. The Presencel of
Members entitled to cast at least' a majority of the Units of the Company .
who are entitled to vote on. a particular matter to be acted upon at the
meeting shall constitute a quorum for the purpOses of consideration and
action on the matter. The Members present ,at a duly organized meeting
can continue to do business until adjounnnent notwithstantling the
withdrawal of enough Members to leave less than a quorum~
(b) Location. All meetings of the Members sball be held at the principal place
of business of the Company or at such other place within or outside the
Commonwealth of Pennsylvania as the Manager sball specify or fix in the'
notice thereof. '
(c) Co1iduct of the Meeting.' All meetings. of the Members shall be presided
over by the Manager or a Person who is a Member designated by him.
The chair of any meeting of Members shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him fair to the
Members. .
(d) . Adioummenl The chair of the meeting of the Members shall have the
power to adjolDD a meeting fiom time to time, without notice other than
the announcement at the meeting of the time and place at which the
adjourned meeting will be held.
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(e)
Annual Meetings. An annual meeting of the Members for the election of a
Manager and for the transaction of such other business as may -properly
come before the meeting shall be held on such date and at such time as the
Manager shall fix and set forth in the notice of the meeting, which date
shall be within 13 months subsequent to the date of organization of the
Company or the last -annual meeting of Members, whichever most recently
occurred. If _an annual meeting is not called and held within siX months
after the time required by the previous sentence, any Member may call the
meeting at any time thereafter.
(f) Special Meetings. - Special meetings of the Members for any proper
purpose or purposes may be called at any time by the Manager Or by
Members entitled to vote fifty-six percent (56%) of the Units held by
Members entitled to vote. Only business within the puipose or purpOses
described in the notice of the meeting may be conducted at _ a special
meeting of the Members.
(g) Notice and Waiver of Notice. Notice of a meeting of Members shall be
given to the Members in accordance with section 9.02 of this Agreement.
A waiver of notice of a meeting signed by the Member entitled totbe
notice, whether- before or after the meeting, shall be deemedequiva1ent to
giving of notice. Attendance of a Member at a meeting constitutes a
waiver of notice of the meeting, except where a Member attends a meeting
for the express pmpose of objecting td the transaction of any business on
the ground that the meeting is not ladly called or convened.
6.04 Proxies.
(a) - Proxies Authorized. Evely Member entitled to vote at a meeting of the
Members may authorize another Person who.is a Member to act fOr that -
Member by proxy. The presence of, vote on, or eXpression by a proxy of
a Member at a meeting of the Members shall constitute the presence of,
vote on or expreSsion by the Member who gave the proxy.
(b) Execution ofFroxv. Every proxy shall be executed by the Member or the
duly authorized attorney-in-fact of the Member and filed with the
Manager. - A telegram, telex, cablegram, e-mail or other electronic
transmisSion by thememher, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Member shall be treated
as properly executed for pmposes oftbis section. -
Revocation. A proxy, unless coupled with an.interest, sball be revocable
. at will, notwithstanding any other agreement or any provision in the proxy
to the contrary, but the revocation of a proxy shall not be effective until
written notice thereof has been given to the Manager. An unrevoked
proxy shall not be valid after three (3) years from the date of its execution
(c)
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unless a longer time is expressly provided in the proxy. A proxy shall not
be revoked by the death or incapacity of the maker unless, before the vote
,is counted or the authority is exercised, written notice of death or
incapacity is given to the Manager.
A~on by Consent.
Any action required or permitted to be taken at a meeting of Members may be
taken without a meeting, without prior notice, arid without a vote, upon the
consent of Members who would bave been entitled to vote the minimum nmnber
of units that would be necessary to authorize the action at a meeting. at wbic}j all
Members entitled to vote thereon were present and voting. The consents shail be
in writing or in electronic form and shall be filed with the Manager.
6.06 Remote Participation.
6.08
The pres~ce' or participation, including voting and taking other actioD, at a
meeting of Members, by Conference telephone or. other electronic me8ns,
including without limitation, the Internet, shall constitute the presence of, vote on,
or actio~ by, the Member. .' . \
Voting by Joint Holden of Units.
. IfUmts are held by Members in a form of joint or common ownership (the "Joint
Owners''), Joint Owners, in a meeting. of Members.in which Members holding
Units are entitled to vote, must vote all the Units subject to joint or common
ownership in the same manner.
6.09
LiabDity of Memben.
The Members, as such, shall notbe liable for the debts, obligations or liabilities of
the Company except to the extent required by the Act. .
6.10 Penonal Services.
No Member shall be required to perform services for the Company solely by
virtue of him being a Member. Unless approved by the Manager, no Member
sball perform services for the Company or be entitled to compensation or
reimbursement of expenses for services performed for the Company.
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ARTicLE VII - BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
7.01 Financial Records. .
The Company shall keep books arid records of accolDlts which shall be
maintained on a cash basis, or sUch other method as is required for federal income
tax purposes, in accordance with the terms of this Agreement, eXcept that the
Capital Accounts of the Members shall be maintained in accordance with section
4.04 oftbis Agreement.
7.02 . Compauy Records.
In addition to the financial reports required by section 7.01, the Company shall
keep the following records:
(a) A list setting forth the full name and last known mailing address of each
Member and the Manager.
(b) A copy of the Certificate and all amendments thereto.
"
(d)
Copies of all of the Company's federal, state and local income tax returns
and annual financial statements. .
Copies of the currently effective wrien operating agreement an~ all
amendments thereto, and copies of any operating agreements no longer in
effect.
(c)
(e) . Minutes of the proceedings of the Members.
7.03 ReportS
.The COmpany shall furnish to its Members annual financial statements, including
a balance sheet as of the end of each fiscal year and a statement of income. and
expenses for the fiscal year. The financial statements shall be prepared by a
indqxmdent certified public accountant on. the basis of generally accepted
accounting principals, consistently applied or as in agreement between the
Members. The. financial statements shall be. mailed by the ComPany to each
Member within 120 days after the close of each fiscal year. Unless otherwise
required by this Agreement or by any applicable state or feder81law, the finailcia1
statements need not be audited or reviewed.
7.04 Fiuneial Accouuts..
The Manager shall establish and maintain one or more separate bank accounts. in
" the Company's name with federally insmed. depository institutions as determined
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by the Manager. The Manager may. not commingle the Company's funds with
funds of any Member. .
ARTICLE vm - DISSOLUTION, LIQmDATION AND TERMINATION
8.01 . DissolutioD.,
the Company shall dissolve and its affairs shall be wound upon the first to occur
of the following events: I
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(a) Entry.of an order of judicial dissolution of the Company under section
8972 of the Act.
(b)
The.aftimiative vote of the Members holding at least sixty per cent (60%)
of the outstanding Units. ..
8.02
Liquid~tiOD.
. . I
On dissOlution of the Company, the Manager shall act as liquidator or may
. appoint one or more representatives or Members as liquidator... The liquidator
shall proceed. diligently to wind up the affairs. of the Company and make. final
distributions as provided herein and in the Act. The costs of liquidation shall be
bome as a Company expense. Until final distribution, the .liquidator shall
continue to operate the Company's properties. Steps to be accomplished by the
liquidator are as follows: . . ..
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(a)
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As promptly as possible after dissolution aDd again after finalliquidBtion,
the liqUidator shall cause a proper accouirting to be made by a recognized
firm of independent certified public accountants of the Company's assets,
liabilities, ,and operations through the last day of the calendar month in
which the dissolution occurs or the. final liquidation is complete; as
applicable.. . . .
(b)
The liquidator shall first pay, satisfy, or discharge ftom Company funds all
of the debts, liabilities, and obligations of the Company to its creditors
(including, without limitation, aU expenses incurred in liquidation and any
advances described in section 4.03) or otherwise make adequate provision
for payment and discharge thereof. (including, without limitation, the
establishment of a cash escrow fund for contingent liabilities in such
. . .
amount and for such term as the liquidator reasonably may determine), all .
in accordance with the provisions of the Act as may be applicable.
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(c),
After all. the payments required by.subsection (a) of this section have been
made, any remaining assets of the Company shall be distributed to the
holders of its Units as follows:
(1) .The liquidator may sell any or all Company property, including to
Members, and any resUlting gain or loss from each .sale shall be
computed and allOCated to the Capital Account of the Members;
(2) With respect to all Company property that has not been sold, the
fair market. value of that property shall be determined and the
Capital Accounts of the holders of the Members shall be adjusted
to reflect the manner in which the unrealized income, gain, losS,
and deduction inherent. in property that has not been reflected in
the Capital Accounts previously would be. allocated among the
. Members if there were a taxable disposition of that property for the
fair market value of that property on. the date of distributiOn; and
(3) After completing the steps in paragraphs (1) and (2) above, the
. remaining assets shall be distributed to the Members in an amount
equal to the credit balance in each of their Capital Accounts, after
giving effect t~ all contributions, distributions and allocations for
all periods.
__ 8.03 Distributions.
All distributions in kind to the Members under this section shall be made subject
to the liability of each distributee for costs, expenses and liabilities relating to the
assets distributed in kind theretofore incurred or for which those costs, expenses,
and liabilities shall be allocated to the distributees pursuant to this section.. The
distribution of cash or property to a Member in accordance with the provisions of .
this section constitutes . a complete return to the Meinber of his Capital.
Contributions and a complete distribution to the Member of bis Membership
Interest in all of the Company's property. To the extent that a Member returnS
funds to the Company, the Member bas no claim against any other Member for
those funds.
8.04 Deficit Capital Accounts.
Notwithstanding anything to the. contrary contained in this Agreement and
notwithstanding any custom or role of law to the contrary. to the extent that the
deficit, if any, in the Capital Account of any Member results. from,. or is
contributabJe to, deductions and losses of the Company (including i1on~ items
such as depreciation),. or distributions of money pursuant to this Agreement to all.
Members in proportion to their respective Percentage Interests, upon dissolution
of the Company such deficit shall not be an asset of the. Company and such
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8.OS
9.01
9.02
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Members shall not be obligated to contribute such amount to the Company to
bring. the balance, of such Member's Capital Account to zero.
Certificate of Dissolution.
On completion of the liquidation of Company assets as provided herein, the
COmpany is, tenninated, and the Manager or such other Person as the Act may
require or permit shall file a Certificate of Dissolution with the Corporation
Bureau, Departnient of State, Commonwealth of Pennsylvania and take such other
actions as may be'necessary to terminate the existence of the Company. I
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ARTICLE IX - GENERAL PROVISIONS
Execution iil Couuterparts.
I
This Agreement may be executed m any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature ~
thereon, and all of which together shall constitute one and the same instnmient.
This Agreement shall beCome binding when any counterpart or counterp~,.
individually or taken together, bear the signatures of all of the initial Members.,
Notices. '
. .Any notice of' a meeting or for any other purpose required to be given to a
.Member under provisions of this Agreement or by the Act shall be given either
personally or by sending a copy thereof
(a) By first class or express mail, postage prepaid, or courier semce,charges .
prepaid, to the postal address of the Member appearing on the books of the
Company. Notice shall be deemed to ha.ve been given to the Member
entitled thereto when deposited with the.United States Postal Service or.
with a courier service for delivery to that Member; or
(b) By facsimile tntlSD1ission, electronic mail or other electronic
communication to the Member's. number or address for receipt of
facsimile transmissions, eleCtroni~ mail or other electronic communication
supplied by the Member to the Company for purposes of communication
with that Member. Notice pursuant to this subsection shall be deemed to
have been given to the Member when sent. . .
9.03 Entire Agreement.
This Agreement constitutes the entire agreement among the Members with respect .
to the subject matter hereof and. supersedes all prior agreements, express or
implied, oral or written,. with respect thereto. The. express terms of this
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Agreement control and supersede any.custom, course of performance or usage of
trade inconsistent with any of the terms hereof. . .
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9.04 Effect of Waiver or Consent.
A waiver or consent, express or implied, to or of any breach or default by any
Person in the perfonnance by that Person. of his obligations with respect to the
Company is not a consent or waiver to or of any other breach or default in. the
performance by. the Person of the same or any other obligations of that Person
with respect to the Company. Failure on the part of a Person to complain of any
act or any Person or to declare any Person in default with respect to the Company,
irrespective of how long that failure continues, does not constitute a waiver by
that Person. of his rights with respect to that default until ~e period of the
applicable statute of limitations has run. .
9.05 Amendment.
This Agreement or the Certificate may be amended from time to tiDie as
detennined by the Manager in his sole discretion. A vote of fifty-six percent
(56%) of the outstanding Units held by Members is required. at an annual or
special meeting of the Members shall be necessary for Members who are not
Managers to amend this Agreement or the Certificate.
". 9.06 Binding EffeCt and Rights of Third Parties. \
..This Agreement has been adopted to govern the operation of the Company, and
shall be binding on and inure to the benefit of the Members and their respective
heirs, . personal representatives, SUCCessoIS and assigns. This Agreement is
expressly not intended for the benefit of any creditor of the Company or any other
Person. Except and only to the extent provided by applicable statute, no such .
creditor or other PersOn shall have any rights under this Agieement.
9~07 Governing Law.
This Agreement shall be governed by, interpreted, and enforced in accordance
with the substantive laws of the Commonwealth of Pennsylvania (including,
without limitation, provisions concerning .limitations of actions), without
reference to the Conflicts of laWs rules of that or any other jurisdiction, except that
federal law also shall apply to the extent relevant. .
9.08 Severability.
IT any.provision of this Agreement or the application thereof to. any. Person or
circmnstance is held invalid or unenforceable to any extent, the remainder of this
Agreement and the application of that provision to other Persons or circumstanCes
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shall not be affected thereby and that provision shall be enforced to the greatest
extent pennitted by law.
9.09
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Construction.
Whenever the context requires, the gender of any word used in this Agreement
includes the ;masculine, feminine or neUter, and the number of any word includes
the siiigular or plural. All references to articles, sections, subsections and
paragraphs refer to articles, sections, subsections. and paragraphs' of this
Agr~ent.and all references to annexes are to annexes attached hereto, each of
which is made apart hereof for all purposes. The headings of this Agreement I are
for convemence only and do not form a part of this Agreement and shall not affect
. its interpretation.
9~lO No Compauy Seal.
I
The Comp~y shall not have a Company. seal and no agreement, instrmnent or
other document executed on behalf of the Company that otherwise would be vja1id
and binding on the Company shall be invalid or not binding solely because no
Company seal had been affixed thereto. \
IN WITNESS WHEREOF, the Member of the Company causing this Amended
.and Restated Agreement to be executed as of the day and year first above written.
. WITNESS:
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Elwood A. Altmeyer, Jr..
~.
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l::yn L: Hol get
;178077
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Lytl }..,. 1l0\linger. .
6212 Spring lUlO\\ DOve
Ramsburg, f ^ 1111\
"ElVlood 1\.. pJttne-yer, Jr.
'35\3 Beech Run Road
M,ecban1.csburg, f ^ 11050
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lniual Capital
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$100.00
$100.00
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fercentage
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450/0
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BALHAPROPERTY MANAGEMENT, LLC
MINUTES
INITIAL ORGANIZATIONAL MEETING
The organizers of the above named company, pmsuant to written call and waiver of
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notice, met at the registered. office of the. company in Camp Hill, P~lvania, on A~ 25,
2005 at 4:00 p.m.
Lyn L. Hollinger has been appointed as Manager of the meeting. A call of the roll
showed the following member(s) present:
Lyn L. Hollinger
Elwood A Altmeyer
The Manager presented to the meeting the call and waiver of notice pursuant to which the
meetirig was held. The call and waiver was ordered to be placed in the files of the company.
The Manager, Lyn L. Hollinger announced that the organizers have formed a company
with the aforementioned name. The Secretary further reported: .
1. That the organizer has retained the law firm of S~umaker Williams, P .C., Camp
Hill Pennsylvania, to perform the necessary legal services in connection with the
. fOIl1Urtion of the company;
2. That Certificate of Organization. had been prepared and. filed with the
Pennsylvania Department of State with the necessary check to cover the filing fee;
3. That the organizer received from the PennsylvailiaDepamnent of State a
Certificate of Organization;
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. The Certificate of Organization was ordeied.to be plaCed in the minute book of the
company. The following resolution was offered, seconded and unanimously adopted:
RESOL VED,that the actions of the organizer for and with respect
to the formation and organization of the company be and hereby are
. confirmed, ratifi~ and adopted. .
The Manager annoUnced that the organizers, together with counsel, had 'prepared an
. OperauDg Agreement for the company. This Operating Agreement was read, article by article, .
and paragraph by paragraph. The following resolution was thereupon offered, seconded and
unanimously adopted: "
RESO~ VED, that the Operating Agreement just read be and hereby
are adopted as the Operating Agreement of this company, and all acts and
deeds of the company and its officers and agents shall be controlled by the
. .
provisions thereof. .
The Operating Agreement was ordered to be placed in the files of the company.
__ The Manager repOrted that various expenditures 1d commitments were ~quired in older .
to arrange organizational details of the company. The mentioned some of these items in detail;
which included counsel fees, accountants' fees, filing fees, publication costS, purchase of the
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company seal and other company records, and various miscellaneous items. The . following
resolution thereupon was offered, seconded and unanimously adopted:
RESOLUTION, that the actions of"the organizer and Manager of
the company for and with respect to the fOIJD;ltion and org;m17,ation. of this
. company, including but not limited to making the aforesaid expenditures
and commitments, are hereby authorized, coi1firmed, ratified and adopted.
. The Manager suggested that the members should fix a financial year for the company and
recommended that such year commence on the lit day of January of each year. After discussion,
the following resOlution was offered, seconded and unanimously adopted:
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. RESOLVED, that the financial year of this company be established
to commence on the lit day of January of each year and end on the 31 It day
of December next following.
The Manager next suggested that the Company should authorize the establishment of
banking. relations and the opening of one. or more bank accounts. The followirig resolution
thereupon was offered, seconded and lDlanimously adopted:
RESOLVED,. that the monies and funds of the company shall be
deposited in the name of the company in a bank in the genera110cal of the
company, the same to be drawn upon by check or draft of this company as
signed by the Manager.
There being no further business, upon motion duly made, seconded and ~ously
approved, the meeting was adjourned.
~~~
yn . ollinger, ger
::~~~1'
L .H er
A_~.~.
B~ ~ : ~
Elwood A. Altmeyer, Jr. .. . .
: i 78087
COM M 0 N W E A l.T H . OF
DEPARTMENT
PENNSYLVANIA
OF STATE
October 13, 2005 .
TO All WHOM THESE PRESENTS SHAll COME, GREETING:
I DO HEREBY CERTIFY THAT,
BAlHA PROPERTY MANAGEMENT, LLC
is duly organized as a. Pennsylvania limited liability \. Company under the laws of
the Commonwealth of Pennsylvania and remains. subsisting so far as the
records of this office show, as of the date herein
.IN TESTIMONY WHEREOF, I
have hereunto set my hand and
caused the. Seal of the
Secretary's Office to be affixed,
the day and year above written.
\?~~. Q. c:~+~;
. Secretary of the Commonwealth
\childs
DEPARTMENT OF REVENUE
IlJIlEAU OF COItPLIANCE
LIEN SECTION
IIEPT. 211194I
HARRISBURt::. PA 171ta-09411 .
LIEN
CERTIFICATE
28963990 ~
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1n-111 tlI ... t 15-11)
Request of
SHUMAKER WILLIAMS P C
PO BOX 88
HBS PA 17108
702-05(2)
for a Lien Certificate under Section 213 of the Act of April 9, 1929, P.L. 343.
THIS CERTIFICATE IS A TRUE AND CORRECT STATEMENT OF CORPORATE TAX LIENS OF RECORD IN THE
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, AGAINST
BALHA PROPERTY MANAGEMENT LLC 8316-688
SETTLEMENT
DATE
TAX YEAR
'TYPE OF TAX
AJtOUNT
NONE
NOTE: INTEREST CHARGES ARE ASSESSED ON UNPAID TAXES AT TIME OF PAYMENT.
:M C-.ol~.-1th raser-ve. the right to ... collection of 8n3f eddltlone1 -.owtt of Corporat. Net I~ T_ which
.ey ...1_ .. a r.sult of ~. ... b~ the F.....l 8ovar~t. .
I
CERTIFICATE INCLUDES TRANSACTIONS AS OF:
neT -;)'-.
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Pi.... direct all lnqulrl..to the IIbove adcIre.., ATTII: Lien Section or t.lephone Inn 772-694' 01" (71n 783-6253.
TDD . 1-8"-447-3'2' ISarYlca. for Spacial ......lng wMI $peIIklng ....... Onl~).
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OPERATING AGREEMENT OF
BALHA FOOD SERVICES, LLC
RECITALS
. WHEREAS, BALHA Food Services, LLC (the "Company") was organized on
July 7, 200S as a Pennsylvania limited liability company by filing a certificate of
organization with the Corporation Bureau, Department of State, Commonwea1tll of
pennsylvania under and pursuant to the Pennsylvania Limited Liability Company Law of
1994; and
NOW, THEREFORE, the members of the Company hereby enter into the
Operating Agreement of BALHA Food Services, LLC as follows:
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ARTICLE I ~DEFlNITIONS
1.01. DermitioDs.
In addition to terms defined in other provisions of this Agreement and any annexes.
or exhibits thereto, the following terms have the following meanings set forth
below unless the context requires otherwise:
"Act" means the Pennsylvania Limited Liability Company law of 1994, IS Pa.C.S.
~8901 et seq., and any successor statute, as amended from time to time.
"Agreement" means this operating agreement,. as amended, modified,
supplemented or restated from time to time.
"Capital Account" meanS the individual account maintained by the Company with
respect to each Member as provided in Appendix A.
"Capital Contribution". means the aggregate amolDlt of cash and agreed value of
any property or services (as determined by the Member and. the Company)
contributed by each Member to the Company as provided by Section 4.01. In the
case of a Member that acquires Units by assignment or transfer in accordance with
the terms of this Agreement, "Capital Contribution" means the Capital
Contribution of that Member's predecessor proportionate to the acquired Units.
"Certificate" means the certificate of organization of the Company and any and all
amendments thereto and restatements thereof filed on behalf of the Company with
the Corporation Bureau, Department of State, Commonwealth of Pennsylvania in
accordance with the Act.
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"Code" means the Internal Revenue Code of 1986, as amended and any successor
statute thereto.
"Company" means BALHA Food Services, LLC,. a Pennsylvania limited liability
company.
"Manager" m~ a person serving as a manager of the Company as provided in
this Agi-eement
"Member" means it person Who at the time is a record holder or record owner of
Units.
"Membership Interest" means the interest of a Member in the. Company, including,
without limitation, interests in Profits and. Losses, rights to distributions
(liquidating or otherwise), allocations, infonnation, and to consent to or approve
.. . actions by the Company, all in accordance with the provisions of this Agreement
and the Act.
. .
"percentage Interest" means the number of Common Units held a particular time
by a M~t>er, divided by the number of Common Units then held by all Members,
expresSed as a percentage.
"Person" means a natural person,corpora\io~ general or limited partnership,
'l~ted liabi1i~ c?mpany, joint venture, ~ estate, asSociation or other legal
entity or orgamzation. .- .. u 1 .
"Profits and Losses" mean, for each taxable year or other period, an amount equal
to the Company's taxable income or loss for that year or period, . determined m
accordance with Code section 703(a).
"Treasury Regulations" or "Treas. Regs." means the income tax regulations,
including temporary regulations and guidance promulgated under the Code. .as
those regulations and guidance may be amended from time to time, including
corresponding provisions of succeeding regulations or guidance. .
"Units" see section 3.02.
ARTICLE D - ORGANIZATION
2.01 PriDcipal Place of Business; OtJIer Offices.
The pnDcipal place of business of the Company shall be 6212 Spring Knoll Drive,.
Hamsburg, Pennsylvania 17111 or at such other place as the Manager may
designate :from. time to time, which need not be in the Commonwealth. of
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Pennsylvania. The Company may have such other offices as the Manager may
designate ftom time to time. . .
2.02 Purpose.
The purpose of the CompaIiy is to engage in any lawful act or activity for which
limited liability companies orgamzed under the Act may engage and to do. all
lawful activities necessary, convenient, desirable or incidental to the foregoing.
2.03 Iucorporatiou. I
1
Upon the approval of the Manager of a plan to incorporate the Company in a
transaction that qualifies under section 351 of the Code and that maintains the
relative rights and preferences of the Units (the "Section 35 1 Transaction''), the Units
held by each Member shall be converted into, or exchanged for, shares of the
corporation formed for that purpose, by merger or otherwise, or the Company shall
file an election with the Internal Revenue Service to be classified as a corporation for
federal income tax purposes. A Member shall not have any veto power or o~er
voting power with respect to incorporation of the Company as provided in . this
section, and each Member shall take all actions necessary or desirable in. connection
with the coDsummation of the Section 351 Transaction. The Company shall pay all
of the organizational, legal and accountiiig expenses and filing fees incurred in
connection with the Section 351 Transaction. In connection with the Section 351 .
Transaction, each Unit shall be converted automatica1lyinto common shares (the
"Common Shares''). The Common Shares shall have the same rights; privileges,
preferences and obligations as the Units immediately after the Section 351
Transaction.
ARTICLE m - MEMBERSHIP INTERESTS
3.01 Initial aDd Subsequent. Memben.
The Members of the Company are the Persons listed in Annex" A. A Person who
is not already a Member and who acquires a previously outstanding Unit or Units
in accordance with this Agreement automatically shali be admitted as a Member.
Other Persons may be admitted as Members from time to time upon the issuance
to them of a Unit or Units on such terms as are fixed by the Manager. It shall not
be necessary for Persons who are admitted subsequently as Members or who
acquire any or all of an existing Member's Units to execute this Agreement. either
by counterpart or amendment. When any Person is admitted as a Member or
ceases to be a Member, the Manager shall prepare a revised version. of Annex A
and distribute it to all Members.
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3.02 Authorized Membenhip Interests. .
The aggregate Membership Interest in the Company shall be divided into such
mnnber of Units as may be issued and outstanding at the time. Except as
provided in the terms of an outstanding class or series of Units, the Manager shall
have the aUthority to amend this Agreement, without action by the Members, to
create new ~lasses or series of UnitS, having such deSignations, voting rights,
preferences, limitations, special rights and other tenns and consisting of such
. mnnber of UnitS as the Manager shall provide in the amendment.
3.03. Record Holder of Units.
3.04
The Company shall be entitled to ticat the Person in whose name any Units of the
ComPany stand on the books of the Company as the absolute owner thereof, and
as a Member of the Company holding the Membership Interest evidenced by
those Units. The Company Shall not be bound to recognize any equitable or other
claim to, or interest in, such Unit or Units on the part of any other Person, whether
or not the Company has exprCss or other notice of any such claim. .
Transfer of Uuits.
(a) No. Trimsfer without Consent ofManaReramd other Members. A Member
. who desires to transfer his Units in the CompaDy may do so only in
compliance with this Agreement and \upon conseot of the Manager and
other Members who, in his or their so"- discretion, may or may not grant
his or their consent. In this regard, the Member requesting the Manager's
and Member's consent for a transfer of his Units must provide the
Manager and Members with copies of all instmments and dOcuments to be
used to effect the transfer. The requesting Member must transmit the
request for consent and the 8ecompanying documents to the Manager at
least sixty (60) days before the proposed transfer.date. The requesting
Member must furnish promptly any information requested by the
Manager, including infonnation on the proposed transferee. The Member
transferring his Units must pay or obligate himself to pay all reasonable
expenses incurred by the Company in c01mection with the transfer of bis .
Units. Approval of other Members to the transfer of a Member's Units in
the Company shall not be required.
(b) No Transfer if it has Adverse Legal Effect. No Member may tranSfer
Units in the Company if the Manager detennines in his sole discretion that
the transfer, alone or combined with other transactions, would jeopardize
. .the status of the CompaDy as a limited liability coptpany.under state or
. federal law or violate any restriction on transfer and resale of the Units.
under applicable state or federal securities laws.
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(c) Right of First Refusal. In addition to the requirements of Section 3.04(a},
if a Member desires to seD or assign all or part of his Units, be shall first
offer the same, in writing addressed to the Manager, on the same terms
and conditions being offered to a third party, to the Company. The
Manager shall have thirty (30) days from receipt of such offer to accept or
reject the offer. If the Manager accepts the offer, the selling Member shall
sell and the Manager shall purchase the Units offered and the Member
must accept imposition of the terms of Section 3.04(d) if the Manager, in
his sole discretion, imposes such terms. The Manager, in his sole
discretion, shall determine whether the purchase is made PersonallYI for
his on account or on behalf of the Company for its 8CCOlDlt. U\the
Manager rejects the offer, the Member shall be free, subject to receiPt of
the Manager's consent as required by Section 3.04(a) and compliance
with. all other provisions of this Agreement, to sell or assign his Units on
the Same terms and conditions to the third party who made said offer and
the third party shall become a Member of the. Company. If the salp or
assignment to the third party is made on any terms different from those
originally proffered to the. Manager by the Member, the saltf or
assignment shall be null and void. '
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(d) Buvout Terms. In purchasing Units from a Member pursuant to Seqion
3.04(c), the Manager, in his sole discretion, may purchase and take title to
the Units, either personally or on behalf of the Company, in retmn from
the Member receiving a cash payment of 20 percent (20%) of the
pmchase price ("Cash Paymentj and a promissory note. from the
Manager or the Company obligating the Manager or the Company to pay
the remaining 80 percent (800/0) of the purchase price in five annual
. installments, such period to commence 12 months from the date of the
Cash.Payment with intereSt imputed at an annual rate of the Prime Rate as
published in the W all Street Jomnal as of the business day immediately
preceding the date the Cash Payment is made.
(e) Option to Rqurehase uoon Death. By purchaSing Units in the Company,
the Member agrees that upon his death of said Member, his estate shall
sell his Units back to the Company.. on the terms set forth in Section
3.04(d) and the Company agrees that it shall buy such Units on those
terms. If it so desires andsball give notice to the Estate of the deceased
member within ninety (90) days of the date of his or her death. By
pmchasing Units in the Company, the Member agrees that all the
provisions, tenilsand conditions in this Agreement are binding on his
heirs, assigns and representatives. If no notice is given then the interests
shall pass to the heirs of devisees of the deceased member and those
individuals agree that all the provisions, terms and conditions in this
Agreement are binding on him/her or them.
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· (f) No Alienation bv DivorCe. If a .Member originally purchases Units in his
own name, he agrees, by purchasing Units in the Company, that the Units
. thereafter shall not be transferred to any current or future Spouse whether
or not such transfer is made in connection with a settlement of marital
property in a divorce proeeeding.
(g) Caoital Account of Transferee. Upon the transfer of Units . made in
. accordance with this Agreement, .the transferee shall succeed to the
. corresponding portion .of the Capital Account of the transferor. .
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(h) Purchase Price. If the Company. elects to purchase the withdrawing
Member's int~ the purchase price (the "Price") shall be fifty percent
(50%) of the value of the Company, regardless of the withdrawing
Me1fiber's ownership interest in the Company. In. the event that the
Members cannot mutually agree to the value. of the Company each. .
Member shall choose a certified appraiser to value all Company property
as !l whole. This includes but is not limited to the real estate owned by
BALHA Property Management, LLC and the restaurant and its assetS
owned by this Company. It is the intent that the business as a whole sball
be' appraised and the purchase price shall be the fair market value of the
. Company and BALHA Property Management, LLC minus all liabilities.
The appraisals shall be averaged and liabilities of the Company shall be
deducted ftom that average. All costs associated with each appraiser or
. appraiSal. shall be borne by each Meniber individually. In the event that
the appraisals for the total value of thd Company's assets differ by greater
than twenty (20%) percent of each other, then the Members shall agree on
a third independent certified appraiser to appraise all ~pany property
as a whole. Said appraisal shall conclusively detennine the value of the
Company minus the Company's liabilities.. The cost for this appraiser and
appraisal shall be bome by the Company. The settlement for such
purchase shall be held at the Company's principal.office at 10:00 o'clock
. A.M. on the sixtieth (60th) day after the date on which written notice .of
the election to purchase was given, and if not a business day, then on the
business day next following, or at such earlier time or other place as the
withdrawing Member and the Company may mutually agree, at which
settlement:
(i) the Company shall:
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(a) . make by certified check, bank cashier's check or other
cash-equivalent satisfactory to the withdrawing Member, or bislher
legal representatives, as the case may be, an initial. down payment
in an amount equal to not less than twenty percent (200..4) of the .
Price, and .
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(b) execute and deliver to and in favor of the withdrawing
Member, or hislher legal representatives,. as the case may be, a
promissory note for the remaining balance of the Price, together
with interest thereon at a rate equal to the "applicable federal rate"
. in effect as of the date hereof under Section 1274(d) of the Internal
Revenue Code of 1986, compounded annually, in sixty (60)
monthly installnients commencing on the first day of the second
calendar month following such settlement and continuing
thereafter on the first day of each of the succeeding fifty-nine (59)
consecutive calendar months, with the right to make prepaYD1ent
thereof in whole or in part at any time or times without preinilun,
penalty or charge; and
. (ii) . the Withdrawing Member shall execute, acknowledge and deliver
to the Company written instruments of transfer and assignment of his/her
Company interest, in such form, containing such terms and in favor of
such persons as may be prescribed by or satisfactory to the Company,
whereby the withdrawing Partner's entire Partnership interest, ~ all
right, title and interest therein and thereto, is assigned and transferreCl to
Partnership or its designees. Membership Interests constitute the personal
estate of Members and may be tr~ferred or assigned. If all of the oJher
Members of the Company other than the Member proposing to dispose of
his or her interest do not approve of the proposed transfer or assigmnent .
by unanimous written consent, the transferee of the interest of the Member
shall have no right to participate in the management of the business and
affairs of the Company or to become a Member. The transferee shall only
be entitled to receive the distribUtions and. the return of contributions to
. which that Member would otherwise be entitled.
Assignmeut of Uuits
(a) Assigmnent in. Contravention of Agreement are NuU and Void. Any.
attempted assignment of Units or any part thereof which is not in
compliance with this Agreement shall be null and void. Notwithstanding
anything in this Agreement to the contrary, the Company and. the Manager
shall be entitled to continue to treat the assignor of Units as the absolute
owner of such Units. Accordingly, the Company and Manager shall incur
no liability for distributions of cash or other property made in good faith to
such assignor lDltil such time as it receives the written assignment, has
record ed such assignment on the Company's books and records and such
assignment becomes effective in accordance with the terms of this
Agreement. No assignment .of Units, even is such assignment causes the
substitution of the assignee as a Member, shall release the assignor from
those liabilities to the Company that survive the assigmnent
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(b) Consent. No consent of other Members shall be required to effect the
assignment. The prior consent of the Manager is required but shall be
)Vithheld only if he has determined, in his. sole discretion, that the
assignment would adversely affect the Company's status as a limited
liability company under state or federal law or violate any restrictions on
tranSfer and resale of the Units under applicable state or federal securities
laws.,In this regard, the Member requesting the Manager's consent for an
assignment must provide the Manager with copies of all instruments and
.documents to be used to effect the assignmeIit. The requesting'Member
must transmit the request for consent and the accompanying docmnents to
the Manager at least sixty (60) days.before the proposed assignment date.
The requesting Member must furnish promptly any infonnation requested
by the Manager, including information on the proposed assignee. The
. Member assigning his Units must pay or obligate himself to pay all
reasonable. expenses incurred by the Company. in connection. with the
assignment of any of his Units.
(c) Intention of Assi2Dor.. The Member who assigns his Units must evidence
his intention that the assignee be admitted as a Member in his place,
~ecute anyinstnmients required to accomplish the ~gnment, and effect
the assignment.in compliance with the tenns prescnDed in this Agreement.
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(d) Rights of Assignees. The assignee of a Unit shall become a Memba' and
. shall Iiave the same rights as other Merltbers, including the right to receive
distributions, returns of capital and allocations of net profits and losses
attributable to the Units.
.(e) Invohmtary Assignments. }fa Member's Units arc taken of distributed by
levy, foreclosure, charging order, execution or similar proceeding, the
Company shall not dissolve. Instead, the assignee of the Member's. Units .
only shall be entitled to receive distributions and allocations of profits and
losses attributable to the Units. Such assignee sba11 have no right .to
interfere with the management or administration of the Company or its
business or affairs and shall have no right to become a Member of the
Company. .
(f) Tax Liability. The Company shall provide the assignee of a Member's
. Units with all relevant information with respect to filing his. state and
federal income tax returns. .
3.05 Lack of Authority.
A Member acting individually shall not have the authority or power to. act for. or.
on behalf of the Company or otherwise bind the Company in any way.
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3.06 No Right or PartitioB.
A Member shall not have the right to seek or obtain partition by court decree or
operation of law of any Company property, or the right to own or use particular
assets of the Company.
3.01 DistnDution UPOD Dissociation of a Member.
A Member who becomes dissociated from the Company upon the occurrence of.
an event described in section 8971(a)(4) of the Act sball not have the right ~der
section 8933 of the Act to be paid the fair value of the Membership Interest of1the
member as a result of the dissOciation. .
3.08 EvideDce aDd TraDsfer of Units.
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(a) Evidence. The Units shall be represented by certificates.
. (b) Transfer Procedure. Transfers of Units shall be made on the Unit regfster
of the Company. A transfer of Units represented by a certificate shall be.
made upon SWTender of the certificate, endorsed or accompanied by a.
stock power executed by the person named in the certificate or b:x an
attorney lawfully constituted in writing. No transfer shall be. made
inconsistent with the provisions of 13 Pa.C.S. div. 8 or other applicable
provisions oflaw. .
(c) Unit Certificates. Unit certificates shall be in such form as approved by
the Manager and shall state that the Company is organized under the laws
. of the Commonwealth of Pennsylvania, the name of the person to whom
issued, and the number and class of Units and the designation of the series,
if any, that the certificate represents. The Unit certificates shall be
numbered and registered in the records of the Company as they are issued, .
and shall be signed by the Manager.
(d) Legends on Unit Certificates. The Manager shall cause appropriate
legends . to be placed on each Unit Certificate with respect to the
transferability of the Units under the Agreement and any applicable state
and federal securities laws~ . .
(e) Lost. Destroyed or Mutilated Certificates. .The holder of any Unit
certificate immediately shall notify the Manager of any loss, destruction,
or mutilation of the certificate, and the Manager, in his discretion, may
cause a new certificate to be issued to the holder in accordance with 13
Pa.C.S. ~840S.
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4.01 Capital Contributions.
The Company shall keep a record of the Capital Contributions made by the
Members. ~ Member shall not be required to make any capital contribution to
the Company not specifically agreed to in writing between the Member and the
. Company or be obligated or required under any circumstances to restore any
negative balance in the Member's Capital Account. .
4.02 Return of CODtributioDs.
A Member..is not entitled to the return of any part of the Member's Capital
. Contribution, or to be paid interest in respect of the Member's Capital ACcount or
Capital Contribution unless othe.rwlse agreed to by the Parties. An unrepaid
Capital Contribution is not a liability of the Company or of any Member. .A
Member is not required to contribute or to lend any cash or property to the
Comp~y to enable the Company to return any Member's Capital Contribution.
4.03
AdvaDces by Memben.
.. A Member may agree, with the consent of the Manager, to loan funds to, or
guaranty obligations of, the Company. A load to the Company or guaranty of its
. obligations by a Member shall not be deemed to be a Capital Contribution of that
Member.
4.04 Capital AccouDts.
At all times while there is more than. one Member, a Capital. AccolDlt shall be
established and maintained for each Member.
(a) The allocation and capital account maintenance provisions of Treasury
Regulations lDlder section 704 of the Code are hereby. incorporated by
reference, including a uqualified income offset" within the meaning of
Treas. Reg.~1.704-1(bX2XiiXd)'- the rules regarding allocation of"pat1ner
nonrecourse deductions" under Treas. Reg. ~1.704-2(i)(1), "Jninimmn
gain chargeback" under Treas. Reg.~1.704{2Xf) and "partner nonrecourse
debt minimmn gain cbargeback" under Treas. Reg. ft.704(2XiX4), and
the limitation on allocation of losses to any Member that .would cause a
.deficit capital account in excess of Such member's capital contribution
. obligations and share of minimum gain and partner nomeCourse debt..
minimwn gain under Treas. Reg. f1.704-1(b)(2)()ii)(d) as modified by
Treas. Reg. ~~1.704-2(g){1) and 1.704-2(i){S).
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(b)
To the extent contributed property has a fair market value at the time of
contribution that differs from the contributing .Member's basis in the
property, and to the extent the carrying value of property of the Company
for Capital Account purposes otherwise differs from the Company's basis
in such property, depreciation, gain and loss for Capital Account purposes
shall be computed by reference to such carrying value rather than such tax
basis. In accordance with section 704(c) of the Code, income, gain, loss
and deduction with respect to such property shall, solely for tax purposes,
be shared among the Members so as to take account of the variation
between the basis of the property to the Company and its fair market vplue
at the time of contribution, or at the time that the carrying value of Such
property is adjusted under Treas. Reg. ~1.704-1(bX2Xiv)(f),as the case
may be.
( c) Dming the first 24 months of the Company, any losses, but not profits,
shall be allocated as follows: Ninety-five percent (95%) to Elw~ - A.
Altmeyer, Jr. and. five percent (5%) to Lyn L. Hollinger. After twenty-
four (24) months all losses and profits shall be distributed or allocatfid in
accordance with the member's percentage of ownership in the Company.
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4.05
Profits aDd Losses.
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At all times while there is more.than one Member, Profits and Losses shall be
allocated to the members in accordance with Percentage Interests except as
otherwise provided in section 4.04 of the Agreement.
4.06 Distn"butiODS.
Except as otherwise provided in Article vm (Dissolution, Liquidation and
Termination), the Manager, in his sole discretion, may authorize the Company to
make distributions to. Members. However, at a minimum the Manager shall
distribute the amo1Dlt of tax necessary to cover any tax obligation pursuant to the
Company. All distributions, otheC than liquidating-distributions,sball be made to
the Persons shown as holders of record of Units at the time in proportion to their
percentage Interests.
4.07. . EstabllshmeDt of Reserves.
The M~ager shall have the right and obligation to establish reasonable reserves
for the maintenance, improvement, acquisition, capital expenditure and other
contingencies, such reserves to be. funded. with such portion of the _operating
revenues of the Company as the Manager may deem necessary or appropriate . for
that pmpose.
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4.08 Tax Returns.
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The. M~ager shall atrange for the preparation of all tax. returns tequired. to be
filed for the Company. Each Member shall be entitled toreceiv~, upon written
reque~ copies of all federal, state, and local income tax returns and informational
ret\J!IlS, if any, which the Company is required to file. All information needed by
the Membell or other Persons who were Members during the applicable tax year
forinoome tax purposes shall be prepared by the Company's accountants and
furnished to each such Person after the end of each tax year of the Company.
4.09 Tax Elections.
(a)
Permitted Elections. To the extent permitted by applicable tax law, the
. Conipany may make the following elections on the appropriate tax returns:
(1) To adopt the Calendar year as the Company's taxable year~
(2) To adopt the cash method of accounting and to keep the
. Company's books and records on the income-tax method.
(3) If a transfer of a Membership Interest as descnDed in section 743
. of the Code Occurs, on written request of the transferee, or if a
distribution of Company J>1'OPCI1Y is made on which gain described
. . . in section 734(b)(1 )(A) of the Code is recognized or there is an
excess of adjusted basis as descbDed in section 734(b)(1)(B) of1be
Code, to elect, pursuant to section 754 of the Code, to "just the
basis of Company properties..
(4) To elect to amortize the organizational expenses of the Conipany
and the start-up expenditures of th~ Company ratably over a period
of 60 months as permitted by sections 195 arid 709(b) of the Code.
(5) Any other election the Manager may deem appropriate and in the
best interests of the Members.
(b) Prohibited Elections. The Comp~y, the Manager or any Member shall
not make or cause to be made an election that results in the Company
being taXed as a corporation for federal income tax pmposcs. or to be
excluded from the application of the provisions of subchaPter K of chapter
1 of subtitle A of the Code or any similar provisions of applicable State
law, and no provision of this Agreement sba11 be construed to sanction,
. approve or ratify such an election. .
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4.10 'Tax Matteo Partner.
If the Company is subject to the consolidated audit procedmes of sections 6221 to
6234 of the Code, the Manager may designate himself or another Member to be
the "tax matters partner" of the Company pursuant to section 6231(aX7) oftbe
Code. Any Member who. is. designated "tax matters partner" shall. take such
action as may be necessary to. cause each other Member to become a "notice
partner" within the meaning of section 6223 of the Code. Any member who is
designated a "tax matters partner" shall inform each other Member of all
significant matters that come to his attention in his capacity as "tax ma~
partner" by giving notice thereof on or before the fifth business day' at\er
becoming aware thereof and, within the time, shall forward to each other Meniber
copies of all significant written communications it may receive in that capacity.
The Company shall reimburse the J'tax matters partner" for. any costs incurred
representing the interests of the MemberS in respect of Company tax matters.
4.11 Tax WithhoJdiDg.
"
Unless treated as a Tax Payment Loan, any amount paid by the Company for or.
with reSpect to any. Memb~ on account. of any withholding tax or other ,tax
payable with respect to the income, profits or distriblltions of the Company
pursuant to the Code, the Treasury Regulations, or any state or local statute, .
regulation or ordinance requiring such payment (each a "Withholding Tax Act")
shall be treated as a distribution to the Dlember for all purposes of this Agreement.
To the extent that the amount required to be remitted by the Company under a
Withholding Tax Act exceeds the amOlDlt then otherwise distributable to the
Member, the excess shall constitute a loan from the Company to the member (a
"Tax Payment Loanj. Each TaX Payment Loan shall be payable Upon demand
and shall bear interest, wm the date that the Company makes the payment to the
relevant taxing authority, at the applicable federal short-term rate \Dlder section.
1274(dXl) of the Code, determined and compounded semiannually. So long as
any Tax Payment Loan or the interest thereon remains Unpaid, the Company shall
make future distributions due to the Member under this Agreement by applying
the amount of any such distribution first to the payment of any unpaid interest on
all Tax Payment Loans of the Member and then to the repayment of the principal
. of all Tax Payment Loans of the member. The Members shall take all actiOns
necessary to enable the Company to comply with the provisions of any
Witbholding Tax Act applicable to the Company and to. carry out the provisions
oftbis section.
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5.02
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ARTICLE V.-MANAGEMENT
Management by a Manager.
The .business and affairs of the Company shall be managed by Lyn L. Hollinger
who is hereby designated as. Manager. The Company may act only by actions
taken by, Qr under the directiOn of, the Manager m accordance with this
Agreement. The Manager and Members will jointly work towards the
management, conduct, and control of the business. affairs of the Comp'8Dy~ No.
Member, other than the Manager, shall have the right or authority to act for, or
bind the Company. In the event thala Member takes any action. to bind the
Company in violation of this Agreement, he shall be solely responsible for any
loss and expense incurred by the Company as a result of the Member's
unauthorized action and such Member agrees to indemnify and hold the Company
harmless with respect to such loss or expense.
Qualifica~oD, ElectioD and ~erm.
The Manager must be a Member of the Company. The Manager shall be elected
annually by the Members by a fifty-six percent (56%) vote~ Any Member may
nominate himself or another Member to be the Manager of the Company. The
nominee for election as Manager who receives the highest .number of Units voted
. in such election shall be elected as Manager. The Manager sballhold office until
. the next annual meeting of the Company or btil his sticcessor shall be elected
and qualified. .. r-.
5.03
Omcen of the Company.
The Company may have such officers, other employees and agents as shall be
necessary or desirable to conduct itS business. : The Manager may desigi1ate a ..
Member or any other Person to serve as an officer of the Company. If the title is
one commonly used for officers of a business corporation, the assignment. of that
titlesball consti~te the delegation of the authority and duties that normally are
assOciated with that office, subject to any specific delegation of authority and
duties made by the Manager. Tht salaries or ()ther ~Oa, if .y, of the
officers, other employees and age.bt8. c>fUte Company shall be fixed fiom time to
time by the Members or such other Person to whom the Member have delegated
that authority. in addition to the designation of officers and the enumeration of
their respective duties, the Manager may grant powers of attorney to Persons to
act as agent for or on behalf of the Company, to do any act which would be
binding on the Company, to incur any expenditures on behalf of the Company, or
to execmte, deliver and perfonn any agreement, act, transaction or other matter on
behalf of the Company. Such powers of attorney may be revoked or modified at.
any time and in any manner deemed necessary by the Manager.
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5.04 Vacancy, Removal aDd Resignation..
Any vacancy in the position of Manager caused by.death, resignation or removal
of the Manager shall be filled by a special meeting of the Members. Election of a
new Manager .must comply with all tenns of this Agreement, including section
5.02. A Manager can be removed with or withol1t cause.. at any meeting of
Members expressly called for that purpose where forty-five per cent (45%) of the
outstanding Units which voted in the elected voted for removal of the Manager.
5.05
CompeDsatioD and ReimbunemeDt.
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A Manager and all members shall receive such compensation for his service as
the Members may designate from time to time. The Manager and all Members
also shall be entitled to reimbursement for out-of-pocket expenses incurred in the
course of his service as manager and for bona fide business expenses incurred in
the ordinary course of the Company~s business. .
5.06 Other Business OpportuDities.
".
Subject to the provisions of this Agreement, the Manager or any Member of the.
Company at any time and from time to time may engage in and possess interests
in other business ventures of any.and every type and description; independently or .
with others, with no obligation to offer the Company or any Member the right to
participate therein.
.5~07 . Interested TransactioDs.
A contract or transaction between the Company and the COinpany~s Manager or
officers or between the CompanY and another domestic or foreign association in
which the Manager or an officer has a .management role or financial or other
interests, shall not.be void or voidable solely for that reason.
5.08 LimitatioD ofLiabmty~.
A Manager shall not be personally liable, as such, for monetary damages (other
than lDlder criminal statutes and under federal, state, and local laws imposing
liability on managers for the payment of taxes) for any action taken, or any failure
. to take any action, unless the person~s conduct constitutes fraud, self-dealing,
willful misconduct, or gross negligence. No amendment or repeal of this section
shall apply to or have any /effect on the liability or alleged liability of any Person
who is or was a Manager of the Company for or with respect to any acts or
omissions of the Manager occurring prior to the effective. date of such amendment
. or repeal. . If the Act is. amended to permit a Pennsylvania limited liability
company to provide greater protection from personal liability for its managers
than the express terms of this section, this section shall be construed to provide
" for such greater protection.
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ARTICLE.V1-.MEMBERS
6.01 Voting Rights of Members.
The voting rights of Members shall be based on the number of outstanding Units
held by each Member.
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6.02 Action by Members.
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Except as otherWise provided in the Act, the Certificate, or this Agreement,
whenever any action is to be taken by vote of the Members, it shall be authorized
upon receiving the affirmative vote of fifty-six percent (56%) of the outstaDding
Units held by Members which voted on the action. :Recording the fact of
abstention does not constitute casting a vote.
6.03. MeetiDgs of Members
(a) Quorum. A. meeting of the Members shall not . be orpli7.ed for the.
transaction of business unless a quorum is present. The presence of
.Members entitled to cast at least a majority of the Uilits of the CompanY
who are entitled to vote on a particular matter to be acted upon at the
meeting shall constitute.a quorum for the pmposes of consideration and
action on the matter. The Members present at a duly orpni7.ed meeting
.~. continue to do busiDess until. ~joumment notwithstanding the
WIthdrawal of enough Members to leav~ less than a quonnn.
(b) Location. All meetings of the Members shall be held at the principal place
of business of the Company or at such other place within. or outside the
Commonwealth of Pennsylvania. as the Manager shall specify or fix in the
notice thereof.
(c). Conduct of the Meetin2. All meetings of the Members shall be pteSided
over by the Manager or a Person who is a Member desigru'ted by bim~
The chair of any meeting of Members. shall determine the ortler of
business and the procedure at the meeting, including such IegulatiOD of the
manner of voting and the conduct of discussion as seem to him fair to the
. Members. . .
(d) Adiournment. The chair of the meeting of the Membeis shall have the
power to adjomn a meeting from time to time, without notice other than
the announcement at the meeting of the time and place at which the
. adjourned meeting will be held. .
(e) Amual Meetings. An annual meeting of the Members for the election of a
Manager and for the transaction of such other business as may properly
come before the meeting shall be held on such date and at such time as the
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Managei' shall fix and set forth in the notice of the meeting, which date
shaU be within 13 monthS subsequent to the date of organization of the
Company or the last annual meeting of Members, whichever most recently
occurred. If an annual meeting is not called and held within six months
after the time required by the previous sentence, any Member may call the
meeting at anytime thereafter..
(f)
Soecial Meetin~, Special meetings of the Members for any proper
purpose or. pmposes may be called at any time by the Manager or by
Members entitled to vote at least fifty-six percent (56%) of the Units held
by Members. entitled to vote. Only business within the plll'pOse lor.
purposes descnDed in the notice of the meeting may be conducted at a
. special meeting of the Members.
(g)
Notice and Waiver of Notice. Notice 'of a meeting of Members shall be
. given to the Members in accordance with section 9.02 of this Agreemcmt.
A waiver of notice of a meeting signed by the Member entitled to the
notice, whether before or after. the meeting, shall be deemed -equivalen~ to
giving of notice. Attendance of a Member at a meeting constituteS a
waiver of notice of the meeting, except where a Member attends a meeting
for the express 'purpose ofobjecting to the transaction of any business Ion
the ground that the meeting is notlawfully called or conveD.ed.
. (a) Proxies Authorized. Every Member entitled to vote at a meeting of the
Members may authorize another Person who is a Member to act for that
. Member by proxy. The presence of, vote on; or expression by a.proxy of
a Member at a meeting of the Members shall constitute the presence of,
vote on or expression by the Member who gave the proxy. .
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(b) Execution of Proxy. Every proxy shall be executed by the Member or the
duly authorized' attorney-in-fact of. the Member and filed with the
Manager. A telegram, telex, cablegram, e-mail or other electronic
transmission by the member, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Member shall be treated
as properly executed for pmposes of this section.
Revocation. A proxy, unless coupled with an interest, shall be revocable
at will, notwithstanding any other agreement or any provision in the proxy
to the contrary, but the revocation of a proxy shall not be effective until
written notice thereof has been given to the Manager. An unrevoked
proxy shall not be valid after three (3) years from the date of its execution
unless a longer time is expressly provided in the proxy. A proxy shall not
be revoked by the death or mcapacity of the maker unless, before the vote
(c)
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is counted or the authority.is eXercised, written notice of death or
incapacity is given to the Manager.
6.OS Action by COD sent
Any' action 'required or permitted to be taken at a meeting of Members may be
taken witho~t a meeting, without prior notice, and without a vote, upon the
consent of Members who would have been entitled to vote the minimmn number
of Units that would be necessary to authorize the action at a meeting at which all
Members entitled'to vote thereon were present and voting. The consents shall be
in writing or in electronic form and shall be filed with the Manager.
6.06 Remote Participation.
The presence or participation, including voting and taking other action, at a
. . meeting of Members, by . conference telephone or other electronic means,
including ~thout limitation, the Internet, shall constitute the presence of, vote on,
or action by, the Member. .
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6.08 Voting.by Joint Holden ofUDits.
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If Units are held by Members ina form of joint or common ownership (the "Joint
Owners"), Joint Owners, in a meeting of Members in which Members holding
. Units are entitled to vote, must vote all the Units subject to joint or common
ownership in the same manner. . I
6.09 LiabiBty of Memben.
The Members, as such, shall not be liable for the debts, obligations or liabilities of
the Company except to the extent required by the Act.
6.10 Penonal Services.
No .. Member shall be required to perform services for the Company solely by
virtue of him being a Member. Unless approved by the Manager, no Member
shall perform services for the Company or. be entitled to compensation or
reimbUrsement of expenses for services Performed for the Company.
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ARTICLE VII - BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS
7.01 . FinaDcia( Reeords. :
The COIIipany. shall keep books and records of accolDlts which shall be
maintained on a cash basis, or such other method as is required for federal income
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. . 'taX purposes, in accordance with the. terms of this AgreeIIient,. except that the
Capital Accounts of the Members 'shall be maintained in accordance with section
4.04 of this Agreement.
7.02 Company Records. .
In addition to the financial reports required by section 7.01, the Company shall
keep the following records:
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(a) . A list setting forth.the.fu1l name and last known mailing address of ~h
Member and the Manager.
(b) . A copy of the Certificate and all amendments thereto.
(c) CopieS of all of the Company's federal, state and local income tax ~
and annual financial statements.
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(d) Copies of the currently effective written operating agreement and all.
amendments thereto, and copies of any operating agreements no longer in
effect.
(e) Minutes of the proceedings of the Members.
7.03 Reports
1'be Compeay shall fumiah.to ita.Members annual financial statemellts, incJuding
a balance .sheet as oftlloendot_ fiscal year and a statement of income and
expcmses for. the fiatyear.ThefiDancial staten1eats shall be.piepm'ed by a
independent certified public.. aCCOuntant on the basis of generally accepted
accounting princi~.. Consist~tly applied or as in agreement between the
Members. Thefinanci8t statements shall be mailed by the Company to each
Member within 120 days after the close of each fisCal year. Unless otherwise
required by this Agreement or by any applicable state or federa11aw, the financial
statements need not be audited or reviewed.
7.04 Fbaaucial Accounts.
The Manager shall establish and maintain one or mote separate bank accounts in
the Company's name with federally insured depository institutions as determined
by the Manager. The Manager may not commingle the Company's t\mds with
. funds of any Member. .
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, ARTICLE vm - DISSOLUTION, LIQUIDATION AND TERMINATION
8.01 Dissol~on.
The. Company shall dissolve and' its affairs shall be wound upon the first to occur
of~e folloWing events:
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. (a). . Entry of an order of judicial dissolution. of the Company under section
.8972 of the Act.
(b) The affinnative vote of the Members holding at least sixty per cent (6()Oh)
of the outstanding Units.
8~02 Liquidation.
On dissol~tion of the Company,- the Manager shall act as liquidator or may
appoint one or more represeDtativ~ or Members as liquidator. The liquidator.
shall proceed diligently to wind up the affairs .of the Company and make final
distribu:tioDs as provided herem and in the Act. The costs of liquidation shall be.
borne. as a Company expense. Until final distribution, the liquidator shall
continue to operate the Company's properties. Steps to be accomplished by the
. liquidator are as follows:. .
(a) AB promptly as possible &fie< dissolDtiL and again after fiualliquiclaliou,
the liquidator shall cause a proper accounting to be made by a recogJ"i'7.ed
firm of independent certified public accountants of the Company's assets, .
liabilities, and operations through the last day of the caleDdar month m . .
which the dissolution occms or the final liquidation is complete, as
applicable. .. . .
(b) The liquidator shall first pay~ satisfy, or discharge tiom Company funds aU
of the debts, liabilities, and obligations of the Company to its crectitori
(including, without limitation, all. expenses incurred in liquidation aDd any
advances descnDed in section 4.03) or otherwise make adequate provision .
for payment and discharge thereof (including, without limitation, the
establishment of a cash escrow fund for contingent liabilities in such
amount 8nd for such term as the liquidator reasonably may detennine)~ all
in accordance with the provisions of the Act as may be applicable.
(c) After all the payments required by subsection (a) of this section have been
. made, any remaining assets of the Company. shall be distn"buted to the
. holders of its Units as follows: .
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(1) The liquidator may sell.any or all Company property, including to
Members, and any.resulting gain or loss from each sale. shall be
computed and allocated to the Capital Account of the Members;
(2) .With respect to all Company property that has not been sold, the
fair market value of. that property shall be determined and the
Capital Accounts. of the holders of the Members shall be adjusted
to reflect the manner in which the unrealized income, gain, loss,
and deduction inherent in property that. has not been reflected in
the Capital Accounts previously would be allocated among Ithe
Members if there were a taxable disposition oftbat property forlthe
fair market value of that property on the date of distribution; and .
. (3) After completing the steps in paragraphs (1) and (2) above, the
remaining assets shall be .distributed to the Members in an amount
. equal to the credit balance in each of their Capital Accounts, ~er
giving effect to all contributions, distributions and allocations for
allperi~. !
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All distributions in kind to the MemberS under this section shall be made subject
to the liability of each distributee for costs, ex~ and liabilities relating to the .
assets distributed in kind theretofore incurred or for which those costs, expenses,
and liabilities shall be allocated to. the distributees pursuant to this section. The
. distribution of cash or property to a Member in accordance with the provisions of
this section constitutes a complete retmn to . the Member of his Capital .
Contributions and a complete distribution to the. Member of his Membership
Interest in all. of the Company's .ProPertY. To the extent that a Member. returns
funds to the Company, the Member has no claim against any other Member for
those funds.
8.04. Deficit Capital AccouDts.
Notwithstanding anything to the contrary contained in this Agreement and
notwithstanding any custom or role of law to the contrary, to the extent that the
. deficit, if any, in the Capital Account of any Member results from, or is
contributable to, deductions and losses of the Company (including non-cash items
such as depreciation), or distributions of money pmsuant to this Agreement to all
Members in proportion to. their respective Percentage Interests, upon dissolution
of the Company such deficit shall not be an asset of the Company and such
Members shall not be obligated to contribute such amount to the Company to
. bring the balance of such Member's Capital Account to zero.
DistributioDs.
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8.05 · Certificate of Dissolution.
On .colppletion of the liquidation of Company assets as provided herein, the
Company is tenninated, and the 'Manager or such other Person as the Act may
require or permit shall file a Gertificate of Dissolution with the Corporation
Bureau, Department of State, Commonwealth of Pennsylvania and take such other
actions as milY be necessary to tenilinate the existence of the Company.
'ARTICLE IX - GENERAL PROVISIONS
9.01 Execution in.Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any partywbose signature appears
. thereon, and all of which together shall constitute one and the same iIistrument.
This A~ent shall become binding when any counterpart or counterpar1s,
individually or taken toge1her~ bear the signatures of all of the initial Members.
9.02 Notic~
Any notice of a meeting or for any other purpose required to be given to a
.Member under provisions of this Agreement or by the Act shall be given either
__. personally or by sending a copy thereof: . \, . . ... . .
(a) By first class or express mail, postage prepaid, or comer service, charges
. prepaid, to the postal address of the Member appearing on the books of the
Company. Notice. shall be deemed to have been given to the Member
entitled thereto when. deposited with the United States Postal Service or
with a courier service for delivery to that Member; or
(b) .By facsimile transmission, electronic mail or other electronic
communication to the Member's. number or.. addtess for receipt of
facsimile tranSmissio~ electronic mail or other electronic communication
supplied by the Member to the Company for pUIpOSeS of communication
with that Member. Notice p~t to this subsection shall be deemed to
have been given to the Member When sent.
9.<<)3 EDtire Agreement.
This Agreement constitutes the entire agreement among the Members with tespect
to the subject matter hereof and supersedeS all prior agreements, express or
implied, oral or written, with respect. thereto. The express teams of this
Agreement control and supersede any custom, course of performance or usage of
trade inconsistent with any of the terms hereof.
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9.04
e
e.
., .
Effect of Waiver or Consent.
.. ,-. .\
A waiver or consent, express or implied, to or of any breach or default by. any
Person in the performance by that Person of his obligations with respect to the
Company is not a consent or waiver to or of any other breach or default in the
performance by. the Person of the same or any other obligations of that Person
with respect to the Company. Failure on the part of a Person to complain of any
act or any Person or to declare any Person in default with respect to the Company,
irrespective of how long that failure continues, does not constitute a waiver by
that .Person of his rights with respect to that default until the period of Ithe
applicable statute oflimitations has run. I
9.05 Amendment.
9.06
9.07
This Agreeinent or the Certificate may be amended from time to time as
determined by the Manager in his sole discretion. A vote of fifty-six ~t
(56%) of the outstanding Units held by Members is required. at an arinual or
special meeting of the Members shall be necessary for Members who are j not
Managers to amend this Agreement or the Certificate. '
BiDding Effect and Rights o( Third Parties.
This Agreement has been adopted to govern the operation of the Company, and .
shall be binding on and inure to the benefit of the Members and their respective
heirs, personal representatives, successors and assigns. This Agreement is
expressly not intended for the benefit of any creditor of the Company or any other
Person. Except and only to the extent provided by applicable statute, no such
creditor or other Person shall have any rights under. this Agreement.
GoverniDg Law.
This Agreement. shall be governed by, interpreted, and enforced in accordance.
with the substantive laWs of the Commonwealth of Pennsylvania (including,
without limitation, provisions concerning limitations of actions)~ without
reference to the conflicts of laws roleS of that or any other jurisdiction, except that
federal law also shall apply to the extent relevant.
9.08 SeverabiUty.
If any provision of this Agreement or the application thereof to any Person or
circmnstance is held invalid or unenforceable to any extent, the remainder of this
Agreement and the application of that provision to other Persons or circumstances
. shall not be affected thereby and that provision shall be enforced. to the greatest
extent pennitted by law.
23
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9.09 · Constnction.
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Wheneyer the context requires, the gender of any word used in. this Agreement
includes the masculine, feminine or neuter, and the number of any. word includes
the . singular or pima!. All references to articles, sections, subsections and
p~graphs '. refer to articles, sections, subsections and paragraphs of this
Agreement i\Dd all references to annexes are to annexesattacbed hereto, each of
which.is made a part hereof for all purposes. The headings of this Agreement are
for convenience 'only and do not fonn a part of this Agreement and sball not affect
its interpretation. .
9.10. No CompaDY Seal.
The Compai'ly shall not have a Company seal and no agRement, instnunent or
other document executed on behalfofthe Company that otherwise would be valid
.. . and binding on the Compariy shall be invalid or not binding solely beCause no
Company ~al had been aftiX~ thereto.
IN WI~SS WHEREOF, the Member of the Company causing this Amended
and Restated J\greement to be executed as of the day and year first above written.
WITNESS:
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Elwood A. Altmeyer, Jr. .
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LynL.Ho . ;{:J- 1
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Lytl L.Ho\1inget
6212 svnng}{nO\\ Drive
Harrisburg,"fA 1111\
BlWood A. Altmeyer, ]r.
3513 Beech Run Road
MecbaDicsburg, 1>> A.. 11050
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Initial Cat>ital.
~on..1ri!>\l\iQl!.-
$100.00
$100.00
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450/0 .
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VERIFICATION
I, Elwood A. Altmeyer, Jr. hereby verify that I have read the foregoing Complaint
and that the information contained therein is true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are subject
to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities.
~~\~C\,~
Elwood A. Altmeyer, Jr.
DATE: '\ -\~- O~
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ELWOOD A. ALTMEYER, JR.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. 06-531' Civil
v.
L YN L. HOLLINGER, BALHA FOOD : CIVIL ACTION - IN LAW AND EQUITY
SERVICES, LLC and BALHA PROPERTY:
MANAGEMENT, LLC,
Defendants
PRAECIPE TO REINSTATE COMPLAINT
TO THE PROTHONOTARY:
Please reinstate the above-captioned Complaint
Respectfully submitted,
LAW OFFICES OF MARK K. EMERY
By:
Mark K. Emery, Esquire
Supreme Court I.D. No. 72787
410 North Second Street
Harrisburg, P A 17101
(717) 238-9883
DATE: October 11, 2006
THE LAW FIRM OF MAY & MAY, P.C.
Robert C. May, Esquire
Identification No.: 65602
4330 Carlisle Pike
Camp Hill, Pennsylvania 17011
(717) 612-0102
Attorneys for Plaintiff
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SHERIFF'S RETURN - OUT OF COUNTY
t
~ASE NO: 2006-05316 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
ALTMEYER ELWOOD A JR
VS
HOLLINGER LYN L ET AL
R. Thomas Kline
t Sheriff or Deputy Sheriff who being
duly sworn according to lawt sayst that he made a diligent search and
and inquiry for the within named DEFENDANT
t to wit:
HOLLINGER LYN L
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
CountYt pennsylvaniat to
serve the within COMPLAINT & NOTICE
On November 15th t 2006 t this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Dauphin County
Postage
18.00
9.00
10.00
35.25
2.22
74.47./
11/15/2006
MARK EMERY
~
So answe. . . .-
R. Thomas Kl: .
Sheriff of Cumberland County
~ '~/u'fo~
Sworn and subscribe to before me
day of
this
A.D.
'In The Court of Common PIE(as o~ Cumberland County, PennsylvanIa
Elwood A. Al tmeyerJr.
vs.
Lyn L. Hollinger
No. 06-5316 civil
N October"; 12! 2006
OW,
, I, SHERIFF OF CIDv1BERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
r~~~~.
Sheriff of Cumberland County, PA
Affidavit ofSemce
Now,
,20_, at
0' cIock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of , 20
COSTS
SERVICE.
1v1ILEAGE
AFFIDAVIT
$
$
i
.
@ffict of tIre ~4e:riff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
ALTMEYER ELWOOD JR
vs
County of Dauphin
HOLLINGER LYN L
Sheriff's Return
No. 1676-T - -2006
OTHER COUNTY NO. 06-CV-5316
AND NOW:November 7, 2006
at 1: OOPM served the within
REINSTATED COMPLAINT
upon
HOLLINGER LYN L
by personally handing
to CHRIS HOLLINGER ADULT SON
1 true attested copy(ies)
of the original
REINSTATED COMPLAINT
and making known
to him/her the contents thereof at 6212 SPRING KNOLL DRIVE
HBG, PA 17111-0000
Sworn and subscribed to
before me this 8TH day of NOVEMBER, 2006
So Answers,
Jf~
Sheriff of Dauphin County, Pa.
~
~'1 ~~
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. 1,2010
Deputy Sheriff
Sheriff's Costs:$35.25 PD 10/16/2006
RCPT NO 222497
WONG
,
. ..
ELWOOD A. ALTMEYER, JR. IN THE COURT OF COMMON PLEAS
PLAINTIFF : OF CUMBERLAND COUNTY
v. : NO. 2006-05316
L YN L. HOLLINGER, BALHA : CIVIL ACTION - IN LAW & EQUITY
FOOD SERVICES, LLC and
BALHA PROPERTY MANAGE-
MENT, LLC
DEFENDANTS
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above captioned action as settled, satisfied,
discontinued, and ended with prejudice.
Respectfully Submitted:
THE LAW FIRM OF MAY & MAY, P.C.
4330 Carlisle Pike
Camp HiH, Pennsylvania 17011
(717) 612-0102
Attorneys for Elwood A. Altmeyer, Jr.
By: ~C.~
Robert C. May, EsqUire
Identification No.: 65602
DATED: December 15, 2006
'.
.. ~
CERTIFICATE OF SERVICE
I, Robert C. May, Esquire, an attorney with The Law Firm of May & May, P.c., hereby
certify that I have served a true and correct copy of the foregoing PRAECIPE on behalf of the
Plaintiff, Elwood A. Altmeyer, Jr., by mailing same to Lyn L. Hollinger's attorney:
Douglas C. Y ohe, Esquire
Latsha Davis Yohe & McKenna, P.C.
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, P A 17050
ROBERT C. MAY, ESQUIRE
Dated: December 15,2006
S. .tJ L J... c,~
19nature: tC~
Robert C. May, Esquire
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