FILED: NEW YORK COUNTY CLERK 07/01/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/01/2016. Exhibit H

Transcription

1 FILED: NEW YORK COUNTY CLERK 07/01/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/01/2016 Exhibit H

2 OPERATING AGREEMENT OF 101 AOF ALLC THIS OPERATING AGREEMENT (as the same may be amended from time to time, this "Agreement") of 101 A OF A LLC (the "Company") is made and entered into as of the ~day of December, 2011, by and among the parties listed on Exhibit A attached hereto (together with such other persons who may hereafter become a member as provided herein, are hereinafter referred to as the "Members" or individually as a "Member"). WHEREAS, the Company has been formed as a limited liability company under the Delaware Limited Liability Company Act, Title 6 of the Delaware Code Annotated, et seq. (a it may be amended from time to time, or any successor statute, the "Act") by the filing with the State of Delaware, Secretary of Sate, Division of Corporations, a Certificate of Formation (the "Formation Certificate") pursuant to of the Act; and WHEREAS, the Members do hereby intend to adopt this Agreement as the Operating Agreement of the Company. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto do hereby enter into this Agreement under the laws of the State of Delaware to govern the operation of the Company upon the following terms and conditions: Capitalized terms used in this Agreement have the meanings set forth in Article II. 1.1 Formation. ARTICLE I FORMATION AND OFFICES (a) The Company was formed as a limited liability company under the provisions of the Act and the Members agree to continue the Company under the Act on the terms and conditions set forth in this Agreement. The fact that the Formation Certificate is on file in the Office of the Sate of Delaware, Secretary of State, Division of Corporations, shall constitute notice that the Company is a limited liability company pursuant to the Act. (b) The Members of the Company are the persons executing this Agreement as Members as of the date of this Agreement, each with an interest in the Company (such interest, as the same may be modified in accordance with the provisions of this Agreement, being a "Membership Interest") as set forth in Exhibit A. (c) The Managing Member shall immediately, and from time to time hereafter, as may be required by the Act, execute or cause to be executed all amendments to the Formation Certificate, and do all filing, recording and other acts as may be appropriate under the Act and shall cause a copy of each such amendment to be distributed to the other Members. The rights C:\NrPortbl\NY\FENTONN\ _l.DOC 1 NY v

3 and obligations of the Members shall be as set forth in the Act except as this Agreement expressly provides otherwise. 1.2 Name. All Company business shall be conducted in the name of the Company as set forth above or such other name as the Members may select from time to time and which is in compliance with the Act. 1.3 Purposes. (a) The purpose and business of the Company shall be as follows: (i) to acquire, own, hold, operate, manage, 'sell, transfer, assign, pledge, encumber, hypothecate, finance, refinance and otherwise dispose of those certain limited liability company interests in 101 A of A Ground Lessee LLC (the "GL LLC" and the interests of the Company therein, the "GL LLC Interests"; (ii) to become a member of GL LLC); (iii) to cause GL LLC to own, hold, maintain, lease, operate, manage, develop, improve, rehabilitate, sell, transfer, assign, mortgage, encumber, hypothecate, finance, refinance and otherwise dispose of the leasehold interest in that certain real property commonly known as 101 Avenue of the Americas, New York, New York (the "Property"); (iv) transacting any and all lawful business for which a limited liability company may be organized under the Act that is incidental, necessary or appropriate to accomplish the foregoing, including, without limitation, contracting for necessary or desirable services of professionals and others. (b) The Company shall not engage in any other business or activity without the prior written consent of the Managing Member. 1.4 Powers. The Company shall have the power to do any and all acts reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes and business described herein and for the protection and benefit of the Company. 1.5 Term. The Company commenced on the date of the filing of the Formation CertifiCate and shall continue in existence until December 31, 2061, or such earlier time as may be determined in accordance with the terms of this Agreement. 1.6 Principal Office. The principal office of the Company shall be located c/o Edward J. Minskoff Equities, Inc., 1325 Avenue of the Americas, 23'd Floor, New York, New York 10019, or at such other place as the Managing Member may determine from time to time, and the Company shall maintain records there as required by the Act. The Company may also operate at such other locations, both within or without the State of New York, as the Managing Member may determine from time to time. ARTICLE II C:\NrPortbl\NY\FENTONN\ _!.DOC 2 NY ,070v

4 DEFINITIONS 2.1 Terms Defined Herein. As used herein, the following terms shall have the following meanings, unless the context otherwise requires: "Act" shall have the meaning set forth in the recitals. "Additional Member" shall have the meaning set forth in Section 8.5. "Affiliate" shall mean with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person. "Agreement" shall have the meaning set forth in the recitals. "Bankruptcy" shall mean the filing of a petition for relief as to any such Member as debtor or bankrupt under the Bankruptcy Code of 1978 or like provision of law (except if such petition is contested by such Member and has been dismissed within one hundred twenty (120) days); insolvency of such Member as finally determined by a court proceeding; filing by such Member of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Member or a substantial part of such Member's assets; or commencement of any proceedings relating to such Member under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereafter in effect, either by such Member or by another, provided that if such proceeding is commenced by another, such Member indicates such Member's approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Member and has not been finally dismissed within sixty ( 60) days. "Capital Account" shall have the meaning set forth in Section 3.3. "Capital Contribution" shall have the meaning set forth in Section 3.1. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Company" shall have the meaning set forth in the preamble. "Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. "Controlling" and "Controlled" shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests. "Converting Member" shall have the meaning set forth in Section 3.2(a)(ii). "Defaulting Amount" shall have the meaning set forth in Section 3.2(a)(i). C:\NrPortbl\NY\FENTONN\ l.doc 3 NY 241,693,070v

5 "Defaulting Member" shall have the meaning set forth in Section 3.2(a). "Formation Certificate" shall have the meaning set forth in the recitals. "Indemnified Person" shall have the meaning set forth in Section 6.2. "Lending Member" shall have the meaning set forth in Section 3.2(a)(i). "Managing Member" shall mean the manager of the Company, who shall have the exclusive right to manage the Company's business. The initial Managing Member shall be 101 Equities Corp., a Delaware corporation. "Member" shall have the meaning set forth in the recitals. "Membership Interest" shall mean the entire ownership interest of a Member in the Company at any particular time, including the rights and obligations of such Member under this Agreement. "Percentage Interest" shall mean, with respect to any Member, such Member's percentage of ownership interest, as amended from time to time, in the Company set forth on Exhibit A to this Agreement. Exhibit A to this Agreement shall be amended from time to time to account for admissions, transfers and conveyances pursuant to Article VIII hereof and adjustments made pursuant to Section 3.2 hereof. "Person" shall mean any individual, corporation, partnership, joint venture, assocmtwn, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity. "Proceeding" shall have the meaning set forth in Section 6.2(b). "Property" shall have the meaning set forth in Section 1.3(a). "Substitute Member" shall have the meaning set forth in Section 8.3. "Tax Matters Member" shall have the meaning set forth in Section Other Definitional Provisions. (a) As used in this Agreement, (i) accounting terms not defined in this Agreement, and accounting terms partly defined to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles and (ii) terms defined in the Act and not otherwise defined in this Agreement shall have the respective meanings given to them under the Act. (b) The words "hereof," "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, subsection, schedule and exhibit references are to this C:\NrPortbl\NY\FENTONN\ l.doc 4 NY241,693,070v

6 Agreement unless otherwise specified. (c) All pronouns shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. 3.l Capital Contributions. ARTICLE III CAPITALIZATION OF THE COMPANY (a) Contemporaneously with the execution of this Agreement, each Member has made a contribution of capital to the Company (a "Capital Contribution") as set forth in the books and records of the Company. (b) If the initial Capital Contributions made by the Members pursuant to Section 3.l(a) and the proceeds of any loans made to the Company shall not be sufficient for the operation of the Company, the Members agree that any additional Capital Contributions that shall be required by the Company shall be made by the Members in proportion to their respective Percentage Interests. Any decision of the Company to require the Members to make an additional Capital Contribution pursuant to this Section 3.l(b) shall be made by the Managing Member. Each Member shall be required, within fifteen (15) days after receipt of notice from the Managing Member, to make an additional Capital Contribution equal to such Member's pro rata portion of such capital call based on such Member's Percentage Interest. Each Member's Capital Contribution shall be equal to the product of (i) the Member's Percentage Interest and (ii) the total additional Capital Contributions required. Each Member shall pay its Capital Contribution in cash or by certified check or wire transfer to the Company. (c) Except as set forth in this Agreement, no Member shall be required or obligated to contribute any additional capital to the Company or to lend any fimds to the Company. 3.2 Failure to Make Capital Contributions. (a) If a Member does not timely make its Capital Contribution under Section 3.1 and such default continues for five (5) Business Days following notice from the Manager, such Member shall be a "Defaulting Member." The following are the exclusive remedies against the Defaulting Member: (i) The non-defaulting Members may pay over to the Company within ten (1 0) Business Days all or any part of the amount which the Defaulting Member has failed to contribute (the "Defaulting Amount"). The amount paid over by the such non-defaulting Members (each a "Lending Member") shall be treated as a loan to the Defaulting Member, which loan shall bear interest at the lesser of (A) 18% per annum or (B) the highest rate then permitted by law. If more than one non-defaulting Member wishes to be a Lending Member, then such non-defaulting Members shall make such loan in proportion to their respective Percentage Interests or in such other proportions as they shall agree. The loan shall be payable on demand any time after the loan has been outstanding for ninety (90) days. Any such loan shall be repaid on a first priority basis out of any subsequent distributions to which the C:\NrPortbl\NY\FENTONN\ _1.DOC 5 NY241,693,070v

7 Defaulting Member would otherwise be entitled in accordance with this Agreement, which amounts shall be applied first to interest and then to principal until such loan is paid in full. As security for the repayment of any such loan, the Lending Members shall have a security interest in the Defaulting Member's Membership Interest in the Company but such loan shall otherwise be non-recourse to such Defaulting Member; provided however, if the Interest is subject to a prior lien not permitted hereunder, then the Defaulting Member shall have personal liability in the amount of said lien, but not to exceed the value of the Interest. The Lending Members shall have the additional rights set forth in this Section 3.2(a)(i). (ii) In the event a loan made pursuant to Section 3.2(a)(i) has been outstanding for ninety (90) or more days, each Lending Member (a "Converting Member") shall have the additional right to converts its portion of the loan into a contribution to the Company and, in such event: (A) the Defaulting Member's Membership Interest shall be reduced, and the Converting Member's Membership Interest shall be increased, in each case, by an amount equal to (I) a fraction, the numerator of which is the amount of the loan converted by the Converting Member and the denominator of which is the aggregate amount of the Capital Contributions (including the Initial Contributions, additional Capital Contributions and the Default Amount) made by all of the Members multiplied by (II) 125%; and (B) The Defaulting Member's Membership Interest shall be reduced, and the Converting Member's Membership Interest shall be increased, in each case, by an amount equal to (I) a fraction, the numerator of which is the amount of the loan converted by the Converting Member, and the denominator of which is the aggregate amount of Capital Contributions (including the Initial Contributions, additional Capital Contributions, and Default Amount) made by all of the Members multiplied by (B) 125%. (b) Each Defaulting Member hereby appoints the Manager (or each Member, if the Manager is the Defaulting Member) as its attorney-in-fact for the purpose of executing any and all documents, including, without limitation, promissory notes, security agreements, UCC-1 financing statements and transfer and sale documents, which the Manager (or each Member, if the Manager is the Defaulting Member) deems necessary to confirm or give effect to the provisions of this Section Capital Accounts. (a) The Company shall maintain for each Member a separate capital account in accordance with the rules applicable to partnerships in Treasury Regulations Section l(b)(2)(iv) (a "Capital Account"). (b) In the event any interest in the Company is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest. (c) permitted Capital Accounts shall be revalued as and when required and may be revalued as in accordance with the provisions of Treasury Regulations Section C:\NrPortbl\NY\FENTONN\ !.DOC 6 NY241,693,070v

8 l(b )(2)(iv)(f). 3.4 Capital Withdrawal Rights, Interest and Priority. Except as expressly provided in this Agreement, no Member shall be entitled to withdraw or reduce such Member's Capital Account. A Member who withdraws or purports to withdraw as a Member of the Company without the consent of all the other Members or as otherwise allowed by this Agreement shall be liable to the Company for any damages suffered by the Company on account of the breach and shall not be entitled to receive any payment of his, her or its Membership Interest or a return of his, her or its Capital Contribution until the time otherwise provided herein for distributions to Members. An unpaid Capital Contribution is not a liability of the Company or of any Member. ARTICLE IV PROFITS AND LOSSES, CASH DISTRIBUTIONS 4.1 Allocation of Profits and Losses. Except as otherwise required by law, profits and losses shall be allocated to the Members pro rata in accordance with their respective Percentage Interests. 4.2 Distributions. Except as otherwise provided in this Agreement, distributions shall be made only when and if, and in the amounts, the Managing Member determines. All distributions shall be made to the Members pro rata in accordance with their respective Percentage Interests. Distributions shall be made from the funds of the Company (whether arising from the operations of the Company, the sale of the Company's property, or a financing transaction) which the Managing Member determines are available for distribution after setting aside such amounts as the Managing Member deems advisable to retain for any Company purpose. ARTICLEV MEMBERS' ACTION All matters relating to meetings of or actions by Members, including place, notice, waiver of notice, quorum, voting requirements, proxies, action without meetings and telephonic meetings shall be as set forth in the Act. ARTICLE VI MANAGEMENT AND CONTROL 6.1 Management of Company. The Managing Member has the sole and exclusive right to manage the Company's business. Accordingly, except as otherwise specifically limited in this Agreement or under applicable law, the Managing Member shall: (i) manage the affairs and business of the Company; (ii) exercise the authority and powers granted to the Company; and (iii) otherwise act in all other matters on behalf of the Company. No contract, obligation or C:\NrPortbl\NY\FENTONN\ _l.DOC 7 NY 241,693,070v

9 liability of any kind or type can be entered into on behalf of the Company by any Member, and no decision, consent, approval, disapproval or other action required or permitted to be made by the Company, shall be made by any Member, other than the Managing Member. The Members shall take all actions which shall be necessary or appropriate to accomplish the Company's purposes in accordance with the terms of this Agreement. 101 Equities Corp., as Managing Member, shall have the right, in his sole and absolute discretion, to name his successor Managing Member. 6.2 Exculpation. (a) No Member or any of its Affiliates, nor any of their respective officers, directors, partners, employees or agents, shall be liable, in damages or otherwise, to the Company or to any of the other Members, for any act or omission performed or omitted by such Member pursuant to the authority granted by this Agreement, except if such act or omission results from gross negligence, willful misconduct or bad faith. The Company shall indenmif)r, defend and hold harmless such Member, its Affiliates and their respective officers, directors, partners, employees and agents ("Indemnified Person"), from and against any and all claims or liabilities of any nature whatsoever, including reasonable attorneys' fees, arising out of or in connection with any action taken or omitted by such Member pursuant to the authority granted by this Agreement, except where attributable to the gross negligence, willful misconduct or bad faith of such Member, its Affiliates or their respective officers, directors, partners, employees or agents. Each Member shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any act or omission of a Member pursuant to such advice shall in no event subject the Member to liability to the Company or any Member. Any indenmity provided under this Section 6.2 shall be paid out of and to the extent of the assets of the Company only and no Member shall have any personal obligation with respect thereto. (b) The right to indemnification conferred by this Section 6.2 shall include the right to be paid or reimbursed by the Company for the reasonable expenses incurred in advance of the final disposition of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative ("Proceeding") and without any determination as to the Person's ultimate entitlement to indenmification; provided, however, that the payment of such expenses incurred in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his, her or its good faith belief that he, she or it has met the standard of conduct necessary for indenmification under this Article VI and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to be indemnified under this Article VI or otherwise. 6.3 Time Devoted by Members; Compensation of Member. No Members shall be entitled to any salary or other compensation from the Company except for the Members' respective cash distributions as set forth in Article IV. 6.4 Other Activities. Any Member (including any Affiliate of the Members) may engage in or possess an interest in other business ventures of any nature or description, independently or with others, whether presently existing or hereafter created, including those in competition with the operations of the Company, and neither the Company nor any Member C:\NrPortbl\NY\FENTONN\ l.doc 8 NY 241,693,070v

10 (including any Affiliate of the Members) shall have any rights in or to such independent ventures or the income or profits derived therefrom. ARTICLE VII LIABILITY 7.1 Liability of Members. (a) A Member shall only be liable to make the payment of the Member's Capital Contributions. No Member shall by virtue of his, her or its interest as a Member or an owner of a Membership Interest be liable for any debts, obligations or liabilities of the Company. (b) No distribution to any Member shall be deemed a return or withdrawal of a Capital Contribution unless so designated by the Company, and no Member shall be obligated to pay any such amount to or for the account of the Company or any creditor of the Company except as otherwise required by law. (c) Except as otherwise required by law, no Member with a negative balance in such Member's Capital Account shall have any obligation to the Company or any other Member to restore said negative balance to zero. 8.1 General Restrictions. ARTICLE VIII TRANSFERS OF INTERESTS (a) No Member may, directly or indirectly, transfer all or any part of such Member's Membership Interest, except as provided in this Agreement or except with the prior written consent of the Managing Member. Any purported transfer of a Membership Interest in violation of the terms of this Agreement shall be null and void ab initio and of no effect. A permitted transfer shall be effective as of the date specified in the instruments relating thereto. Any transferee desiring to make a further transfer shall become subject to all the provisions of this Article VIII to the same extent and in the same manner as any Member desiring to make any transfer (b) A Member that is not a natural person may not cause or permit an ownership interest, direct or indirect, in itself to be disposed of such that, after the disposition the Company would be considered to have terminated within the meaning of Section 708 of the Code. 8.2 Permitted Transfers. A transferee permitted by Section 8.3 shall be admitted to the Company as a Substitute Member in accordance with the terms thereof. C:\NrPortbl\NY\FENTONN\ l.doc 9 NY241,693,070v

11 8.3 Substitute Members. (a) No transferee of all or part of a Member's Membership Interest shall become a substitute Member in place of the transferor (a "Substitute Member") unless and until: transfer; (i) The transferor (if living) has stated such intention in the instrument of (ii) The transferee has executed an instrument accepting and adopting the terms and provisions of the Formation Certificate and this Agreement; (iii) The transferee has caused to be paid all reasonable expenses of the Company in counection with the admission of the transferee as a Substitute Member; and (iv) The Managing Member has consented in writing to such transferee becoming a Substitute Member. Upon satisfaction of all the foregoing conditions with respect to a particular transferee, the Members shall cause this Agreement to be duly amended to reflect the admission of the transferee as a Substitute Member. (b) Notwithstanding anything to the contrary contained herein, no transfer that shall otherwise be permitted by this Article VIII shall be permitted if such transfer would result in the violation of the terms of any loan documents or any other financing or other agreement to which the Company is a party or by which its assets are affected. 8.4 Effect of Admission as a Substitute Member. Unless and until admitted as a Substitute Member pursuant to Section 8.3, a transferee of a Member's Membership Interest shall not be entitled to exercise any rights of a Member in the Company, including the right to vote, grant approvals or give consents with respect to such Membership Interest, the right to require any information or accounting of the Company's business or the right to inspect the Company's books and records, but such transferee shall only be entitled to receive, to the extent of the Membership Interest transferred to such transferee, the distribution and the allocation of profits and losses to which the transferor would be entitled. A transferee who has become a Substitute Member has, to the extent of the Membership Interest transferred to such Substitute Member, all the rights and powers of the Person for whom such Substitute Member is substituted and is subject to the restrictions and liabilities of a Member under the Formation Certificate, this Agreement and the Act. Upon admission of a transferee as a Substitute Member, the transferor of the Membership Interest so acquired by the Substitute Member shall cease to be a Member of the Company to the extent of such Membership Interest. A Person shall cease to be a Member upon transfer of all of such Member's Membership Interest whether or not the transferee becomes a Substitute Member. 8.5 Additional Members. After the formation of the Company, any person may become an additional member of the Company (an "Additional Member") and additional Membership Interests may be issued to such person and existing Members for such consideration upon the approval of the Managing Member on such terms and conditions as they may determine at the time of admission. No Additional Member shall be entitled to any C:\NrPortbl\NY\FENTONN\ l.doc 10 NY241,693,070v

12 retroactive allocation oflosses, income or expense deductions incurred by the Company. 8.6 Withdrawal. A Member shall not have any right to withdraw from the Company as a Member prior to its dissolution and winding up. ARTICLE IX DISSOLUTION AND TERMINATION 9.1 Events Causing Dissolution. The Company shall be dissolved upon the first to occur of the following events: (a) Certificate; (b) The expiration of the term of the Company as set forth in the Formation The written agreement of all of the Members; (c) The death, retirement, resignation, Bankruptcy, dissolution, withdrawal or removal of the last remaining Managing Member, unless within ninety (90) days following such event, a majority in interest of the remaining Members shall determine to continue the Company and shall, within such ninety (90) days, give written notice of such determination to the retired, resigned, bankrupt, dissolved, withdrawn or removed Member or its representative or, in the case of a deceased Member, to such Member's representative and to the other Members. If such majority in interest of the remaining Members shall determine to continue the Company, the remaining Members shall select a new Managing Member, and the Membership Interest of such deceased, retired, resigned, bankrupt, dissolved, withdrawn or removed Managing Member shall automatically be converted to that of a non-managing Member; (d) (e) The sale or disposition of all or substantially all of the Property; The entry of a decree of judicial dissolution under the Act; or (f) Any other event causing a dissolution of the Company under the provisions of the Act to the extent such provision is not validly modified by this Agreement. 9.2 Cash Distributions Upon Dissolution. Upon the dissolution of the Company as a result of the occurrence of any ofthe events set forth in Section 9.1, the Managing Member shall proceed to liquidate the Company as quickly as possible consistent with obtaining the full fair market value of the Company's property and during such period of liquidation all of the provisions of this Agreement shall remain in effect. The Company shall notify all known creditors and claimants of the dissolution of the Company in accordance with applicable law. The liquidation proceeds shall be applied and distributed in the following order of priority: (i) First, to the payment of debts and liabilities of the Company in the order of priority as provided by law and the expenses of liquidation. (ii) Second, to the establishment of reserves, if any, which the Members may C:\NrPortbl\NY\FENTONN\ _1.DOC 11 NY241,693,070v

13 deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company. (iii) Third, to the Members until each Member has received an aggregate amount of distributions under this Section 9.2 equal to such Member's Capital Contributions. (iv) Finally, the remaining balance of funds, if any, shall be distributed to the Members pro rata in accordance with their respective Percentage Interests. To the extent that property of the Company is not sold, each Member will receive a pro rata share of any distribution in kind. Any property distributed in kind upon liquidation of the Company shall be treated as though the property were sold and the cash proceeds distributed. 9.3 Certificate of Dissolution. On completion of the distribution of Company assets as provided herein, the Company shall be terminated, and the Managing Member (or such other person or persons as the Act may require or permit) shall file articles of dissolution with the State of Delaware, Secretary of State, Division of Corporation, cancel any applications to do business or similar filings made in foreign jurisdiction and take such other actions as may be necessary to terminate the Company. ARTICLE X ACCOUNTING, BANK ACCOUNTS, BOOKS, RECORDS AND REPORTS 10.1 Fiscal Year and Accounting Method. The fiscal year and taxable year of the Company shall be the calendar year. The Managing Member shall also determine the accounting method to be used by the Company Books and Records. The books and records of the Company shall be maintained at the principal office of the Company. In addition, the Company shall maintain the following: (a) A current list of the full name and last known business address of each Member; (b) A copy of the filed Formation Certificate and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any document has been executed; (c) Copies of the Company's federal, state and local income tax returns and reports and financial statements, if any, for the three most recent years; and (d) Copies of this Agreement and any amendments thereto. Each Member (or such Member's designated representative) shall have the right during ordinary business hours and upon reasonable notice to inspect and copy (at such Member's own expense) all books and records of the Company. I 0.3 Financial Reports. On or before the 90th day following the end of each fiscal C:\NrPortbl\NY\FENTONN\ l.doc 12 NY 241,693,070v

14 year of the Company, the Company shall cause to be prepared and delivered to each Member all information with respect to the Company necessary for the Members' federal and state income tax returns, including a Form K-1 or its equivalent and a financial report for the preceding fiscal year which shall include a balance sheet and a profit and loss statement prepared in accordance with generally accepted accounting principles applied on a consistent basis Tax Returns, Elections and Tax Matters Member. The Company shall cause to be prepared and timely filed all federal, state and local income tax returns or other returns or statements required by applicable law. The Company shall claim all deductions and make such elections for federal or state income tax purposes which the Members reasonably believe will produce the most favorable tax results for the Members. The Managing Member is hereby designated as the Company's "Tax Matters Member", which shall have the same meaning as "tax matters partner" under the Code, and in such capacity is hereby authorized and empowered to act for and represent the Company and each of the Members before the Internal Revenue Service in any audit or examination of any Company tax return and before any court Bank Accounts. All funds of the Company shall be deposited in a separate bank, money market or similar account(s) approved by the Managing Member and in the Company's name. Withdrawals therefrom shall be made only by persons authorized to do so by the Managing Member. ARTICLE XI MISCELLANEOUS 11.1 Title to Assets. Title to all assets acquired by the Company shall be held in the name of the Company. No Member shall individually have any ownership interest or rights in any assets of the Company, except indirectly by virtue of such Member's ownership of a Membership Interest. No Member shall have any right to seek or obtain a partition of any assets of the Company, nor shall any Member have the right to any specific assets of the Company upon the liquidation of or any distribution from the Company Nature of Interest in the Company. A Member's Membership Interest shall be personal property for all purposes Waiver of Default. No consent or waiver, express or implied, by the Company or a Member with respect to any breach or default by another Member hereunder shall be deemed or construed to be a consent or waiver with respect to any other breach or default by such Member of the same provision or any other provision of this Agreement. Failure on the part of the Company or a Member to complain of any act or failure to act of another Member or to declare such other Member in default shall not be deemed or constitute a waiver by the Company or the Member of any rights hereunder Amendment. This Agreement embodies the entire understanding among the Members concerning the Company and their relationship as Members and supersedes any and all prior negotiations, understandings or agreements. This Agreement may be amended or C:\NrPortbl\NY\FENTONN\ !.DOC 13 NY ,070v

15 modified from time to time only by a written instrument executed and agreed to by all of the Members. ll.s No Third Party Rights. None of the provisions contained in this Agreement shall be for the benefit of or enforceable by any third parties, including creditors of the Company. The parties to this Agreement expressly retain any and all rights to amend this Agreement as herein provided, notwithstanding any interest in the Agreement or in any party to this Agreement held by any other person Severability. In the event any provision of this Agreement is held to be illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and shall be enforced to the greatest extent permitted by law Binding Agreement. Subject to the restrictions on the disposition of Membership Interests herein contained, the provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors and permitted assigns Headings. The headings of the articles and sections of this Agreement are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof Governing Law. This Agreement shall be construed according to and governed by the laws of the State of Delaware, excluding any conflict of laws rules. To the extent permitted by applicable law, the provisions of this Agreement shall override the provisions of the Act to the extent of any inconsistency or contradiction between them. ll.l 0 Notices. All notices and demands required or permitted under this Agreement shall be in writing and may be delivered to the person to whom it is to be given, either in person or by guaranteed overnight courier, or sent by certified mail, postage prepaid, to the address as shown from time to time on the records of the Company. Any notice or demand mailed as aforesaid shall be deemed to have been given on the date that such notice or demand is received or delivery of the same shall be rejected. Any Member may specify a different address, which change shall become effective upon receipt of such notice by the other Members. Until otherwise noticed, the addresses of each Member shall be as set forth in Exhibit A Counterparts. This Agreement may be executed in multiple counterparts, and each such counterpart shall be considered an original, but all of which together shall constitute one and the same instrument Further Assurances. Each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated herein. C:\NrPortbl\NY\FENTONN\ !.DOC 14 NY 241,693,070v

16 IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed this Agreement as of the date set forth in the introductory paragraph hereof. MEMBERS: 101 A VENUE OF THE AMERICAS LIMITED PARTNERSHI~P--~-r--- By: ----~~~~~~~---- Name: e: General Partner 101 SILVER CORP. By: Name: Allen Silverman Title: President A AND E LIMITED PARTNERSHIP By: 101 Ellie Corp., its general partner By: Name: Allen Silverman Title: President

17 IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed this Agreement as of the date set forth in the introductory paragraph hereof. MEMBERS: 101 EQUITIES CORP. By: ~~ Name: Edward J. Minskoff Title: President 101 A VENUE OF THE AMERICAS LIMITED PARTNERSHIP By: ~~~~~~~ Name: Edward J. Minskoff Title: General Partner A AND E LIMITED PA.&INERSHIP

18 Exhibit A LIST OF MEMBERS Name and Address 101 Equities Corp. 101 Avenue of the Americas Limited Partnership 101 Silver Corp. A and E Limited Partnership TOTAL Percentage Interest 1% 30.25% 1% 67.75% % C:\NrPortbl\NY\FENTONN\ !.DOC 16 NY 241,693,070v