OPERATING AGREEMENT
OF
CRPB INVESTORS, L.L.C.
This Operating Agreement (the Agreement) is made and entered into by
and among those persons executing this Agreement as the Members as set forth on
Schedule A to this Agreement. In consideration of the foregoing and of the
mutual promises and conditions hereinafter set forth, the parties agree as
follows:
ARTICLE 1
Formation of Limited Liability Company
1.1 Company. The Members have formed a limited liability company
pursuant to the Arizona Limited Liability Company Act (the Act"). The name of
the company is CRPB Investors, L.L.C. (the "Company"), with such changes or
variations thereof as may be necessary to comply with the requirements of law or
regulatory bodies in any jurisdiction in which the Company may do business. It
is the intent of the Members that the Company be operated in a manner consistent
with its treatment as a "partnership" for federal and state income tax purposes.
It is also the intent of the Members that the Company not be operating or
treated as a "partnership" for purposes of Section 303 of the United States
Bankruptcy Code. No Member shall take any action inconsistent with the express
intent of the parties hereto as set forth herein.
1.2 Filing. The Articles of Organization have been filed and are in
effect in the State of Arizona. To the extent not provided for in this
Agreement, the Company and its Members shall be governed by the Act.
1.3 Character of Business. The Company shall not engage in any other
business or activity except as set forth in or contemplated by this Agreement.
The business of the Company shall be:
1.3.a. To acquire and take title to real property and to hold
for investment, maintain, develop, manage, improve, lease, sell, dispose of,
transfer, convey, mortgage and otherwise deal with such property;
1.3.b. To enter into, perform and carry out contracts and
agreements which are, in the judgment of the Manager, necessary, appropriate or
incidental to the accomplishment of the business and purposes of the Company;
1.3.c. To engage in all business activities permitted under
the law; and
1.3.d. To do any other acts or things which may be necessary,
appropriate, related or incidental, in the judgment of the Manager, to carry out
the business and purpose of the Company as stated above.
1
1.4 Office and Principal Place of Business. The initial office and
principal place of business of the Company shall be 8603 East Royal Palm Road,
Suite 210, Scottsdale, Arizona 85258, or such substituted or additional place of
business as may be designated by the Manager from time to time.
1.5 Term. The Company's existence shall commence on the date of the
filing of the Articles of Organization and shall be governed by this Agreement
which provides for dissolution of the Company in accordance with Article 9,
dissolution of Company on the earliest to occur of the following:
1.5.a. December 3 1, 2047.
1.5.b. The Members holding not less than two-thirds (2/3) of
the issued and outstanding Units determine that the Company should be dissolved;
or
1.5.c. The Company sells or disposes of all or substantially
all of its interest in the Property and any promissory note, mortgage, deed of
trust, agreement of sale or other assets which the Company may acquire in
exchange for such Property.
1.6 Continuation of Company. Subject to all of the provisions of this
Agreement, the death, withdrawal, resignation, retirement, expulsion,
bankruptcy, insanity or substitution of any Member shall dissolve or terminate
the Company, unless the Members holding not less than two-thirds (2/3) of the
issued and outstanding Units consent to continue the business of the Company
pursuant to the voting procedures described in paragraph 10.2 below.
1.7 Members. The Members shall be as named herein, or any other Person
admitted to the Company as an additional Member. The addresses of the Members
are set forth on Schedule A which is attached hereto and made a part hereof by
this reference.
ARTICLE 2
Definitions
2.1 Definitions. Whenever used in this Agreement the following terms
shall have the meanings described below:
2.1.a. "Adjusted Capital Contributions" shall be the Capital
Contributions paid pursuant to Article 3 of this Agreement at any point, as
decreased from time to time by Distributions pursuant to paragraph 4.1.b below.
2.1.b. "Agreement" shall mean this Operating Agreement
pursuant to which the Company is organized, as the same may be amended from time
to time.
2.1.c. "Affiliate" shall mean, with respect to any Person, (I)
any Person directly or indirectly controlling, controlled by or under common
control with such Person, (ii) any Person owning or controlling 10% or more of
the outstanding voting interests of such Person, (iii) any officer, director, or
general manner of such Person, or (iv) any Person who is an officer, director,
general partner, trustee,
2
or holder of 10% or more of the voting interests of any Person described in
clauses (I) through (iii) of this sentence.
2.1.d. "Capital Account" shall mean a Member's separate
capital account as determined from time to time pursuant to Article 4.
2.1.e. "Capital Contributions " shall mean, with respect to
any Member, the fair market value of any property and the total amount of any
money contributed to the Company by such Member at any point pursuant to Article
3, Capital Contributions.
2.1.f. "Capital Percentage" shall mean the ratio which the
Capital Contributions by each Member on the last day of each calendar month
bears to the total of all Capital Contributions by all Members as of that date,
without regard to Capital Accounts or the number of days during such months in
which a Person was a Member. The respective Capital Percentages of the Members
are set forth in Schedule A opposite each Member's name.
2.1.g. "Cash Available for Distribution" shall mean the excess
of Gross Receipts, after payment of any and all indebtedness currently payable
with respect to the Property, over expenses, costs, cash disbursements, and
other obligations, whether accrued or paid, without deductions for any
depreciation, and less a reasonable allowance for cash reserves for
contingencies and anticipated obligations, including property taxes, insurance,
assessments, capital improvements and replacements, as determined by the
Manager. At such time as the Manager determines that the unused balance of any
such reserves previously retained out of funds which would otherwise have been
Cash Available for Distribution is no longer necessary, the same shall thereupon
be deemed Cash Available for Distribution If during any month of operation
actual Cash Available for Distribution is less than ninety percent (90%) of the
monthly budgeted amount for such Distributions, all subsequent determinations of
Cash Available for Distribution shall be made upon the vote of the Members
holding two-thirds (2/3) of the total issued and outstanding Units herein
2.1.h. "Company" shall mean CRPB Investors, L C organized
pursuant to this Agreement
2.1.i. "Distributions" shall mean Cash Available for
Distribution paid to the Members with respect to any fiscal year of the Company.
2.1.j. "Gross Receipts" shall mean all cash received by the
Company from every source, excluding Capital Contributions and Assessments or
from any Company borrowing.
2.1.k. "Initial Capital Contributions" shall mean the total of
the capital contributions received from the Initial Members.
2.1.l. "Initial Construction Phase" shall mean the period
between the date of this Agreement and the date of 'Substantial Completion as
that term is defined in the lease referred to in paragraph 6.6 below.
3
2.1.m. "Initial Construction Phase Return" with respect to any
Member who has contributed cash to the Company for its Units, means the Adjusted
Capital Contributions in cash of such Member existing from time-to-time during
the Initial Construction Phase of the Property multiplied by an interest rate
equal to ten percent (10%) per annum, cumulative but not compounded. Any such
Returns will be deemed to be a line item expense for purposes of computing Total
Project Costs as that term is defined in the Lease referred to in paragraph 6.6
below.
2.1.n. "Initial Members" shall mean P. B. Bell & Associates,
Inc., CORP, Inc., Cerprobe Corporation and the investor or investors that
contribute funds used to return $768,000 of Cerprobe Corporation's Capital
Contribution.
2.1.o. "Member" shall mean any Person admitted to the Company.
2.1.p. "Majority Vote" shall mean the vote of the Members
representing more than fifty percent (50%) of the Total Outstanding Units.
2.1.q. "Manager" shall mean P. B. Bell & Associates, Inc., an
Arizona corporation. The Manager shall also be a Member.
2.1.r. "Net Losses" shall mean the net losses of the Company
as determined for federal income tax purposes.
2.1.s. "Net Profits" shall mean the taxable income of the
Company as determined for federal income tax purposes, exclusive of net gains or
net losses recognized for federal Income tax purposes in a fiscal year from the
sale or other disposition of all or substantially all of the Property in
dissolution of the Company.
2.1.t. "Property" shall mean the real property as described on
Schedule B hereto and any building, structure or improvements now or hereafter
added thereto or thereon, and any other property, real, personal or mixed, or
any interest therein, thereafter acquired directly or indirectly by the Company
2.1.u. "Person" shall mean any natural person, partnership,
corporation, limited liability company, association or other legal entity.
2.1.v. "Recoupment" shall mean any point in time at which
cumulative Distributions equal one hundred percent (100%) of the total Capital
Contributions made by a Member.
2.1.w. "Total Outstanding Units" shall mean all Units issued
to Members.
2.1.x. "Unit" shall mean one (I) of the total one hundred
(100) ownership Interests outstanding in the Company to be acquired by the
Members and which shall represent the Capital Contribution to the Company
pursuant to Paragraph 3.1, "Capital Contributions." Ownership of Units shall
entitle the holder thereof to the Capital Percentage respecting such interest as
set forth on Schedule A, and an interest in the Net Profits, Net Losses,
credits, deductions, Distributions and any other rights
4
of a Member as specified herein.
ARTICLE 3
Capital Contributions
3.1 Capital Contributions. The Company is authorized to accept an
unlimited amount of Capital Contributions and issue a maximum of one hundred
(100) Units.
3.1.a. The Company will admit as Members such Persons who have
contributed cash, property, or other consideration to the capital of the Company
for such Capital Percentage and Units as set forth on Schedule A hereto, as may
be amended from time to time.
3.1.b. The Company may issue fractional Units.
3.1.c. The Manager shall have the authority to admit the
Initial Members subject to paragraph 3.1.a The Manager shall, upon the admission
of Members, obtain the signature to and acceptance of this Agreement by the
Member and make the appropriate adjustments to Schedule A hereto respecting
Capital Contributions and Capital Percentages.
3.2 Additional Capital Contributions. In the event that the Company is
in need of capital in excess of the contributions set forth in Schedule A for
ordinary and necessary construction costs and for recurring expenses of the
Company such as real estate taxes and assessments, insurance premiums,
accounting and legal fees and similar expenses, additional Capital Contributions
shall be required to be contributed to the Company, to be payable in proportion
to the respective Units of the Members, up to an aggregate maximum of ten
percent (10%) of the Initial Capital Contribution of a Member. To the extent
contributions are needed in excess of such ten percent (10%), a Member shall
only be required to contribute its prorata share upon the vote of the Members
holding two-thirds (2/3) of the total issued and outstanding Units herein.
3.3 Failure to Make Additional Capital Contributions.
3.3.a. If a Member fails to make an Additional Capital
Contribution as required by Paragraph 3.2, Additional Capital Contributions, on
or before the specified payment date, the Manager shall deliver written notice
of such failure to the defaulting Member. If the defaulting Member fails to make
the required Additional Capital Contribution within the time specified in the
notice, such defaulting Member shall remain personally liable for the Additional
Capital Contribution until the Company receives the same and the Manager, to the
extent permitted by law, may at its option and on behalf of the Company: (I)
expel the defaulting Member from the Company by delivery of written notice
thereof to such Member; (ii) extend the time for payment; (iii) bring suit
against the defaulting Member for the amount in default, together with interest
thereon from the day such amount was due at the rate of eighteen percent (18%)
per annum plus collection expenses, including, without limitation, the fees and
disbursements of counsel for the Company; and/or (iv) pursue any other remedy or
course of action which the Manager deems to be appropriate and is permitted by
law.
5
3.3.b. If a Member is expelled, such expulsion shall be
effective upon delivery of the Manager's written notice to the defaulting
Member. A Member who is adjudged a bankrupt may forthwith be expelled from the
Company without prior notice or the necessity of any further action by the
Manager. Upon expulsion, the expelled Member shall cease to have any further
right to vote as a Member or to attend or receive notice of any meetings of
Members or to otherwise participate in any decisions of the Members, the Manager
or the Company In the event the expelled Member is the Manager, then ail
management and administrative powers as manager' shall cease effective as of the
time of expulsion, and a new Manager shall be appointed by those Members holding
two-thirds (2/3) of the Units held by the non-expelled Members. Any expelled
Member shall also cease to participate in or receive any Net Profits, Net
Losses, Distributions, credits or deductions of the Company, commencing at the
time such expulsion occurs and thereafter for the term of the Company. An
expelled Member shall not be entitled to the return of its Adjusted Capital
Contributions to the Company until Recoupment has occurred with respect to all
of the unexpelled Members. The rights of an expelled Member to the return of its
Adjusted Capital Contributions shall be junior in all respect to the
Distributions of the remaining Members and shall be refunded, if at all, only
when all other Distributions to which the other Members are entitled have been
made.
3.3.c. The Manager shall deliver written notice to all Members
of the expulsion of a Member and shall request each Member to advise the
Manager, in writing, whether such Member wishes to acquire all or any of the
Units owned by the expelled Member immediately prior to the expulsion by paying
the delinquent contributions attributable to such Units of the expelled Member.
If more than one Member elects to purchase such Units within the time specified
in the notice, which shall be not less than ten (10) days after delivery of the
Manager's notice, they shall acquire such Units in the proportions that their
respective Units bear to each other and shall pay a proportionate share of the
delinquent contributions attributable to the Units of the expelled Member. If
none of the Members elects to acquire the Units or if some or all of the Members
elect to acquire only a portion of such Units, the Manager may purchase the
remaining Units or may sell such Units to a third person in consideration of the
fulfillment of all the following conditions: (I) payment of all delinquent
capital contributions attributable to the Units to be purchased; (2) written
agreement to pay all future capital contributions attributable to the Units to
be purchased; and (3) execution of a counterpart of this Agreement as a Member
If no third party purchases the Units of the expelled Member, the Company shall
have the option to purchase the Units by paying the delinquent contributions
attributable to such Units. In the event the Units of an expelled Member are
purchased as described above, the rights of an expelled Member to the return of
its Adjusted Capital Contributions shall be junior in all respects to the
Distributions of the remaining Members and shall be refunded, if at all, only
when all other Distributions to which the other Members are entitled have been
made.
3.4 Use of Capital Contributions. All Capital Contributions
shall be expended in furtherance of the business of the Company. No interest
shall be paid on Capital Contributions, except as otherwise permitted in this
Agreement. Pending the use of Capital Contributions in Company operations, such
Contributions will not be commingled with the funds of any other Person or
entity, except that the funds may be deposited in an account in the name of the
Company in such bank or other financial institution as the Manager may deem
appropriate or in a money market mutual fund or such other investments or
securities as determined by the Members holding not less than two-thirds (2/3)
of the issued and outstanding Units. 6
3.5 Loans. If the Manager at any time or from time to time, determines
that the business of the Company requires funds for any reason in addition to
those contributed by the Members, one or more Members may lend such required
funds to the Company in such amounts as determined by the Manager but in
proportion among the Members willing to make loans according to their respective
Units owned herein, and at an annual interest rate equal to the prime interest
rate in effect at Bank of America plus two (2) percentage points, cumulative but
not compounded unless loans can be obtained elsewhere at more favorable terms.
Said loans shall be payable out of the general funds of the Company and shall in
no event be treated as contributions to the capital of the Company.
ARTICLE 4
Net Profits, Net Losses and Distributions
4.1 Allocation of Distributions. From and after the date of this
Agreement and until termination of the Company, no Distributions to the Members
shall be made except as provided in this Article. The Manager shall, from time
to time as it may deem appropriate, determine the amount of Cash Available for
Distribution, if any Distributions will be allocated among the Members in the
following manner:
4.1.a. Ninety-nine percent (99%) to the Members who have
Adjusted Capital Contribution balances from cash contributions prorata according
to their respective Capital Percentages and one percent (1%) to the Manager
until all such Members receive Distributions in an amount equal to their Initial
Construction Phase Return; then
4.1.b. To the Members in accordance with their respective
Capital Percentages.
4.2 Distributions and Admissions of Members. Upon the admission of a
Member, the share of Distributions allocable to such Member shall be determined
consistent with the portion of the year during which it was a Member.
4.3 Distributions and Withdrawal of Members. Although the Manager may
make Distributions with respect to the Units during the term of the Company, no
Member shall have the right to withdraw from the Company or to demand any
Distributions or a return of all or any part of its Capital Contributions. No
Member, by reason of its withdrawal from the Company, shall receive any
Distributions other than in such amounts and at such times as it would have
received had such Member not withdrawn from the Company.
4.4 Net Profits, Net Losses, Credits and Deductions.
4.4.a. Except as provided in subparagraph 4.4.c below, Net
Profits, Net Losses, credits and deductions of the Company with respect to each
fiscal year in which there are Distributions to the Members shall be allocated
among the Members (including the Manager) in the same ratio that Distributions
are allocated in Paragraph 4.1, Allocation of Distributions, in such fiscal
year. If there are no Distributions in any given fiscal year, Net Profits, Net
Losses, credits and deductions of the Company with respect to such fiscal year
shall be allocated among the Members (including the Manager)
7
in the same ratio that Distributions would be allocated pursuant to Paragraph 4
1, Allocation of Distributions, in such fiscal year, taking into account the
cumulative Distributions made by the Company prior to such fiscal year.
4.4.b. If any Member is not a Member for an entire fiscal
year, or if its Capital Percentage changed during such year, the share of Net
Profits, Net Losses, Distributions, credits and deductions of the Company
allocable to such Member shall be determined consistent with the portion of the
year during which it was a Member and by taking into account its varying Capital
Percentages.
4.4.c. Net gains or net losses recognized for federal income
tax purposes in a fiscal year from the sale, including an installment sale or
other disposition of all or substantially all of the Property in dissolution of
the Company shall be allocated among the Members in the following manner:
4.4.c.1. Net gains shall be allocated to the Members
to increase their Capital Accounts by an amount equal to the net reductions made
to their Capital Accounts by reason of the allocation of Net Losses and other
items which, under Paragraph 4.5, capital Accounts, resulted in decreases in the
Members' Capital Accounts during the term of the Company (provided that if the
amount of net gains shall be Insufficient to accomplish the foregoing, then the
net gains shall be apportioned among the Members in the ratios that the Members
respective net reductions bear to each other).
4.4.c.2. Any balance of the net gains and any net
losses shall be allocated among the Members in the same ratio that Distributions
would be allocated among the Members pursuant to Paragraph 4.1, "Allocation of
Distributions, " as though there were no dissolution of the Company in such
fiscal year, taking into account the cumulative Distributions made prior to such
fiscal year.
4.5 Capital Accounts. The Company shall maintain a separate Capital
Account for each Member in accordance with the rules set forth in Section
1.704-1(b)(2)(iv) of the Treasury Regulations under the Internal Revenue Code
Subject to those rules, Capital Account shall mean the amount of any money paid
by the Member to the Company, increased by: (I) the fair market value of
property contributed by the Member to the Company (net of liabilities secured by
the property or to which the property is subject); and (ii) the net amount of
any income allocated to the Member; and decreased by: (a) the amount of money
paid to the Member; (b) the fair market value of property distributed to the
Member by the Company (net of liabilities secured by the property or to which
the property is subject); (c) the Member's share of expenditures of the Company
described in Section 705(a)(2)(B) of the Code (including, for this purpose,
losses which are nondeductible under Section 267(a)(1) or Section 707(b) of the
Code); (d) the Member's share of amounts paid or incurred by the Company to
organize the Company or to promote the sale of (or to sell) an interest in the
Company (except to the extent properly amortizable for tax purposes); and (e)
the net amount of loss allocated to the Member. The Capital Account of each
Member shall be calculated on December 31 of each calendar year.
4.6 Capital Account of Substituted Member. The Capital Account of a
substituted Member shall be, with respect to any Units transferred to such
substituted Member pursuant to Article 8, "Transfer of Company Interests," the
Capital Account of the transferor Member determined in accordance with Paragraph
4.5, "Capital Accounts," as of the transfer date on which the substitution is
8
effective.
ARTICLE 5
Management
5.1. Manager's Powers. Subject to the Members' approval of the major
Decisions as provided in paragraph 5.2 below, the Manager shall have the
exclusive right, power and duty to manage the business and affairs of the
Company, with all powers necessary, advisable or convenient to that end. The
powers and duties of the Manager shall include, but are not limited to, the
following:
5.1.a. To execute all documents and do all things necessary to
acquire the Property, or to execute any other documents required in connection
with the acquisition, maintenance, development, operation or sale of the
Property or reasonable or necessary in connection with the Company business;
5.1.b. To enter into a construction loan for the Company for
$6,232,000 bearing interest at L.I.B.O.R plus 240 basis points or the prime rate
plus one-half percent (l/2%)from Guaranty Federal Bank with a five (5) year term
consisting of one (1) two (2) year period of interest-only and three (3) one (1)
year extension options thereafter with amortization of principal to commence
after the first two (2) years; the Manager is hereby authorized to execute such
promissory notes, security agreements and other loan documentation as necessary
to consummate the foregoing loan.
5.1.c. To employ or engage on behalf of the Company such
Persons, as in the Manager's exclusive discretion or judgment may be deemed
advisable for the proper operation of the business of the Company, upon such
terms and for such compensation as the Manager shall determine, provided that
such compensation paid by the Company shall not exceed the cost of obtaining
similar services from third parties;
5.1.d. To make, execute, acknowledge and deliver such
certificates, instruments and documents as may be required by, or may be
appropriate under, the laws of the State of Arizona in connection with the
conduct of business by the Company;
5.1.e. To enter into such contracts and execute, acknowledge
and deliver all instruments in connection therewith which the Manager deems
necessary to effectuate the powers set forth herein and to take all such action
in connection therewith as the Manager deems necessary or appropriate;
5.1.f. To establish and maintain operating bank accounts and
reserves for such purposes and in such amounts as the Manager deems appropriate
from time-to-time and in their discretion designate persons to have signature
authority on such accounts;
5.1.g. In addition to the specific rights and powers herein
granted, to engage in any activities necessary or incidental to the
accomplishment of any of the purposes and business which the Company was formed
to conduct;
5.1.h. To protect and preserve the title and interest of the
Company with respect to the
9
Property and other assets now or hereafter owned by the Company;
5.1.i. To pay from the funds of the Company, before
delinquency and prior to the addition thereto of interest or penalties, all
taxes, assessments, rents and other impositions applicable to the Property and
other assets now or hereafter owned by the Company and undertake, when approved
by the Members holding at least two-thirds (2/3) of the Units, any action or
proceeding seeking to reduce such taxes, assessments, terms or other
impositions;
5.1.j. To retain or employ and coordinate the services of all
contractors, approved architects, engineers, accountants, attorneys and other
professional persons in connection with the construction of buildings and other
improvements;
5.1.k. To maintain all funds of the Company in an
interest-bearing account or accounts established by the Manager with a bank or
banks chartered in the United States as may from time to time be selected by the
Manager;
5.1.1. When permitted or required by this Agreement or
otherwise approved by the Members, to make distributions periodically to the
Members in accordance with the provisions of this Agreement,
5.1.m. To supervise or assure the prompt compliance with all
present and future laws, ordinances, orders, rules, regulations and requirements
of all federal, state and municipal governments, courts, departments,
commissions, boards and officers pertaining to the Company or the Property;
5.1.n. To make application for and obtain all necessary
governmental approvals and permits and perform such acts as shall be necessary
to effect compliance by the Company with all laws, rules, ordinances, statutes
and regulations of any governmental authority applicable to the renovation and
operation of the Property;
5.1.o. To maintain all books and records of the Company in
accordance with good and acceptable accounting practices;
5.1.p. To reimburse itself from the Company funds for its
reasonable expenses incurred in connection with its duties under this Agreement
but only to the extent provided for in the annual operating budget and
construction budget approved by the Members as provided in paragraphs 5.2.g and
5.2.h. below;
5.1.q. To perform any other obligations provided elsewhere in
this Agreement to be performed by the Manager; and
5.1.r. To give the Company's indemnification to the entity
insuring title to the Property to the extent required by such entity to
indemnify said title company for any losses caused by mechanic and materialman
liens created by construction activity begun before the closing of the
construction loan.
5.2 Major Decisions. Notwithstanding anything contained in
paragraph 5.1 above to the
10
contrary, the following Company decisions ("Major Decisions") shall require the
vote of the Members holding at least two-thirds (2/3) of the issued and
outstanding Units herein:
5.2.a. Any sale, transfer or disposition or refinance of all
or any portion of the Property;
5.2.b. The release of any Retentions as that term is defined
under the construction contract with MT Builders LLC;
5.2.c. Following Substantial Completion of the Property, any
additional contracts covering the construction of any improvements or repairs or
alterations to the Property;
5.2.d. Except as provided in paragraph 3.1.c. above, the
admission of additional Members;
5.2.e. The initiation of any lawsuit or other legal proceeding
that involves an obligation in excess of 550,000;
5.2.f. The execution of the construction contract or contracts
for the Property;
5.2.g. Each annual operating budget;
5.2.h. The budget for the construction of the Property;
5.2.i. Except for the construction loan and the
indemnification of the title insurance company as provided in paragraph 5.1.r.
above, the mortgaging or the placing of any encumbrances on the Property or the
granting of any options, rights of first refusal, liens, pledges or security
interests, or the creation of any debt, guarantee or financial obligation in
excess of 525,000. No debt or other obligation shall be contracted or liability
incurred by or on behalf of the Company except by the Manager;
5.2.j. The filing or arbitrating of, adjusting, settling or
compromising of, or entering a confession of judgment with respect to any claim,
obligation, debt, demand, suit or judgment by or against the Company in an
amount greater than 550,000;
5.2.k. The construction of any capital improvements other than
those reflected in the construction budget;
5.2.1. The extension of credit to, or execution of any loan,
bond, guarantee, indemnity or accommodation endorsement relating to the debt or
obligation of another party;
5.2.m. Making an assignment for the benefit of creditors or
filing a petition under federal bankruptcy law or any state insolvency law;
5.2.n. Changing the designation of the holder of legal title
to the Property and any other property owned by the Company;
11
5.2.o. Consenting to any rezoning or subdivision of the
Property or any other material change in the legal status thereof;
5.2.p. Entering into any agreement or arrangement with any
Member or Affiliate of any Member or reimbursing any expense or expenditure of
any Member or Affiliate unless such agreement, arrangement, expense or
expenditure is specifically disclosed and authorized in the construction budget
or the operating budget; and
5.2.q. The removal or appointment of any Person as "Manager"
of the Company or as manager of the Property except, however, that P. B. Bell &
Associates, Inc. shall in no event be removed as Manager until the earlier of
(I) October 5, 1996 or (ii) the satisfaction of the conditions of paragraph 8.6
a. below. If the Manager is removed pursuant to this paragraph 5.2.q., then
Cerprobe shall attempt to obtain from the lender the release of all the
guaranties on the construction loan of the Company and if unable to obtain those
releases, then to indemnify any and all guarantors from any losses under those
guaranties If the Manager is removed under this subparagraph 5.2.q after the
closing of the construction loan and Cerprobe Corporation is able to obtain a
release of the guaranties, the Manager shall return to the Company the Loan
Guaranty Fee less that pan of the Loan Guaranty Fee that equals the product of
the Loan Guaranty Fee multiplied by a fraction, the denominator of which shall
be 180 days and the numerator of which shall be the number of days that have
elapsed since the date of the closing of the construction loan. If the
guaranties are not released and the Manager only receives an indemnity from
Cerprobe Corporation, then the Manager shall not refund any of the Loan Guaranty
Fee.
5.3 Other Activities and Certain Transactions. The Manager shall devote
to the Company such time as is necessary to the proper conduct of the Company's
business The Manager and the Members shall at all times be free to engage
generally in all aspects of real estate ownership and management, including the
purchase, sale, development and management of real estate and the formation of
partnerships, joint ventures, other investment programs similar to the Company,
or in any other business or venture of every nature and description, even though
said other activities and organizations may compete or tend to compete with the
Company. The Manager and the other Members shall have no duty or obligation to
present to the Company any real or personal properties, or opportunities in
connection therewith, which they may discover. Neither the Company nor its
Members shall have any right by virtue of this Agreement in or to such other
ventures, partnerships or entities or to the income or profits derived
therefrom, provided, that this Paragraph shall not be construed to either
contract or expand the duty of the Manager to the Members or the Company.
5.4 Indemnification and Exculpation of Manager. The Manager shall not
be liable to the Company or the Members for or as a result of any act, omission
or error in judgment which was taken, omitted or made by the Manager in the
exercise of its judgment in good faith under this Agreement and which does not
constitute fraud, gross negligence or breach of fiduciary duty by the Manager.
The Manager may consult with such legal or other professional counsel as it may
select. Any action taken or omitted by it in good faith reliance on, or in
accordance with, the opinion or advice of such counsel shall be full protection
and justification to the Manager with respect to the actions taken or omitted.
The Company will defend, reimburse and indemnify and save and
hold the Manager
12
harmless from any liability, loss or damage and any and all costs and expenses
reasonably incurred by it in connection with, or any action, suit or proceeding
of whatever nature threatened or brought against it, or in which it may be
involved as parties or otherwise, by reason of any act performed or omitted to
be performed by it in connection with the business of the Company authorized by
this Agreement, whether or not the Manager continues to be such at the time of
including such costs and expenses, including amounts paid or incurred by it in
connection with reasonable settlements of any such claim, action, suit or
proceeding, provided such act or omission was done, in the good faith judgment
of the Manager, in the best interests of the Company and did not constitute
fraud, gross negligence, breach of fiduciary duty or misconduct by the Manager.
5.5 Arbitration. In the event the fair market value of the Units of a
Terminated Member (as hereinbelow defined) cannot be agreed upon, any Member may
provide the other Members with written notice (the "Arbitration Notice") that
the decision must be submitted to binding arbitration. Each party shall name an
arbitrator within twenty (20) days after either party notifies the other in
writing that there is such a dispute existing, and the two (2) arbitrators shall
name a third (3rd) arbitrator. If either party fails to select an arbitrator
within twenty (20) days as required herein, or if the two (2) arbitrators fail
to select a third (3rd) arbitrator within fifteen (15) days after both have been
appointed, then the then Presiding Judge of the Maricopa County Superior Court
shall appoint such other arbitrator or arbitrators. The arbitrators shall render
a decision within sixty (60) days after their appointment and shall conduct all
proceedings pursuant to Arizona Revised Statutes, Section 12-1501 through
Section 12-1517, or the successor statutes, and the Rules of the American
Arbitration Association governing commercial transactions then existing, to the
extent that such rules are not inconsistent with said statutes and this
Agreement. Judgment upon the award rendered under arbitration may be entered in
any court having jurisdiction. The cost of the arbitration procedure shall be
borne by the losing party or, if the decision is not clearly in favor of one
party or the other, then the costs shall be borne as determined by such
arbitration proceeding.
5.6 Tax Matters Officer. The Manager will act as "Tax Matters Partner"
in accordance with the Internal Revenue Code, or any successor statute.
ARTICLE 6
Contractual Relationships With Manager, Members and Affiliates
6.1 Development Fee. The Company shall pay a Development Fee to P. B.
Bell & Associates, Inc., the Manager, in the amount of Two Hundred Thirty
Thousand Dollars ($230,000) for its services and assistance in the acquisition
of the Property. The Fee shall be paid Fifty Seven Thousand Five Hundred Dollars
($57,500) upon acquisition of the Property by the Company and the balance in
eight (8) equal monthly installments of Twenty One Thousand Five Hundred Sixty
Two and 50/100 Dollars ($21,562.50) beginning thirty (30) days from the date of
closing on the Property.
6.2 Construction Fee. The Company shall pay a Construction Fee to MT
Builders, LLC, an Affiliate of the Manager, in the amount of Two Hundred Fifty
Thousand Dollars ($250,000) for its services In supervising the construction of
the improvements on the Property pursuant to a separate construction Contract
with such Affiliate The Fee shall be paid Sixty Two Thousand Five Hundred
13
Dollars ($62,500) upon commencement of construction of the improvements by the
Company and the balance in eight (8) equal monthly installments of Twenty Three
Thousand Four Hundred Thirty Seven Dollars and 50/100 Dollars ($23,437.50)
beginning thirty (30) days from the date of commencement of construction.
6.3 Management Fee. So long as P. B. Bell & Associates, Inc. is the
Manager of the Company, the Company will pay a Management Fee to P. B Bell &
Associates, Inc., the Manager, for its services in managing the Property
pursuant to a separate maintenance contract with P. B Bell & Associates. The Fee
will be equal to three-fourths of one percent (.75 %) of the triple-net lease
payments received by the Company payable monthly.
6.4 Loan Guarantee Fee. The Company shall pay a Loan Guarantee Fee to
P. B. Bell & Associates, Inc., the Manager, or to the principals of the Manager
as appropriate, equal to one percent (I %) of the face amount of any loan for
the project contemplated hereunder that the Manager or said principals guaranty.
Said Fee shall be paid in cash upon the Closing of the loan involved.
6.5 Reimbursement. The Company shall reimburse the Manager for the
costs incurred by the Manager for any organization expenses paid by them prior
to or after formation of the Company, including but not limited to earnest
deposits, legal, engineering and accounting fees, appraisal fees, environmental
engineering fees and other acquisition costs, mailing, copying costs and any
direct general and administrative expenses incurred by the Manager directly
related to the formation of the Company and acquisition, development and
operation of the Property. All such reimbursements shall be made within sixty
(60) days of submission of substantiation, cash permitting. After formation of
the Company, all expenses of the Company shall be billed directly to, and paid
by, the Company where practical. The Manager shall receive reimbursement of the
costs incurred for services such as accounting and other extraordinary services
which would normally be performed directly for the Company by independent
parties, but which the Manager may provide. No amounts charged to the Company
will exceed those which the Company would be required to pay to independent
parties for comparable services in the greater Phoenix, Arizona metropolitan
area.
6.6 Lease. Concurrently with the execution of this Agreement, the
Company will enter into a separate agreement with Cerprobe Corporation, a
Member, for the lease of the Property with improvements.
ARTICLE 7
Accounts, Books, Reports and Banking
7.1 Accrual Basis. The Company shall utilize the accrual method of
accounting.
7.2 Fiscal Year. The fiscal year of the Company shall be the calendar
year ending December 31 of each year.
7.3 Books. The Manager shall keep, at the expense of the Company, books
of account for the Company adequate for its purposes. The books of account shall
be maintained at the principal office
14
of business of the Company and shall be open at all reasonable times to
inspection and copying by any Member upon advance notice to the Manager and as
otherwise provided in the Act. The books of account may, at the sole discretion
of the Manager, be compiled or reviewed at the end of each accounting year by an
accountant selected by the Manager.
7.4 Reports. The Manager shall make available to each Member, within
one hundred and twenty (120) days after the end of the Company's fiscal year, an
annual report (unaudited) of the activities of the Company during the period
covered to be prepared at the Company's expense. The Manager shall also provide
a monthly operating statement within thirty (30) days of the end of each month
reflecting the revenues and expenses of the Company for and during the preceding
month. The Manager also shall prepare and deliver to the Members for approval an
annual operating budget no later than December 1 of each year reflecting in
reasonable detail the projected revenues and expenses of the Company for the
next succeeding calendar year. The Manager agrees that it shall not authorize or
incur any debts, liabilities or expenses on behalf of the Company in excess of
the total amount projected therefor without the approval of the Members as
provided in paragraphs 5.2.g. and 5.2.h.
7.5 Income Tax Returns. The Income Tax Returns for the Company shall be
prepared by the accountant employed by the Manager at the expense of the
Company. A statement of each Member's share of income, credits, deductions,
etc., completed by said accountant in a final form which is satisfactory to the
Manager and to said accountant, shall be sent to all of the Members within
thirty (30) days after completion, but no later than March 15 of each year.
7.6 Access to and Maintenance of Records. The Manager shall maintain a
list of the names and last known business addresses of all Members at the
principal office of the Company. The list shall be made available for the review
of any Member or its designated representative at reasonable times and, upon
request either in person or by mail, the Manager shall furnish a copy of such
list to any Member or its designated representative for the cost of reproduction
and mailing.
ARTICLE 8
Transfer of Company Interests
8.1 General Restrictions on Transfer. A Member shall not assign,
transfer, hypothecate or sell all or any of its Units or other rights or
benefits in the Company or in any way pledge, grant a security interest in or
alienate or encumber its interest in the Company, except as permitted in
Paragraphs 8.2, "Permitted Transfers and Substitutions," and 8.3, "Right of
First Refusal," and any document or instrument or other action purponing to do
so shall be null and void.
8.2 Permitted Transfers and Substitutions. Each Member may sell, assign
or transfer its Units in the Company, without the consent of the Members, to any
(I) trust of which the Member is a Grantor or Trustee and a beneficiary (ii)
corporation which is wholly-owned by the Member; (iii) one or more Persons who
own one hundred percent (100%) of the equity or beneficial interest of the
Member, if the Member is a corporation, partnership or trust; (iv) partnership,
limited liability company or corporation of which the equity or beneficial
owners are the same Persons (and in the same percentages) as the equity or
beneficial owners of the Member, if the Member is a partnership, limited
15
liability company, corporation or trust; or (v) private foundation; provided,
however, that any Person, partnership, limited liability company, corporation or
trust entitled to receive such a transfer shall succeed to all the rights and
obligations of the former Member as a substituted Member only upon satisfaction
of the requirements of Paragraph 8.4, "Substitution of Members."
8.3 Right of First Refusal. Any Member desiring to dispose of all or
any of its Units in the Company (the "Offering Member") in any manner other than
as provided in Paragraph 8.7, "Permitted Transfers and Substitutions," shall
comply with the following:
8.3.a. Such Member shall deliver notice to the Company and the
other Members of such proposed disposition. The notice must include (I) a copy
of the offer, which must be a bona fide offer, (ii) the name of the proposed
transferee, (iii) the price offered for the Units and any other terms and
conditions of the proposed disposition which the Members may request. Upon
receipt of such notice of proposed disposition, each such Member shall have the
option for a period of thirty (30) days from the delivery of the notice of
proposed transfer to purchase such Units at the same price and on the same
payment terms as specified in such notice. If more than one Member elects within
the foregoing time period to acquire such Units, such Members shall purchase
such Units in the proportions that their respective Capital Percentages bear to
each other. No Member shall be required to dispose of any portion of its Units
unless the Company and other Members, individually or collectively, agree to
acquire all of the Units it proposes to dispose.
8.3.b. If the Members do not exercise their options to
purchase the Units of the Offering Member, then the Offering Member may sell
said Units not purchased by the other Members within sixty. (60) days of the end
of the thirty (30) day option period to the proposed transferee at the price and
on the terms and conditions originally stated in the notice of proposed
transfer. If such a sale is consummated, the transferee shall become a
substituted Member only upon satisfaction of the requirements of Paragraph 8.4,
"Substitution of Members." If the sale is not consummated within such sixty (60)
day period, then the restrictions of Paragraph 8.1 shall again be in full force
and effect with respect to the Units of the Offering Member.
8.4 Substitution of Member. No assignee or transferee of a
Unit or any fraction thereof shall have the right to become a Member without the
consent of the Members holding two-thirds (2/3) of the issued and outstanding
Units (which consent may be withheld at the sole discretion of each Member) and
until the assignee assumes all of the obligations and accepts and adopts in
writing all of the terms and provisions of this Agreement, as the same may have
been amended.
8.5 Events of Termination of a Member. Except as otherwise
approved by the specific written consent of all of the remaining Members, a
Person ceases to be a Member ("Terminated Member") upon the occurrence of any of
the following events: death, disability, resignation, retirement, expulsion,
adjudication of bankruptcy, insolvency, insanity or incompetency, making an
assignment for the benefit of creditors, or the dissolution or termination of a
Member which is a corporation, limited liability company or partnership. If a
Member that is an individual dies, his or her personal representative,
administrator or trustee or, if he or she is adjudicated incompetent or insane,
his or her guardian or conservator, or if a Member is adjudicated a bankrupt,
its bankruptcy estate, shall have the rights of the Member for settling or
managing the estate. The death, withdrawal, resignation, retirement,
16
expulsion, bankruptcy, insanity or substitution of a Member shall dissolve the
Company unless the Members holding at least two-thirds (2/3) of the issued and
outstanding Units consent to continue the business of the Company pursuant to
the voting procedures described in Paragraph 10.2 below. If such Members elect
to continue the business of the Company then the remaining Members shall have
the option of purchasing the interest of a Terminated Member at its then agreed
upon fair market value. The remaining Members shall have the right to pay such
purchase price with a minimum of ten percent (10%) down, the balance in annual
payments over a five (5) year period with interest equal to the prime rate in
effect at Bank of America plus two percent (2%), cumulative but not compounded.
In the event the fair market value of the Units of a Terminated Member cannot be
agreed upon, any Member may provide the other Members with written notice (the
"Arbitration Notice") that the decision must be submitted to binding arbitration
pursuant to paragraph 5.5 above.
8.6 Cerprobe's Option to Purchase RCORP's and Manager's Interest. The
Units of P. B. Bell & Associates. Inc. ("Bell") and RCORP, Inc. ("RCORP") may be
purchased by Cerprobe Corporation at certain times and under certain events as
follows:
8.6.a. The Manager and RCORP each agree that it shall cause
the following events to occur not later than October 5, 1996:
8.6.a.1. The contribution of sufficient equity from a
subsequent Member investor to return $768,000 of the Initial Capital
Contribution of Cerprobe Corporation; and
8.6.a.2. The closing of a construction loan
sufficient to construct the building and otherwise improve the Property as
required under the Lease referred to in paragraph 6.6 above when such loan
proceeds are added to the then remaining Capital Contributions of the Company.
8.6.b. In the event the Manager or RCORP fails to complete
either of these two events in the time provided, the Manager and RCORP, Inc.
shall be in default hereunder. Unless and until such default is cured, all
voting rights of the Manager and RCORP, Inc. hereunder shall immediately be
suspended and Cerprobe Corporation shall have the right % be and Cerprobe is
hereby appointed as attorney-in-fact for the Manager and RCORP to cast all votes
with respect to the Units held by the Manager and RCORP and to make all
decisions and to grant or withhold all approvals that otherwise could be
exercised, cast, made, granted or withheld by the Manager and RCORP until such
time as a substitute Manager is elected as provided herein. Manager and RCORP
expressly agree that neither of them shall have the right to cure such default
except upon the approval of Cerprobe which it may grant or withhold in its sole
and absolute discretion.
8.6.c. Additionally, in the event the Manager or RCORP fails
to complete either of the two events listed in 8.6.a. above in the time
provided, the Member Cerprobe Corporation or its designee, without further
notice to or approval of the Manager, shall then have the right, for a period of
ninety (90) days from such event of default, to purchase the interest of the
Manager and RCORP in the Company for the purchase price of One Dollar (51.00) to
be paid in cash and to remove Bell as the Manager of the Company and to appoint
itself or any other Person that is a member according to Cerprobe's sole and
absolute discretion. If Cerprobe does not exercise this purchase right within
said ninety (90) day period, said right shall lapse. If Bell and RCORP are
bought out pursuant to these provisions, the parties agree
17
as follows:
8.6.c.1. RCORP and Bell shall execute and deliver to
Cerprobe or its designee on demand such documents and instruments as Cerprobe
deems necessary to effect the transfer to Cerprobe or its designee the Units
held by Bell and RCORP;
8.6.c.2. If the construction loan has been closed but
the investor funds required under paragraph 8.6.a.1 above have not been obtained
and contributed to the Company, then Cerprobe shall agree to indemnify Bell and
any and all guarantors from any losses under the guaranties on the construction
loan.
8.6.c.3. Cerprobe agrees to pay any remaining
reimbursements due Bell pursuant to paragraph 6.5 above; and
8.6.c.4. Bell agrees to pay to the Company any Loan
Guaranty Fee that Bell may have received pursuant to paragraph 6.4 above.
ARTICLE 9
Dissolution of Company
9.1 Distribution on Dissolution. In the event of a dissolution of the
Company in accordance with Paragraph 1.5 "Term," the Company shall be dissolved,
wound-up and liquidated and the proceeds of such liquidation shall be applied
and distributed in the following order of priority:
9.1.a. to the payment of the lawful debts and liabilities of
the Company (other than any loans or advances that may have been made by the
Members to the Company) and the expenses of dissolution, winding-up and
liquidation; then
9.1.b. to the establishment of any reserves which the
liquidator may deem reasonably necessary for any contingent or unforeseen
liabilities or obligations of the Company or the liquidator arising out of or in
connection with the Company. The liquidator shall pay such reserves to an escrow
agent selected by the liquidator to be held by such agent for the purpose of
disbursing such reserves in payment of any of the aforementioned contingencies,
and, at the expiration of such period as the liquidator shall deem advisable, to
distribute the balance thereafter remaining in the manner hereinafter provided;
then
9.1.c. to the repayment of any loans or advances that may have
been made by any of the Members to the Company; provided that if the amount
available for such repayment shall be insufficient, then prorata on account
thereof.
9.1.d. to the Members that have net balances in their then
existing Capital Accounts until all of such balances have been reduced to zero;
provided that the foregoing Distributions shall be allocated to each Member in
the ratio that the Member's Capital Account bears to the Capital Accounts of ail
other Members having net balances in their Capital Accounts and provided further
that if any
18
Member's Capital Account has a deficit balance (after giving effect to all
allocations for the current taxable year), such Member shall contribute to the
capital of the Company the amount necessary to restore such deficit balance to
zero.
9.2. Liquidation. If the Company is dissolved for any of the reasons
stated in paragraph 1.5, a Manager or some other Person selected by the vote of
the Members holding at least two-thirds (2/3) of the Units hereunder, shall act
as liquidator, to wind up the business affairs of the Company. The liquidator
shall have full power, authority and duty to sell and assign any or all of the
Company's assets and to pay or cause to be paid the Company's debts, liabilities
and obligations as provided in paragraph 9.1 above. The liquidator shall
immediately commence to wind up the Company affairs and shall liquidate the
assets of the Company as promptly as possible, but in an orderly and
businesslike manner so as not to involve undue sacrifice or injury to the
Company.
ARTICLE 10
Rights of Members
10.1 Matters upon which Members May Vote. Members shall have the right
to vote upon certain matters affecting the Company under the terms and
conditions set forth in Paragraph 10.2, "Voting Procedures and Meetings of the
Members." Action shall be taken on the following matters if the Members vote in
favor of such action by the vote of the Members holding at least two-thirds
(2/3) of the issued and outstanding Units hereunder:
10.1.a. Amendment of this Agreement;
10.1.b. Selection of a liquidator in the event of dissolution
of the Company if there is no Manager;
10.1.c. To elect a new Manager in the event of the resignation
or removal of P. B. Bell & Associates, Inc. as Manager.
10.2 Voting Procedures and Meetings of the Members.
10.2.a. Any Member holding more than ten percent (10%) of the
issued and outstanding Units may at any time call a meeting of the Members, or
call for a vote without a meeting of the Members, on matters on which the
Members are entitled to vote. The Manager shall call for such a meeting or vote
following receipt of written request for such a meeting of the Members ("Notice
Date"). Within two (2) days of such Notice Date, the Manager shall notify all
Members of record as of the Notice Date as to the time and place of the Company
meeting, if called, and the general nature of the business to be transacted at
such meeting.
19
ARTICLE 11
Representations and Warranties of Members
11.1 Representations and Warranties of Member. The Members hereby
represent, warrant and covenant, each to the others, that the Member has
received, studied and independently evaluated the documents listed on Schedule C
hereto and each Member understands the terms and conditions of the transactions
evidenced by such documents and is capable of understanding real estate and
investment matters generally.
ARTICLE 12
General
12.1 Notices. All notices, consents, requests, demands and offers
required or permitted to be delivered pursuant to this Agreement will be in
writing and will be considered properly delivered when personally delivered,
telecopied or delivered by professional courier service to the party entitled
thereto or if mailed, then three (3) business days after mailing by certified
United States mail, postage prepaid, return receipt requested, addressed, to a
Manager or to a Member, to the address appearing on Schedule A to this
Agreement.
12.2 Further Documents. Each of the Members for itself, his or her
heirs, personal representatives, successors and assigns hereby covenants and
agrees that such Member shall from time to time and at such time as may be
required, execute such further agreements, supplemental agreements, assurances
of title, and other documents and instruments as may be reasonably required and
necessary to carry out Company business and to effectuate the provisions hereof.
This Agreement shall be binding on the Members and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
12.3 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, but all of which, taken
together, shall constitute one agreement. It shall not be required that any
single counterpart hereof be signed by all of the Members, so long as each
Member signs any counterpart hereof.
12.4 Applicable Law. This Agreement shall be governed by and construed
in accordance with the Arizona Limited Liability Company Act and the other laws
of the State of Arizona.
12.5 Attorneys' Fees. In case of any action or proceeding to compel
compliance with, or for a breach of, any of the terms and conditions of this
Agreement, the prevailing party shall be entitled to recover from the losing
party ail costs of such action or proceeding, including, but not limited to,
reasonable attorneys' fees.
12.6 Construction. Such pronouns as "he," "his," "him," "it," or "who"
with "Member" or "Member" or "Manager" as the antecedent shall be deemed to
refer also to each such persons or entity who is a woman, a partnership, a joint
venture, an association, a corporation or a trust. Whenever required by the
contact hereof, the singular shall include the plural and vice versa, and the
masculine
20
gender shall include the feminine and neuter genders, and vice versa. Section
headings and captions contained in this Agreement are inserted only as a matter
of convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof.
12.7 Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement, or any application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby, but
shall be enforced to the greatest extent permitted by law.
12.8 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties and supersedes any prior understandings and
agreements between or among them respecting the subject matter contained herein.
There are no representations or warranties, oral or written, expressed or
implied, between or among the parties hereby relating to the subject matter of
this Agreement which are not fully expressed herein.
12.9 Organization Expenses. All legal, recording and related expenses
in connection with the formation and qualification of this Company and purchase
of the Property shall be considered and treated as Company expenses, subject to
the limitations in the budgets approved by the Members, as provided elsewhere in
this Agreement.
[The remainder of this page has intentionallty been left blank.]
21
IN WITNESS WHEREOF, the undersigned have executed this Operating
Agreement of Company to be effective the 18th day of September, 1996.
MANAGER:
P. B. BELL & ASSOC'S, INC., an Arizona
corporation
By /s/ P. B. Bell
----------------------------------------------
PHILLIP B. BELL, President
MEMBERS:
RCORP, INC., an Arizona corporation
By /s/ Ronald L. Clifton
----------------------------------------------
RONALD L. CLIFTON, President
CERPROBE CORPORATION, a Delaware corporation
By /s/ Randal L. Buness
----------------------------------------------
RANDAL L. BUNESS, Chief Financial Officer,
Vice President and Secretary
THE LEIGHTON-OARE FOUNDATION, INC.
By /s/ Judd C. Leighton
----------------------------------------------
JUDD C. LEIGHTON
/s/ Judd C. Leighton
----------------------------------------------
/s/ Mary Morris Leighton
----------------------------------------------
By /s/ Judd C. Leighton
----------------------------------------------
MARY MORRIS LEIGHTON
Pursuant to Power of Atty
dated 2-12-93
22
THE PLYM FOUNDATION
By /s/ James F. Keenan
----------------------------------------------
JAMES F. KEENAN
THE EDWARD & IRMA HUNTER FOUNDATION
By /s/ James F. Keenan
----------------------------------------------
JAMES F. KEENAN
23
SCHEDULE A
CRPB INVESTORS, L.L.C.
Initial
Member Capital Number Capital Capital
Name and Address Contributions of Units Percentage Account
=============================================================================================================================
P. B. Bell & Associates, Inc. Land Purchase and Sale 16.2 16.2% $270,264
8603 East Royal Palm Road Agreement Rights, Plans and
Suite 210 Specifications, Negotiated Net
Scottsdale, Arizona 85258 Lease with Tenant, Formation
of Entity and Loan Guaranties
RCORP, INC. Value Engineering and Site 1.8 1.8% $30,029
1717 East Morten Negotiations
Suite 210
Phoenix, Arizona 85020
Cerprobe Corporation Cash 35.96 35.96% $600,000
600 South Rockford Drive
Tempe, Arizona 85281
The Leighton-Oare Foundation, Cash 11.99 11.99% $200,000
Inc.
211 West Washington, #2400
South Bend, IN 46601
Mr. Judd C. Leighton Cash 5.995 5.995% $100,000
211 West Washington, #2400
South Bend, IN 46601
Mary Morris Leighton Cash 5.995 5.995% $100,000
211 West Washington, #2400
South Bend, IN 46601
The Plym Foundation Cash 11.03 11.03% $184,000
423 Sycamore Street, #101
Niles, MI 49120
The Edward & Irma Hunter Cash 11.03 11.03% $184,000
Foundation
423 Sycamore Street, #101
Niles, MI 49120
TOTAL $1,668,293
=============================================================================================================================
24
SCHEDULE B
Property Description
25
EXHIBIT A
A portion of the Southwest quarter of Section 34, Township 1 South, Range 5 East
of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more
particularly described as follows:
Commencing at the Southwest Corner of said Section 3, said point being a brass
cap in handhold;
thence North 02 degrees, 54' 47" West (record North 02 degrees 53' 38"
West), along the West line of said Section 3, a distance of 1613.68 feet
(recorded 1613.22 feet) to the brass cap in handhole monumented intersection of
the said West section line and the monument line of West San Angelo Street as
shown on CONTINENTAL TECH CENTER, a Map of Dedication as recorded in Book 308 of
Maps, page 17, Maricopa County Records;
thence North 88 degrees 45' 42" East, along said monument line of West
San Angelo Street, a distance of 1393.81 feet to a point;
thence South 01 degrees 14' 18" East, perpendicular to the
aforementioned monument line of West San Angelo Street, a distance of 65.00 feet
to a one-half inch iron bar, said point being the Northwest corner of parcel and
the Point of Beginning;
thence North 88 degrees 45' 42" East, a distance of 419.03 feet to a
one-half inch iron bar, said point being on the arc of a circle, the center of
which bears North 01 degrees 14' 18" West, a distance of 2162.50 feet;
thence Northeasterly along said arc, through a central angle of 08
degrees 31' 43", a distance of 321.89 feet, to a one-half inch iron bar, said
point also being on the arc of a second circle, the center of which bears North
77 degrees 36' 55" East, a distance of 1565.00 feet;
thence Southeasterly along said arc, through a central angle of
01degrees 18' 35", a distance of 35.77 feet to a one-half inch iron bar;
thence South 13 degrees 42' 40" East, a distance of 123.85 feet to a
one-half inch iron bar, said point being on the arc of a third circle, the
center of which bears South 76 degrees 18' 37" West, a distance of 685.00 feet;
thence Southwesterly along said arc; through a central angle of 04
degrees 56' 26", a distance of 59.07 feet to a non-tangent point, said point
being a one-half inch iron bar;
thence South 13 degrees 37' 50" East, a distance of 72.85 feet to a
one-half inch iron bar, said point lying 55.00 feet West of the monument line of
Fiesta Boulevard;
thence South 02 degrees 46' 30" East, along said line, a distance of
347.41 feet to a one-half inch iron bar;
thence South 88 degrees 45' 42" West, a distance of 809.00 feet to a
one-half inch iron bar;
thence North 01 degrees 14' 18" West, a distance of 608.62 feet to the
Point of Beginning.
Described property being in and forming a part of the Town of Gilbert, Arizona
and comprising an area of 483,845 square feet or 11.1076 acres more or less.
REGISTERED LAND SURVEYOR
CERTIFICATE NO.
19809
CHRISTOPHER S.
AULERICH
DATE SIGNED
9/19/__
ARIZONA, U.S.A.
PARCEL No. 2:
Nonexclusive easement for use and enjoyment in and to the Common Areas (as
defined in that certain Declaration of Covenants, Conditions, Restrictions and
Easements for CONTINENTAL TECH CENTER recorded in Instrument No. 86-419846, as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
Restrictions and Easements for CONTINENTAL TECH CENTER recorded in Instrument
No. 88-494774, re-recorded in Instrument No. 88-516441 and Instrument No.
89-312262, and as assigned and assumed by that certain Assignment and Assumption
of Declarant's Rights Under the Declaration of Covenants, Conditions,
Restrictions and Easements for CONTINENTAL TECH CENTER recorded in Instrument
No. 92-0420403, that certain Assignment and Assumption of Declarant's Rights
Under the Declaration of Covenants, Conditions, Restrictions and Easements for
CONTINENTAL TECH CENTER recorded in Instrument No. 92-0420406 and that certain
Assignment and Assumption of Declarant's Rights Under the Declaration of
Covenants, Conditions, Restrictions and Easements for CONTINENTAL TECH CENTER
recorded in Instrument No. 94-0889207).
PARCEL NO. 3:
A permanent, nonexclusive easement for vehicular and pedestrian ingress and
egress in, upon, over and across the Landscape Tracts, described as Landscape
Tract No. 3 of CONTINENTAL TECH CENTER, according to Book 308 of Maps, page 17,
records of Maricopa County, Arizona; and Landscape Tract No. 9 of CONTINENTAL
TECH CENTER PARCEL 5C, according to Book 320 of Maps, page 21, records of
Maricopa County, Arizona (as defined in that certain Declaration of Covenants,
Conditions, Restrictions and Easements for CONTINENTAL TECH CENTER recorded in
Instrument No. 86-419846, as amended by that certain First Amendment to
Declaration of Covenants, Conditions, Restrictions and Easements for CONTINENTAL
TECH CENTER recorded in Instrument No. 88-494774, re-recorded in Instrument No.
88-516441 and Instrument No. 89-312262, and as assigned and assumed by that
certain Assignment and Assumption of Declarant's Rights Under the Declaration of
Covenants, Conditions, Restrictions and Easements for CONTINENTAL TECH CENTER
recorded in Instrument No. 92-0420403, that certain Assignment and Assumption of
Declarant's Rights Under the Declaration of Covenants, Conditions, Restrictions
and Easements for CONTINENTAL TECH CENTER recorded in Instrument No. 92-0420406
and that certain Assignment and Assumption of Declarant's Rights Under the
Declaration of Covenants, Conditions, Restrictions and Easements for CONTINENTAL
TECH CENTER recorded in Instrument No. 94-0889207).
PARCEL NO. 4:
A temporary license for and during the construction phase of the improvements on
Parcel No. 1 hereinabove described, to enter upon the Landscape Tracts described
as Landscape Tract No. 3 of CONTINENTAL TECH CENTER, according to Book 308 of
maps, page 17, records of Maricopa County, Arizona; and Landscape Tract No. 9 of
CONTINENTAL TECH CENTER PARCEL 5C, according to Book 320 of Maps, page 21,
records of Maricopa County, Arizona (as defined in that certain Declaration of
Covenants, Conditions, Restrictions and Easements for CONTINENTAL TECH CENTER
recorded in Instrument No. 86-419846, as amended by that certain First Amendment
to Declaration of Covenants, Conditions, Restrictions and Easements for
CONTINENTAL TECH CENTER recorded in Instrument No. 88-494774, re-recorded in
Instrument No. 88-516441 and Instrument No. 89-312262, and as assigned and
assumed by that certain Assignment and Assumption of Declarant's Rights Under
the Declaration of Covenants, Conditions, Restrictions and Easements for
CONTINENTAL TECH CENTER recorded in Instrument No. 92-0420403, that certain
Assignment and Assumption of Declarant's Rights Under the Declaration of
Covenants, Conditions, Restrictions and Easements for CONTINENTAL TECH CENTER
recorded in Instrument No. 92-0420406 and that certain Assignment and Assumption
of Declarant's Rights Under the Declaration of Covenants, Conditions,
Restrictions and Easements for CONTINENTAL TECH CENTER recorded in Instrument
No. 94-0889207).
SCHEDULE C
Company Supporting Documents
----------------------------
Project Proposal Booklet
Phase I Environmental Report
Geotechnical Evaluation Report
Seismic Study
ALTA Land Title Survey
Title Report Information in connection with the Property
Lease Documentation and all exhibits
Operating Agreement (attached herewith)
Construction Loan Commitment from Guaranty Federal Bank and supporting
documentation
Construction Contract with MT Builders
26