UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In Re: Chapter 7 EMC HOTELS AND RESORTS LLC, Case No. Debtor. MOTION FOR THE APPOINTMENT OF AN INTERINI TRUSTEE Evolve Controls, CJB Asset Management Group LLC and Best Landscape (the ?Petitioners?), by and through its undersigned counsel, hereby move this court (the ?Motion?) for the entry of an order directing the immediate appointment of an interim Chapter 7 trustee (the ?Trustee?) in the above-captioned Chapter 7 case of EMC Hotels and Resorts LLC f/k/a NYLO Nyack, LLC a/k/a WY Time Hotel LLC (the ?Debtor?), substantially in the form attached hereto as Exhibit A, under sections 105(a) and 303(g) of title 11 of the United States Code (the ?Bankruptcy Code?) and Rules 701 and 2001(a) of the Federal Rules of Bankruptcy Procedure (the ?Bankruptcy Rules?). In support hereof, the Petitioners respectfully state as follows: PRELIMINARY STATEMENT 1. By this Motion, the Petitioners seek the immediate appointment of a Trustee to serve as a responsible ?duciary who can oversee the operation of the Time Nyack Hotel (the ?Hotel? or ?Time Hotel?), a 133 room-hotel located in Nyack, New York of Interstate 87 close to the Mario Cuomo Bridge. The Debtor has been taken over by a known fraudster, Edgar Melo Costa (?Costa?) who has deceived and defrauded the rightful owners of the Hotel and its creditors; (ii) transferred estate funds to his personal account while failing to pay creditors; changed the names of entities without authority in an effort to evade and defraud creditors and interest holders (iv) failed to comply with New York State, Rockland County, and local laws by failing to obtain a Certi?cate of Occupancy for the Hotel, restaurant and pool; and has close associations with an individual under indictment for securities fraud. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction to consider and determine this matter pursuant to 28 U.S.C. 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. FACTUAL BACKGROUND A. Bankruptcy Proceedings 3. On June 18, 2018 the Petitioners ?led an Involuntary Petition against the above- captioned debtor (the ?Debtor?) under Chapter 7 of Title 11 of the United States Code, thus commencing this case (the ?Case?). The Debtor was served by hand on June 20, 2018 the Summons Debtor In Involuntary Bankruptcy Case and Involuntary Petition. Although the Debtor has until July 1 1, 2018 to respond to the Involuntary Petition, based on the recent transfers by Mr. Costa in the approximate amount of $750,000 ?'om the Hotel?s operating account and appear to be personal in nature, the Petitioners are concerned that Costa will further deplete the estate before the return date. B. EMC Hotels and Resorts LLC Fraudulently Acquired Its Interest In The Time Hotel Nyack 4. In 2012, Michael Yanko, a real estate developer approached Howard Dean an attorney and respected real estate developer, and entered into an agreement to develop a hotel on the site of a commercial warehouse owned by Dean located just over the Mario Cuomo Bridge adjacent to Interstate 87 in Nyack, NY. At the time, Yanko was the husband of Kerry Wellington, who is the daughter of Don Wellington, a successful North Carolina businessman. The parties formed NYLO Nyack, LLC a/k/a WY Time Hotel, LLC Time?) n/k/a EMC Hotels and Resorts, LLC on January 10, 2014 for the purposes of acquiring the real property at 400 High Avenue, Nyack, New York and developing a boutique hotel at that location that is now known as the Time Hotel. 5. The plan was for the Wellingtons to put up the money and Howard Dean would contribute the real estate and some money to the venture and remain a limited partner in the Hotel. To this end, the Wellington?s formed Key Real Estate Holdings, LLC in June 2014. Howard Dean formed HI) Dev NYLO, LLC Dev?) which is a New York limited liability company to hold his limited partnership interest. 6. Pursuant to the Operating Agreement of NYLO, KREH acquired 93.75% of NYLO with a $15,000,000 capital commitment. HD Dev loaned NYLO $3 million and invested $1,000,000 as an initial capital contribution in return for 6.25% of the equity in NYLO. 7. In June 2016, WY Time entered into a loan facility with Bank Hapoalim B.M. under which BHI would lend WY Time up to $19,000,000. Don Wellington provided a limited personal guaranty of the BHI Loan. Furthermore, WY Time borrowed approximately $10 million under a program commonly referred to as EB-5 which allows foreigners to invest in real estate in return for visas. HD Dev was repaid $3 million from the EB-5 loan proceeds. While WY Time was behind schedule in opening the Time Hotel and its attendant restaurant it serviced the BHI loan until late 2017. 8. In addition to the Time Hotel, the Wellingtons were also involved with the development of a condominium project in Bronxville, New York on the former office site of Metropolitan Life Insurance Company (the ?Condos?). In connection with that venture, they formed an entity Key Real Estate Bronxville, LLC The purpose of KREB was to invest in MetLoft Bronxville, LLC (n/k/a EMC Bronxville Metropolitan LLC) which was planning to operate the Condos. In August 2014, Don Wellington invested millions in KREB. Under a promissory note dated August 12, 2014, Wellington provided a loan of more than $7,500,000 to KREB. Wellington made an additional capital contribution to KREB. In November 2014, MetLo? entered into a credit facility with Banoo Popular, North America ("Popular"). Under the credit facility, Popular agreed to provide a building and project loan in the aggregate principal amount of up to $24,550,000. Wellington agreed to provide a payment guaranty for the full amount of the Popular loan. MetLo? also obtained EB-S ?nancing in the sum of $5,000,000 for its project. Upon information and belief, MetLoft aside ?om agreed-upon extensions, timely serviced the debt on the Popular loan through the end of 2017, at which time Costa became involved with KREB, and MetLoft. 9. Pursuant to the Operating Agreement, WY, an entity controlled by Michael Yanko was appointed Managing Member of NYLO even though he had no equity interest in the company. Section 5.2 of the Operating Agreement provides that NYLO is not permitted to have more than one managing member. However, sometime during 2017 Michael Yanko and Kerry Wellington became separated and Michael Yanko stopped acting as Managing Member. Section 5.1 of the Operating Agreement allows only one member to act as the Managing Member. A copy of the Operating Agreement is attached hereto as Exhibit B. 10. Sometime in early December 2017, Dean was informed by Kerry Wellington that she had located a new investor for the Time Hotel and for MetLo? through Brent Borland. Borland was the broker who brought EB-5 ?nancing to the project and is presently under indictment for securities fraud by the Of?ce of the United States Attorney for the Southern District of New York relating to the construction of an airport in Belize. This investor was Costa, a Portuguese national, who held himself out as a wealthy entrepreneur and investor who could provide ?nancial support to the Time Hotel and MetLo? projects. At the time, the Hotel had over $30,000,000 in debt, including $600,000 owed to trade creditors. Further, the Hotel had not been paying interest to Bank Hapoalim, the principal secured lender on the Hotel, nor the EB-5 creditors and was behind schedule in MetLo? as well. 11. Costa courted Kerry Wellington and convinced her and her father that he would pay $600,000 to trade creditors, he would bring the banks up to date, and relieve Don Wellington of his personal guaranties, as well as provide $2,000,000 in capital necessary to ?nish the rooftop bar at the Hotel. The Wellingtons were unaware that Costa was a professional con artist and ?audster. While Costa attempted to modify the Operating Agreement on December 11, 2017 to make himself a managing member, HD Dev refused to consent to any modi?cation. See Af?davit of Howard Dean at 118. In addition to control, Costa sought to raise the one-time management fee from $300,000 to $900,000 per annum. Shortly thereafter, Dean hired two private investigators to review Costa?s background in the US. and Portugal and both investigators veri?ed that Costa is a fraud. 12. Costa claimed he was the principal owner of Ecojets, a private jet company as well as many other companies around the world. However, the website for Ecojets is a ruse. One of the people listed on the website is not even an employee of the Company. It does not appear that Ecoj ets has any planes at all. Costa asserted that he reorganized his father?s failing business and told Dean that he sold it for $430,000,000. See Investigation Report attached to the Dean Af?davit as Exhibit (the ?Investigators Report? at This is a bald-faced lie, in fact, Costa has personal debts in excess of $1,500,000 from companies in Portugal that he cheated out of money. See Exhibits of the Investigation Report. Costa also claimed to have an engineering degree from Universidad NOVA de Lisbon and at various times claimed to have either a Master?s degree or a Law degree ?om Columbia University in New York City. All of the above facts are lies that Costa advanced to deceive the Wellingtons. As set forth in Dean?s Af?davit, Ecojets does not appear to have any operations and currently its? phones are forwarded to the Time Hotel. Dean Af?davit at 1] 9. 13. Once Costa became involved in the operations, Dean was excluded from a) construction meetings; b) weekly and meetings to discuss operations, budgets and ?nances; c) email distribution of the Hotel and its restaurant?s daily reports. Dean?s exclusion was in direct violation of the Operating Agreement. 14. In a letter dated April 17, 2018 from Tamir Young, an attorney purportedly representing Costa, the Wellingtons were requested to con?rm conveyance of their 90% interests in KREH to EMC Real Estate Holdings LLC retroactive to January 1, 2018. Although the letter is signed by Kerry Wellington, Don Wellington did not sign this letter. His signature, in fact, is a forged facsimile which Costa forced Sandra A. Romero, the notary and a Hotel employee, to notarize under the threat of being terminated. See af?davit of Donald Wellington at Furthermore, Brad Wellington, Don?s son, did not sign the agreement. A copy of the alleged agreement between Costa and Wellington is attached to the Af?davit of Don Wellington as Exhibit C. A copy of Wellington?s actual notarized signature is attached to the Af?davit of Don Wellington as Exhibit . Clearly, the signature notarized by Romero and Don Wellington?s actual signature do not match. See af?davit of Don Wellington at 114. 15. In an effort to ?irther perpetrate fraud and enable him to access the Hotel and restaurant?s bank accounts, in March, 2018, Costa changed the name to EMC Hotels and Resorts LLC Hotels?). Furthermore, Costa changed the name of KREH to Real Estate Holdings Costa renamed MetLo? Bronxville, LLC Metropolitan 16. Costa?s next move was removing Kerry Wellington from managerial and administrative roles in KREH and KREB. Costa removed Kerry Wellington from all of the bank accounts associated with KREH and KREB, leaving Costa as the lone signatory and lone manager of each 17. Costa also forged Kerry Wellington's signatures on documents purporting to establish that she resigned from positions within each LLC. See Af?davit of Kerry Wellington at 113. 18. Costa has repeatedly back?dated documents and contracts in an effort to establish a false and misleading record regarding the transfer of ownership interests in KREH, KREB and, MetLo?. 19. As one example, Costa appears to have created a document purporting to show that MetLo? Bronxville, LLC was sold to ELP Ventures II, LLC on December 1, 2017. Yet, ELP Ventures II was not even formed as a Delaware limited liability company until January 17, 2018-more than six weeks later. 20. More troubling for the LLC, its members, and those who are relying on the success of the Projects, Costa has allowed the entities to begin defaulting on the various credit facilities that were extended by BHI and Popular. 21. has issued a notice of default to Time Hotel, LLC and to Wellington as a guarantor of that loan. When Wellington offered to wire $500,000 to BHI to cover past interest on the BHI loan (because Costa refused to make necessary payments on the loan as he had promised), Costa refused to allow Wellington to act in the best interests of the LLC. Costa has also caused the Hotel to pay obligations of MetLoft. 22. On June 14 and June 15, 2018, Costa withdrew approximately $28,000 from accounts dedicated to paying bills of the Time Hotel and transferred those funds to his personal accounts. The June 15 transaction was unprecedented in that Costa wired $15,000 from revenue accounts at the hotel (representing customer credit card deposits) to his personal account. See Af?davit of Kerry Wellington at 114. 23. Upon information and belief, Costa has been looting a Wells Fargo account attached to a restaurant associated with the Time Hotel to fund his personal expenses in an amount in excess of $500,000. C. EMC Has Stolen Money From the Hotel and Failed To Run The Time Nyack Hotel Properly 24. During his tenure at the Hotel, Costa has mismanaged the Hotel and diverted Hotel receipts to his own personal account. A review of the Hotel?s operating accounts re?ects that there are approximately $40,000,000 in creditors owed money. Furthermore, there are over 100 employees who work in the hotel and restaurant. As the Debtor is responsible for paying employees, and has missed scheduled payrolls on several occasions, Costa presents a real threat to the welfare of the employees and their families. Additionally, the Hotel is operating without a Certi?cate of Occupancy from the Village of Nyack which is required by New York State in order to operate a hotel, the restaurant, and pool, thereby je0pardizing the Hotel?s operations. 25. Costa has fraudulently transferred in excess of $750,000 from the Hotel and restaurant to his own personal accounts over the past four months. See af?davit of Kerry Wellington at 114. D. Costa Has A History Of Fraudulent Behavior 26. Costa is permitted to work in the United States pursuant to an Employment Authorization Card and a valid for work only Social Security Card. Both cards expired in May 2018. It is unclear if they have been reauthorized. 27. Costa apparently has 22 companies in his name. None of them match his other 13 dissolved Portugal companies which have judgments against them of approximately $1,500,000. 28. Costa supposedly founded Ecojets. The company has three employees. One is Costa. There is no information on another, and the third is listed as Lidia MacDonald. The picture used for her is actually that of Diane Dillon, the Chief Marketing Officer of Addison Communication in Boston which appears to have been copied and pasted from one of Ms. MacDonald?s social media pages. There is a plane listed as belonging to Ecojets with the Ecojets logo and a tail number. The tail number is not registered with the FAA. See Exhibit to Af?davit of Howard Dean. 29. Equally troubling is the fact that Costa was introduced to the Wellingtons by Brent Borland, an individual who was recently indicted for securities ?aud on May 16, 2018 by the US Attorneys? Of?ce for the Southern District of New York. Borland was the broker who facilitated the EB-S ?nancing on both NYLO and MetLo?. Costa speci?cally told Kerry Wellington that he and Borland were partners in the Belize project which is the subject of that indictment. See Kerry Wellington af?davit at 115. APPOINTNIENT OF AN INTERM TRUSTEE IS ESSENTIAL TO PROTECT CREDITORS 30. It is apparent that the only way to protect creditors from the fraudulent transfer of money ?om the Hotel is to appoint an interim Trustee. Costa has proven to be un?t to run the Hotel. He obtained his interest fraudulently. Costa has a history of lying about his business dealings and his credentials. Costa has fraudulently transferred money out of the Hotel?s accounts. Finally, Costa has mismanaged the operation of the Hotel. 10 dealings and his credentials. Costa has fraudulently transferred money out of the Hotel’s accounts. Finally, Costa has mismanaged the operation of the Hotel. CONCLUSION 31. Accordingly, Petitioners respectfully request that the Court enter its order a) granting the Motion; b) ordering the appointment of an interim Chapter 7 Trustee under section 303(g) of the Bankruptcy Code; c) ordering the Debtor and any other individual or entity in possession of the Debtor’s records and property to cooperate with the interim Trustee and immediately turn over to the interim Trustee all records and property of the estate in their possession or control; (d) freezing the accounts of Costa to which the Debtor’s funds have been transferred; and (e) granting Petitioners such other and further relief as the Court may deem appropriate. RESERVATION OF RIGHTS 32. Petitioners expressly reserves its rights to assert, amend, modify or supplement this Motion and to seek additional discovery and/or present evidence at any hearing in connection with this motion. For the aforementioned reasons, Petitioners respectfully requests that this Court appoint an interim Trustee immediately. Dated: New York, NY June 29, 2018 THE SARACHEK LAW FIRM By: /s/ Joseph E. Sarachek___________ Joseph E. Sarachek (Bar #2163228) 101 Park Avenue, 27th Floor New York, NY. 10178 (212) 808-7881 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Chapter 7 EMC Hotels and Resorts LLC Case No. 18-22932-rdd AFFIDAVIT OF HOWARD DEAN Debtor STATE OF NEW YORK ss.: COUNTY OF NEW YORK HOWARD DEAN, being duly sworn, states: 1. I am an attorney and real estate investor with of?ces located 150 White Plains Road, Suite 300, White Plains, New York. 2. Prior to the development of the Time Hotel in Nyack, New York, I owned the commercial warehouse located at 400 High Street, Nyack, New York. In the course of my real estate operation, I had the property re-zoned for hotel use. I also advertised the property for development. 3. In 2012, Michael Yanko, a real estate developer approached me about building a hotel on the site. With Yanko as the managing member, we formed NYLO Nyack, LLC a/k/a WY Time HoteL LLC n/k/a EMC Hotels and Resorts, LLC on January 10, 2014. 4. Yanko?s father in law at the time Don Wellington was a well-known businessman who would put up the equity necessary to build the hotel and I would contribute the real estate and some money to the venture and remain a limited partner in the Hotel. 13 5. The Wellington?s formed Key Real Estate Holdings, LLC in June 2014. My entity is called HD Dev NYLO, LLC Dev?) which is a New York limited liability company to hold his limited partnership interest. Pursuant to the Operating Agreement of NYLO, KREH acquired 93.75% of NYLO with a $15,000,000 capital commitment and a $3,890,000 initial capital contribution and HD Dev acquired 6.25% with a $1,000,000 capital commitment and $1,000,000 initial capital contribution. Furthermore, NYLO borrowed approximately $10 million under a program commonly referred to as EB-S which allows foreigners to invest in real estate in return for visas. 6. Pursuant to the Operating Agreement, WY, an entity controlled by Michael Yanko and the Wellingtons, Yanko was appointed Managing Member of NYLO. Section 5.2 of the Operating Agreement provides that NYLO is not permitted to have more than one managing member. However, sometime during 2017 Michael Yanko and Kerry Wellington became separated and Michael Yanko stopped acting as Managing Member. 7. Once Costa was involved in the Hotel, I was excluded from a) construction meetings; b) weekly and meetings to discuss operations, budgets and ?nances; c) email distribution of the Hotel and its restaurant?s daily reports. Excluding me was in direct violation of the Operating Agreement. 8. Sometime in early December 2017, 1 was informed by Kerry Wellington that she had located a new investor for the Hotel and for MetLo? through Brent Borland. This investor was Edgar Costa, a Portuguese national, who held himself out as a billionaire entrepreneur and investor who could provide ?nancial support to Kerry and Don Wellington. 1 was suspect of Costa from the outset. Costa requested that consent to modify the Operating Agreement on December 11, 2017 to make him a managing 14 10. 11. member. I refused to do so. Further, Costa told me he wanted to raise the management fee from a one-time fee of $300,000 to $900,000 per annum. I didn?t see how this was possible given that the Hotel still had 33-4 million dollars in construction costs to complete the rooftop bar and landscaping. Subsequent to his request, I hired a private investigator to check into Costa?s background. Among the things I discovered were that Costa was not a billionaire, that Eeojets the Company he said he owned was non-existent, and that his educational background was not as represented. See copy of private investigators report attached as Exhibit E. Presently, the Hotel, the restaurant, and the Pool are operating without a Certi?cate of Occupancy and I have no visibility into its ?nances, speci?cally whether it has insurance coverage. For the aforementioned reasons, I respectfully request the appointment of an interim HOWARD DEAN Sworn to before me this day ofJune, 20] 8 Zia/mic? Notary Public Of New York Quaii??d in West ch No. 0 1 8 082583;; County 15 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK X. Chapter 7 EMC Hotels and Resorts LLC Case No. 18-22932?rdd AFFIDAVIT OF Donald F. Wellington Debtor STATE OF NEW YORK ss.: COUNTY OF NEW YORK p?L DONALD . WELLINGTON, being duly sworn, states: I am a professional investor in real estate and currently live in Asheboro, North Carolina. Prior to retiring, I built and sold a successful business that manufactured injection molded packaging and components in the consumer, healthcare and industrial marketplace. In 2012, Michael Yanko, my son in law at the time and areal estate developer approached me about ?nancing a hotel in Nyack, New York. With Yanko as the managing member, I formed NYLO Nyack, LLC a/k/a WY Time Hotel, LLC n/k/a EMC Hotels and Resorts, LLC on January 10, 2014. We formed Key Real Estate Holdings, LLC in June 2014. Pursuant to the Operating Agreement of NYLO, KREH acquired 93.75% of NYLO with a $15,000,000 capital commitment and a $3,890,000 initial capital contribution. have seen the letter dated April 17, 2018 from Tamir Young, an attorney purportedly representing Costa in which Costa seeks to con?rm conveyance of my family?s 90% 17 interests in KREH to EMC Real Estate Holdings LLC retroactive to January 1, 2018. I never signed the letter. My signature is a computer?generated forgery. A copy of this Letter is attached as Exhibit D. A copy of my actual notarized signature is attached hereto as Exhibit E. Clearly, the signature notarized by Romero do not match. 5. I strongly urge the Court to appoint a Chapter 7 Trustee is this case. WELLINGTON Sworn to before me this day ofJune 2018 Notary Public DYLAN LEATHERWOOD Notary Public-State of South Carolina My Commission Expires AugustOB. 2027 18 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Chapter 7 EMC Hotels and Resorts LLC Case No. l8?22932-rdd AFFIDAVIT OF KERRY WELLINGTON Debtor STATE OF NEW YORK ss.: COUNTY OF NEW YORK KERRY WELLINGTON, being duly sworn, states: 1. I am an investor in Key Real Estate Holdings, LLC which is the controlling partner of NYLO NYACK, LLC the entity that owns the Time Hotel in Nyack, New York. 2. I am also the 100% owner of BV Grill Nyack, LLC Grill?), the entity that owns the restaurant in the Time Hotel. 3. On numerous occasions, Edgar Costa forged my signature and my father?s signature. In particular, he used a computer-generated signature purporting to establish that I resigned from managerial positions from NYLO and BV Grill. 4. On June 26, 2018, I went to Wells Fargo Bank in Nyack, NY and obtained the bank statements attached as Exhibit F. The statements con?rm that Costa transferred in excess of $500,000 from BV Grill accounts to his personal accounts in just the past few months. These transfers are unprecedented and have no valid business purpose. 19 5. Costa was introduced to my father and I through Brent Borland, anti -. the EB-S ?nancing on the Time Hotel and MetLo? and who - securities fraud. Costa told me that he and Borland were partners in the? which is the subject matter of a $21 million fraud. I..- :5 6. Both my father and I are extremely concerned that if a Trustee is not appointed, l. . continue to divert resources necessary for satisfying creditors for own personal gain. low wwhiw Sworn to before me this day of une, 201 3 Christopher Perkins NOTARY PUBUC Wake County, NC ?3)be My Commission Expires July 21, 2020 Notary Pu ic UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In Re: Chapter 7 EMC HOTELS AND RESORTS LLC, Case No. AFFIDAVIT OF JOHN R. BURRELL Debtor. STATE OF NEW YORK ss.: COUNTY OF NEW YORK JOHN R. BURRELL, being duly sworn, states: 1. I am the owner of Hall Heating Cooling Service Inc. 2. My company performed work at the MetLo? Bronxville property. 3. I was given a $10,000 check by Edgar Melo Costa as a partial payment for my company?s work. 4. The check was drawn ?'om the account of WY Time Hotel LLC. A copy is attached hereto as Exhibit G. 5. I deposited the check given to me by Costa, but the check was returned because of a request by Costa to stop payment. 6. I am still owed $70,000 for my work on the project. .Q 0 R. BURRELL Sworn to before me this ?fday ofJune,_ 2018 - 2 J, - 41.. 1m: 6' 02.944550? Quali?ed It"; Watch?: rcounty CW Expire: we 21 EXHIBIT A UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In Re: Chapter 7 EMC HOTELS AND RESORTS LLC, Case No. 18-22932-RDD Debtor. ORDER GRANTING MOTION FOR THE APPOINTMENT OF AN INTERIM TRUSTEE Upon the Motion For The Appointment of An Interim Trustee (the ?Motion?) [Docket No. the Court having reviewed the Motion; and a hearing having been held on the Motion on 2018 (the "Hearing"); and the Court having found at the Hearing that good and sufficient cause appearing; and the Court having found at the Hearing that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, (ii) venue is proper in this district pursuant to 28 U.S.C. ?1408 and 1409, this is a core proceeding pursuant to 28 U.S.C. 157(b) and (iv) notice of the Motion was suf?cient under the circumstances, and after due deliberation the Court having determined that the relief sought in the Motion is in the best interests of the Debtors, their estates, creditors and all parties in interest, and that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and suf?cient cause appearing therefor, it is ORDERED, that the Motion is granted as provided herein; and it is further ORDERED, that United States Trustee is hereby directed to appoint one disinterested person as the Interim Chapter 7 Trustee under 11 U.S.C. 303(g) and Bankruptcy Rule 701 no later than days after entry of this Oder; and it is further ORDERED, that the Debtor and any other individual or entity in possession or control of the Debtor?s records and property, or any records and property necessary to operate the Time Hotel, shall turn over possession and/or control of such records and property to the Interim Trustee to allow the Interim Trustee to operate and manage the Time Hotel, and it is further ORDERED, that this Court shall retain jurisdiction with respect to any matters, claims, rights or disputes arising from or related to the implementation of this Order. Dated: 2018 White Plains, New York The Honorable United States Bankruptcy Judge EXHIBIT 386399v5 OPERATING AGREEMENT OF NYLO NYACK LLC A New York Limited Liability Company TABLE OF CONTENTS OF THE OPERATING AGREEMENT OF NYLO NYACK LLC A New York Member-Managed Limited Liability Company Page DRAFT 5/28/14 BOOKMARK NOT DEFINED. ARTICLE I FORMATION .. 1 Section 1.1 Formation; General Terms; Effective Date 1 Section 1.2 Name. 1 Section 1.3 Purposes. 1 Section 1.4 Principal Of?ces. 2 Section 1.5 Mistered Agent; Registered Of?ce. 2 Section 1.6 Commencement and Term. 2 Section 1.7 Members? Interests in Company Assets 2 ARTICLE II CAPITAL CAPITAL ACCOUNTS 2 Section 2.1 Names. Addresses. Capital Contributions. and Percentage Interests of 2 Section 2.2 Additional Capital Contributions 2 Section 2.3 Capital Account and Percentage Interest Adjustments. 3 Section 2.4 Loans to Company. 3 Section 2.5 Liability for Capital Contributions. . 4 Section 2.6 Maintenance of Capital Accounts 4 Section 2.7 Withdrawals of. Interest on, and Return of Capital Contributions. 4 ARTICLE ALLOCATIONS 5 Section 3.1 Allocations in General. 5 Section 3.2 Miscellaneous. 5 ARTICLE IV ONLIQUIDATING DISTRIBUTIONS 6 Section 4.1 Distributions. 6 Section 4.2 Withholding. '7 Section 4.3 Noncash Nonliquidating Distributions 7 Section 4.4 Limitations Upon Distributions 8 i a?/opi ARTICLE MEMBERS 8 Section 5.1 Management by the Members; Limitations on Actual 8 Section 5.2 Appointment. Term. and Resignation of Managing Member. 8 Section 5.3 Duties of the Managing Member and the Members. 9 Section 5.4 Asset Management Services 9 Section 5.5 Compensation and Expenses. 9 Section 5.6 Manner of Acting/ Meetings of the Members. 10 Section 5.7 Construction Meeti?z?s. 1 1 Section 5.8 @n?ict of Interest Transactions. 1 1 Section 5.9 Other Business of Meml?s. 11 ARTICLE VI BOOKS AND RECORDS AND TAX RETURNS 12 Section 6.1 Books and Records. 12 Section 6.2 Tax Returns. 12 ARTICLE VII LIMITED LIABILITY AND INDEMNIFICATION 12 Section 7.1 L'nnitation ofLiabilitv 12 Section 7.2 Indemni?cation. 13 ARTICLE RESTRICTIONS ON TRANSFERS OF INTERESTS OF MEMBERS .. 14 Section 8.1 Conditions Precedent to Transfers 14 Section 8.2 General. 14 Section 8.3 Right of First Refusal. 15 Section 8.4 Drag-Along Rights 17 Section 8.5 No Voluntarv Withdrawal. 17 Section 8.6 Consequences of Transfers of a Member?s Interest 17 Section 8.7 Reasonableness of Restrictions. 17 Section 8.8 Distributions. Allocations and Capital Accounts with Respect to Transferred Interests. 17 ARTICLE IX ADDITIONAL MEMBERS 18 Section 9.1 Additional Members. 18 Section 9.2 ?ghts of Economic Interest Owners. 18 Section 9.3 Admission of Economic Interest Owners as Members. 19 Section 9.4 Percentage Interest Adiustments 19 ARTICLE CESSATION OF MEMBERSHIP 19 Section 10.1 When Membership Ceases. 19 ARTICLE XI DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS 20 Section 11.1 Dissolution Triggers 20 Section 11.2 Winding Up 20 Section 11.3 Lguidating Distributions. 20 SectiOn 11.4 Reserves. 21 Section 11.5 Liquidating Distributions in Kind 21 Section 11.6 No De?cit Restoration Obligatio_n 21 ii 7% Section 11.7 Section 12.1 Section 12.2 Articles of Dissolution. 21 ARTICLE XII MISCELLANEOUS 22 Notices 22 Binding Effect 22 Construction. 22 Section 12.3 Section 12.4 Section 12.5 Section 12.6 Section 12.? Section 12.8 Section 12.9 Section 12.10 Section 12.11 Section 12.12 Section 12.13 Section 12.14 Section 12.15 Section 12.16 Section 12.17 Section 12.18 Dispute Resolution; Arbitration. 22 23 Entire Agreement; No Oral Operating Agreements. Amendments to the Articles and Operating Agreement. 23 Headings 23 Severability 23 Additional Documents. 23 Variation of Pronouns. 23 Govemin Consent to Jurisdiction 23 Waiver of Action for Parting; 24 Countemart Execution. 24 Creditors - 2 4 Tax Matters Member 24 Waiver of Default. 24 Time of the Essence. 24 Exhibits. 24 EXHIBIT A: Ownership Exhibit EXHIBIT B: Regulatory Allocations EXHIBIT C: Glossary of Terms OPERATING AGREEMENT OF YLO YACK LLC A New York Member-Managed Limited Liability Company THIS AGREEMENT is made and entered into by and among the Company and the Persons executing this Agreement as Members effective as of June 3, 2014. Unless otherwise indicated, capitalized words and phrases in this Agreement shall have the meanings set forth in the attached Glossary of Terms. WHEREAS, the Company was formed on January 10, 2014 upon the ?ling of the Articles with the New York Secretary of State; and WHEREAS, the Members desire to formalize their agreement concerning the operations of the Company and to adopt this Agreement as the operating agreement of the Company; now, therefore, the parties hereto hereby agree as follows: ARTICLE I FORMATION Section 1.1 ormation; General Terms; Effective Date. The Company was formed on January 10, 2014 Upon the ?ling of the Articles with the New York Department of State by the sole organizer and the Articles are hereby adopted and incorporated by reference in this Agreement. The Persons listed on Exhibit A are the initial Members of the Company. The rights and obligations of the Members and the terms and conditions of the Company shall be governed by the Act, the Articles, and this Agreement, including all the Exhibits to this Agreement. To the extent that the rights or obligations of any Member differ by reason of any provision of this Agreement from what they would be under the Act in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control. The Managing Member shall cause to be executed and ?led on behalf of the Company all other instruments or documents, and shall do or cause to be done all such ?lings, recordings and other acts as may be necessary or appropriate from time to time to comply with the requirements of law for the continuation and operation of a limited liability company in New York and in the other states and jurisdictions in which the Managing Member determines the Company shall transact business. Section 1.2 Name. The name of the Company shall be NYLO NY ACK LLC. Section 1.3 Pumoses. The purposes of the Company shall be to acquire real property located at 400 High Avenue, Nyack, New York (the ?Property?) and develop and operate a hotel on the Property (the ?Project?), to conduct any business activities authorized ?ta by the Act, which have the approval of the Managing Member including, but not limited to, acquiring, holding, developing, maintaining, performing services for, leasing, repairing, or selling real property and to conduct any activities necessary, appropriate, convenient, or desirable to carry out the purposes and business of the Company as set forth in this paragraph, subject to the limitations set forth in this Agreement and the Act. Section 1.4 Principal Of?ces. The principal of?ces of the Company are located at 79 Main Street, Nyack, New York 10960. The Company may change its principal of?ces from time to time as determined by the Managing Member. Section 1.5 Registered Agent; Registered Of?ce. The Company's registered agent and registered of?ce, if any, are set forth in the Articles and may be changed from time to time by the Managing Member by ?ling the address of the new registered of?ce, the name of the new registered agent, or both with the New York Department of State pursuant to the Act. Section 1.6 Commencement and Term. The Company commenced at the time and on the date appearing in the Articles and it shall continue in existence until it is dissolved in accordance with the provisions of this Agreement. Section 1.7 Members? Interests in Companv Assets. The Company shall own the assets of the Company as an entity and no Member shall have any ownership interest in the assets of the Company in that Member?s individual name or right. Each Member?s Interest shall be personal property for all purposes. ARTICLE II CAPITAL CAPITAL ACCOUNTS Section 2.1 N_ames. Addresses. Capital Contributions. and Percentage Interests of an amendment. Section 2.2 Additional Capital Contributions. No Member shall be required to make capital contributions to the Company in excess of its Capital Commitment. Until such time as Key Real Estate Holdings, LLC has made aggregate Capital Contributions equal .to its Capital Commitment, Key shall make Capital Contributions to the Company in the amounts and at such times as the Managing Member determines necessary for the stated purpose of the Company. Such Capital Contributions 2 shall be made within ?fteen (15) business days following receipt of notice ?om the Managing Member requesting such contribution. In the event Ke _l_1_as_ngt~ fully Ended its Capital Commitment on gigging; May3_hzgl?4mcentage Interests of the meers and Economic Interest Owners shall be adjusted on May 31, 2015, so that they are in proportion to the Capital Contributions made by such Members and Economic Interest Owners, provided that such adjustment shall not be the sole remedy available in the event of such failure to fund. If, from time to time following th??ea?ier of May 312 201 grind the date Key has fully funded its Capital Commitment, the Managing Member detenninesthat the @?p?yjnasgnably 13quires additip_ng?fgapi_tal_for the Eted Rurpgsegftheggmpany, Cgigjbutions _o__m__the Ca italidgr?xg?by giving written notide to 511 Members regarding the Capital contribution needed and the speci?c amount requested to be contributed by each Member (which shall be such Member's pro?rata portion of such capital contribution based on the Percentage Interest of the Members). Each Member sht?have days ?om the receipt of such notice to contribute the amount requested inst-10h notice (which shall be referred to as such Member's ?Additional Capital Contribution?). In the event that less than all of the Capital Members make Additional Capital Contributions in the amounts requested within such ?fteen (15) business day period, the Membeg marinade Contribution shall have the opportunilme further Capital Contributions up to the amount of the Additional Capital Contribution not made by the non?funding Member. .23 Section 2.3 C_apital Account and Percentage Interest Adjustments. Immediately (prior to the making of any non?pro rata Additional Ca ital Contributions pursuant to Section 2-203): th?neghng?rwgiu?? 1th-. Capital @Mers andEcanInic Integest 21793191er Sectionl?. The Managing Member shall adjust the Percentage Capital Accounts are adjusted pursuant to the previous sentence, and increased by all Capital Contributions, including any non-pro rata Additional Capital Contributions made by the Members pursuant to Section 2.2(b) or Section 22(0) with respect to such Capital Call. Section 2.4 Loans to Company. shall not be ob_l_iga_t?d_to, loan needed funds to the Empany to enable it to discharge obligations, rabilities, and charges incurred in the operation of its business ifsugh is ?rst approved by the Managing Member. Each Member hereby consents to the following: a loan ?om an entity controlled by Howard Dean in the amount of $3,000,000 at an interest rate of 8% per annum secured by a ?rst mortgage on the Property and evidenced by such documents as the Managing Member shall approve, at any time after the date that is seven months following the date of this Agreement, EB-S financing in the amount of $8,000,000 at an interest rate of 7.5% per annum to be secured by a second mortgage on the PrOperty and evidenced by such documents as the Managing Member shall approve, and the making of loans to the Company by the Managing Member at an interest rate not greater than eight percent per annum. 3 We Section 2.5 ?bilitv for Capital Contributions. No Member shall be personally liable for any debts or losses of capital or pro?ts of the Company solely by reason of being a IT/T?mber of the Company and, except as otherwise provided in this agreement, no Member shall be required to contribute or lend funds to the _C_ompany. The sole remedy of the Company and the?d?feTMEIEbers witmberhwho?fails to contribute his pro?rata share of any Additional Capital Contribution pursuant to Section 2.2(b) shall be as set 2.2Q3) and Section 2.3. In addition, the Members shall not be liable for the return of any Member?s Capital Contribution, and upon dissolution, the Members shall look solely to the assets of the Company for return of each Member?s Capital Contributions. Section 2.6 Maintenance of Capital Accounts. Individual Capital Accounts?shall?be maintained for each of the Members in accordance with Section 704(b) of the Code and the Lie Mgpgomulgated thereunder. There shall be credited to each Member?s Capital Account the amount of any cash and the Agreed Value of any property contributed to the Company by the Member, such Member?s distributive share of Profits and any items in the nature of income or gain that are specially allocated pursuant to Exhibit B, and the amount of any Company liabilities assumed by such Member or that are secured by any assets of the Company . distributed to such Member. There shall be debited from each Member?s Capital Account the amount of cash and the Agreed Value of any Company asset distributed to the Member by the Company, such Member?s distributive share of Losses and any items in the nature of expenses, deductions or losses that are specially allocated pursuant to Exhibit and the amount of any liabilities of such Member assumed by the Company or that are secured by any property contributed by such Member to the Company. The manner in which Capital Accounts are maintained pursuant to this Section 2.6 shall be modi?ed if such adjustments may be required to comply with the Capital Account maintenance requirements of Section 704(b) of the Code. The Managing Member shall immediately prior to the making of Additional Capital Contributions that are not made on a pro? rata basis by all Members pursuant to Section 2.2 adjust the Agreed Value of the Company?s assets to equal their gross fair market values as provided in the de?nition of Agreed Value set forth in ibit and (Timmy prior to the sale or other issuance of Interests or at 'such other times as is permitted by Regulations Section adjust the Agreed Value of the Company?s assets to equal their gross fair market values as provided in the de?nition of Agreed Value set forth in Exhibit C. In such event, the Capital Account of each Member shall be adjusted to reflect that Member?s share (based on the Member?s Percentage Interest in effect immediately prior to the event triggering the adjustment) of unrealized gain or loss, as provided in this Agreement, as if such property had been sold for its then fair market value as determined by the Managing Member. Section 2.7 Withdrawals of, Interest on. and Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member shall be entitled to withdraw anypartmuch Membg?s Capital any distribution, the Members shall have no right or. power to demand or receive property other than cash from the Company upon its dissolution, no Member shall be entitled to receive any interest on such Member?s Capital Contributions or with respect to the Member?s Capital Account, and no Member shall have 4 ml priority over any other Member as to the return of such Member?s Capital Contributions, distributions or allocations. ARTICLE ALLOCATION Section 3.1 Allocations in General. The Members shall treat the Company as a partnership and the Members as partners for federal income tax purposes and shall ?le all tax The parties intend that the tax allocation provisions of this Section 3.1 and Exhibit shall produce ?nal Capital Account balances of the Members that will permit liquidating distributions to be made in a manner identical to the order of priorities set forth in Section To the approved by a Majority in Interest of the Members. Section 3.2 Miscellaneous. any permissible method under Code Section 706 and the Treasury Regulations thereunder. Other Items. Except as otherwise provided in this Agreement, all items of Company income, gain, loss, deduction, credit, and any other allocations not otherwise provided for shall be divided among the Members in the same proportion as they share Pro?ts or Losses, as the case may be, for the year. Tax Consequences; Consistent Reporting. Allocations for tax purposes shall be made in accordance with allocations of Pro?ts and Losses to Capital Accounts ARTICLE IV NONLIQUIDATIN DISTRIBUTIONS Section 4.1 Distributions. Prior to the dissolution of the Company, the Managing Member shall cause the Company to distribute available funds to the Members as set forth in this Section 4.1 at such times and in such aggregate amounts as the Managing Member shall determine. Earlv Operating Distributions. Until the ?rst to occur of the date that is three years following the date of this Agreement and the closing date of a Capital Transaction or Refinancing (such date, the ?Early Distribution Termination Date?), Net Cash From Operations shall be distributed in the following order and priority: First, 100% to the Capital Members, pro rata, in proportion to the respective Undistributed Preferred Return of each Member, until each Member has received distributions pursuant to this Section equal to its Undistributed Preferred Return. (ii) Then 75% to the Capital Members in proportion to their respective Percentage Interests and 25% to the Managing Member (distributions to the Managing Member pursuant to this Section and Section the ?Carried Interest?). Later Operat?g Distributions and Non-Operating Distributions. Net Cash From Operations distributable following the Early Distribution Termination Date, and all Net Cash From Capital Transactions or Re?nancing shall be distributed in the following First, 100% to the Capital Members, pro rata, in proportion to the respective Undistributed Preferred Return of each Member, until each Member has received aggregate distributions pursuant to Section and this Section for this period and all prior periods in an amount equal to its aggregate Preferred Return. amount equal to such Member?s Unrecovered Invested Capital. Finally, all remaining distributions shall be made 75% to the Capital Members in prOportion to their respective Percentage Interests and 25% to the Managing Member. . Section 4.2 Withholding. In the event any federal, foreign, state, or local amount due and to have paid the withholding tax directly. In the event of any claimed over?withholding, Members shall be limited to an action against the applicable jurisdiction. Each Member shall furnish the Company with any representations and forms as shall be reasonably requested by the Company to assist it in determining the extent of, and in ful?lling, its withholding obligations. Section 4.3 Noncash Nonliquidating Distributions. The Company shall make proceeds thereof distributed to the Members. In the event of such a noncash distribution, the Agreed Value of the property to be distributed shall be adjusted as provided in the de?nition of Agreed Value set forth in Exhibit and any resulting Pro?ts or Losses shall be posted to the Capital Accounts of the Members as of the date the noncash distribution is made. Section 4.4 Limitations Upon Distributions. Notwithstanding anything herein to the contrary, no distribution shall be made to a Member if the distribution would result in a violation of the Act, other applicable law, or the terms of any agreement or any other instrument to which the Company is a party. ARTICLE MEMBERS Section 5.1 Management by the Members; Limitations on Actual Authority. Subject to the restrictions, terms, and conditions of this Agreement, the Members hereby delegate all powers and management authority granted to them pursuant to the Act to the Member designated by the consent of a Majority in Interest of the Members as the ?Managing Member.? Except as otherwise expressly provided in this Agreement, all decisions with respect to the management of Member acting alone, other than the Managing Member, shall be entitled to sign for or take any action individually on behalf of the Company without being authorized to do so by this Agreement or the consent of a Majority in Interest of the Members. If at any time there is a Agreement, no Member shall cause the Company to become bound to any contract, agreement, or obligation and no Member shall take any other action on behalf of the Company. The Managing Member will expend funds of the Company only in connection with the Property and the Project, including payment of the Management Fee, and in connection with organizational, administrative and other expenses of the Company. Section 5.2 Appointment, Term, and Resignation of Managing Member. The Company shall not have more than one Managing Member. Notwithstanding anything in this Agreement to the contrary, the Managing Member shall serve as such until his, her, or its death, incapacity, dissolution, removal, resignation, or other event that causes the Managing Member to cease to be a Member in accordance with this Agreement. A Managing Member may resign at any time by giving written notice to the Members of the Company. The resignation of a 8 WOW Managing Member shall take effect upon receipt of notice thereof or at such later time as shall be speci?ed in such notice; and, unless otherwise speci?ed therein, the acceptance of such resignation shall not be necessary to make it effective. If a Member shall cease to serve as a Managing Member, such Managing Member shall no longer be entitled to receive any distributions in connection with the Carried Interest and shall no longer receive the Management Fee, but such cessation shall not otherwise affect any Interest of the Member as a Capital Member. Any vacancy in the position of Managing Member may, but is not required to, be ?lled by a Majority in Interest of the Members. WY Management LLC shall serve as the Managing Member until its resignation or removal as such. Section 5.3 Duties of the Managing Member and the Members. Notwithstanding any other provision in this Agreement or any duty otherwise existing at law or in equity, the Managing Member (and any other Member when exercising authority in the management of the Company?s affairs) shall not, to the ?illest extent permitted by law, owe any duties (including ?duciary duties) to the Members or the Company; provided, however that such Persons shall have the duty to perform his or her duties as a manager in good faith and with that degree of care than an ordinarily prudent person in a like position would use under similar circumstances. The Managing Member (and any other Member when exercising authority in the management of the Company?s affairs) shall have no liability to the Company or its Members for damages for any breach of duty in such capacity unless there is a ?nal judgment or adjudication adverse to such Managing Member (or Member) that established that its acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that it personally gained in fact a ?nancial pro?t or other advantage to which it was not legally entitled. In performing its responsibilities for the Company, a Member or Managing Member may rely in good faith on the records of the Company and on opinions reports, statements, and other information presented to the Company by a Member, any employee of the Company, legal counsel, certi?ed public accountants, or any other Person, as to matters the Manager reasonably believes are within that other Person?s competence. Section 5.4 Asset Management Services. The Managing Member shall oversee and manage the Project, including the development, construction, out?tting and opening of the hotel, and the operation of the hotel, including the hiring and management of employees for the hotel. Section 5.5 Compensation and Expenses. In consideration of its services as Managing Member and the asset management services described in Section 5.4, the Managing Member is entitled to receive the Carried Interest as set forth in Section 4.1. Additionally, in consideration of the asset management services described in Section 5.4, the Managing Member will receive an aggregate management fee of $300,000 (the ?Management Fee?), payable in installments of $25,000 with the ?rst installment payable within (5) ?ve days following the date of this Agreement and future installments payable within the ?rst ?fteen (15) days of each calendar month. Upon submission to the Company of appropriate documentation, the Company shall reimburse the Members (including the Managing Member) or other agents of the Company for reasonable out?of?pocket expenses advanced on behalf of the Company in the performance of their duties and obligations under this Agreement. The Managing Member shall bear its own overhead expenses. 9 (kg/0W Section 5.6 Manner of Acting/ Meetings of the Members. Manner of Acting. Where vote, approval, consent, or similar action of more than one Member is speci?cally required by this Agreement, such approval may, except as otherwise provided herein, be given orally at an actual meeting of the Members held in accordance with this Section 5.6 or in writing evidenced in a written consent of the Members obtained in accordance with Section Members may not vote by proxy. Meetings. Meetings of the Members, for any purpose or purposes, may be called by the Managing Member or a Majority in Interest. No annual meeting of the Members shall be required. The Managing Member will make itself reasonably available to the Members to discuss the Company?s business and will hold informational meetings at the Property from time to time as appropriate to review the business of the Company. (0) Place of Meetings. Meetings of the Members shall be held at the principal offices of the Company or at any other place, either within or outside the State of New York, as may be designated by a Majority in Interest of the Members. Participation by Remote Communication. Any one or more of the Members may attend any meeting of the Members by electronic or other means of remote communication that allow such Member to read or to hear the meeting proceedings substantially concurrently as the proceedings occur, to be read or to be heard substantially concurrently as the Member communicates, and to vote on matters to which the Member is entitled to vote. Such participation in the meeting shall be the equivalent of being present in person at such meeting. The Person or Person(s) giving notice of the meeting shall include instructions on how a Member may so attend the meeting. (6) Notice of Meetings. Written notice stating the day and hog~ of the meeting, the place of the meeting, and the purpose or purposes for which the meeting is called shall be delivered to each Member not less than two nor more than 60 days before the date of the meeting in accordance with Section 12.1. Notice of any meeting of the Members shall be deemed to have been waived by attendance at the meeting, unless a Member attends the meeting solely for the purpose of objecting to notice and so objects at the beginning of the meeting. For the purpose of determining the Members entitled to receive notice of, or to vote at, any meeting of the Members or any adjournment thereof or entitled to take any other action (including informal action authorized hereinbelow), the Person(s) requesting such meeting or seeking such informal action may for, in advance, a date as the record date for any such determination of the Members. Such date shall not be more than 10 days prior to any such meeting or action. Meeting of all Members. If all of the Members shall meet at any time and place, either within or outside of the State of New York and consent to the holding of a meeting of such Members at such time and place, the meeting shall be valid without call or notice, and at such meeting any lawful action may be taken. 10 ?aw Action by Members Without a Meeting. Action required or permitted to be taken at a meeting of the Members may be taken without a meeting if one or more proposed written consents setting forth the action so taken or to be taken is signed by those Members required to approve or adopt such action. Every written consent shall bear the date of signature of each Member who signs the consent, and no written consent shall be effective to take the action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by this paragraph to the Company, written consents signed by a suf?cient number of Members to take the action are delivered to the of?ce of the Company, its principal place of business or the Managing Member, an employee or agent of the Company. Delivery made to the of?ce of the Company shall be by hand or by certi?ed or registered mail, return receipt requested. The written consent to any matter pursuant to this Section 5.6( g) has the same force and effect as if such matter was voted upon at a duly called meeting of the Members and may be described as such in any document or instrument. Section 5.7 Construction Meetings: Access to Information. The Managing Member shall hold weekly meetings at the Property to discuss the construction of the Project. All Members shall be entitled to attend such construction meetings upon request, and minutes of such meetings shall be maintained in the records of the Company. All Members will be given access to the Company?s software through which requisition requests may be viewed prior to payment of such requests and any questions may be directed to the Managing Member. Section 5.8 Con?ict of Interest Transactions. No Managing Member, Member, or other Company representative shall cause the Company to enter into a transaction or agreement in which such Member or other Company representative has a direct or indirect interest (other than in such Person?s capacity as a Managing Member or Member), unless such transaction is otherwise approved in accordance with the terms of this Agreement and is either authorized, ap roved or rati?ed a Majorit in Interest of the disinterested Members knowing the material fmmoses of this Section 5.8, the fairness of a transaction shall be evaluated on the basis of the facts and circumstances as they were known or should have been known at the time the transaction was entered into and the terms of a transaction should be deemed ?fair? if they are within the range that might have been entered into at arm?s?length by disinterested persons. Section 5.9 Other Business of Members. Any Member or Managing Member may engage independently or with others in other business ventures, or make or manage other investments, without the necessity of informing the Company or the other Members. Neither the Company nor any other Member shall have any right, by virtue of this Agreement or the relationship created hereby or by the Act, in or to such other ventures or activities or to the income or proceeds derived therefrom, and the pursuit of such ventures shall not be deemed wrongful or improper. Notwithstanding the foregoing, without the unanimous consent of the Members, neither the Managing Member nor Michael Yanko shall undertake any new construction project, with the exception of the Bronxville Condominium project, until the date a temporary certi?cate of occupancy is issued for the hotel contemplated to be constructed on the Property. 11 ARTICLE VI BOOKS AND RECORDS AND TAX RETURNS Section 6.1 Books and Records. Each Member shall have the right to obtain ?om the Company from time to time, upon reasonable demand for any purpose reasonably related to the Member?s interest as a Member of the Company, copies of any of the Required Records; provided, however, that in the discretion of the Managing Member, the Company need not disclose any information related to any other interest owner other than the information set forth in subsection of the de?nition of Required Records. Notwithstanding anything herein to the contrary, the Managing Member may impose conditions, restrictions, limitations, and standards on the exercise of a Member?s inspection and other information rights, (including redacting names and other con?dential information, providing summaries of documents, requiring the Member to enter an agreement not to disclose and otherwise maintain the confidentiality of the information provided, and setting standards governing what information and documents may be ?lmished, at what time and location such information and documents may be furnished, and at whose expense), and (ii) need not disclose or otherwise make available to a Member, manager, or other company of?cial trade secretsor other con?dential information of a nature that its disclosure could adversely affect the Company. For past Members, access to Required Records shall be limited to the time period in which such Person was a Member. Section 6.2 Tax Returns. The Managing Member shall cause the preparation and timely ?ling of all tax returns required to be ?led by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. The Company shall prepare, and use its best efforts to furnish to each Member within 90 days after the end of each Fiscal Year, information pertaining to the Company for the previous Fiscal Year (including a Schedule K?l to Internal Revenue Form 1065 with respect to such Member?s Interest relative to such previous Fiscal Year) that is necessary for each Member to prepare that Member?s federal, state and foreign income tax returns for the taxable year ending with such Fiscal Year end or within which such Fiscal Year ends. If such information is not available within 90 days after the end of a Fiscal Year, the Company shall furnish such information to the Members as soon as reasonably practicable after the end of that Fiscal Year. ARTICLE VII LIMITED LIABILITY AND INDEMNIFICATION Section 7.1 Limitation of Liability. 0 Member or Managing Member shall be liable for the obligations of the Company solely by reason of being a Member or manager or participating in the management or control of the Company?s business and affairs. The liability of the Members and the Managing Member for monetary damages for breach of any duty (other than liability for wrongful distributions) shall be limited or eliminated to the fullest extent permitted by the Act, as the same may be amended from time to time, provided that Such Member or Managing Member acted in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, or Managing Member by this Agreement, except that a Member or Managing Member shall be liable for any such damages incurred by reason of such Member?s or Managing Member?s bad faith or willful misconduct. Any repeal or modification of this Section shall not adversely affect 12 7% ml the right or protection of a Member or Managing Member existing at the time of such repeal or modi?cation. Section 7.2 Indemni?cation. To the fullest extent permitted by the Act, as the same may be amended from time to time, the Company shall indemnify and save harmless the Managing Member and the Members (each an ?Indemnitee?) horn and against any and all clairns, liabilities, damages, losses, costs and expenses (including amounts paid in satisfaction of judgments, compromises, and settlements, as ?nes and penalties, and legal or other costs and expenses of investigating or defending against any claim or alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated, that are incurred by any Indemnitee by reason of the Indemnitee?s status as a current or former Member or Managing Member or by reason of the performance by such Indemnitee of any of the Indemnitee's reSponsibilities under this Agreement, provided that such Indemnitee acted in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member or Managing Member by this Agreement, and further provided that no Member or Managing Member shall be entitled to be held harmless or indemni?ed in respect of any claims, liabilities, damages, losses, costs or expenses incurred by reason of acts or omissions by such Member or Managing Member constituting bad faith or willful misconduct. The rights created by this Section 7.2 shall inure to the bene?t of an lndemnitee's heirs, executors, administrators, legal representatives, successors, and assigns. All indemnification owed to any Indemnitee under this Section shall be paid solely out of the assets of the Company (or insurance proceeds payable to the Company for such purposes), and no Member shall be personally liable with respect to any claim for indemnity or reimbursement from such Indemnitee. Expenses incurred by an Indemnitee in defense or settlement of any claim that may be subject to a right of indemni?cation hereunder shall be advanced by the Company prior to the ?nal disposition thereof, upon receipt of a written agreement by the Indemnitee to repay such amount to the extent that it shall be determined ultimately that such Indemnitee is not entitled to be indemni?ed hereunder. The Company shall be authorized, but not required, to maintain insurance, in reasonable amounts, at reasonable cost and with responsible carriers, at the Company's expense, to insure any amounts indemni?able hereunder as well as to protect the Indemnitees against any expense, liability, or loss of the kind referred to in this Section 7.2, whether or not the Company would have the power to indemnify such Person against such expense, liability or loss under the applicable law. The rights of indemni?cation provided in this Section shall be in addition to any rights to which a Member may otherwise be entitled by contract or as a matter of law; provided that no Member shall be entitled to recover more than once for the same damage. No amendment or repeal of this Section 7.2 that adversely affects the rights of any Indemnitee under this Section 7.2 with respect to the acts or omissions of such Indemnitee at any time prior to such amendment or repeal shall apply to such Indemnitee without the written consent of such Indemnitee. This Section 7.2 shall survive the termination or dissolution of the Company. 1 3 ac Wt ARTICLE RESTRICTIONS ON TRANSFERS OF INTERESTS OF MEMBERS Section 8.1 Conditions Precedent to Transfers. Any purported Transfer by a Member of any Interest in the Company otherwise complying with this Article shall be ineffective unless: The Interest is not a security, the Interest has been registered under federal or state securities laws, or an exemption from such registration exists, and, if required by the Company, the Company receives an opinion of counsel satisfactory to the Members that such Interest is not a security or that an exemption from registration exists; Such Transfer does not violate the terms of or cause the acceleration of any payment date on any permitted loan obtained by the Company; Such Transfer does not cause the Company to be treated as an association taxable as a corporation for federal income tax purposes; Such Transfer does not cause the Company to be treated as a ?publicly traded partnership? within the meaning of Code Section 7704; The transferring Member, at the request of the Company, pays a transfer fee to the Company in an amount suf?cient to cover all reasonable expenses incurred by the Company, including, without limitation, attorneys? fees and the costs of preparation, filing, mailing and publishing of any amendment to this Agreement or the Articles with respect to such'transfer and, if the Member?s successor-in-interest is admitted as a Member of the Company pursuant to Section 9.3, with respect to the admission of such Person as a Member, Any transferee or assignee must deliver his, her, or its written acceptance and adoption of the provisions of this Agreement and must execute such instruments as the Managing Member may deem necessary or advisable to effect the transfer of the Interest; and Such Transfer shall not be to a minor or to any person who, for any reason, lacks the capacity to contract for himself under applicable law; provided, however, that this limitation shall not restrict any transfers permitted by this Agreement to a custodian or trustee for a minor or other person who lacks such contractual capacity. Section 8.2 General. In addition to the restrictions on transfer set forth in Section 8.1 and except as otherwise provided in this Article, no Member may create or suffer to exist any Encumbrance against all, or any portion, of that Member?s Interest or Transfer, directly or indirectly, all, or any portion, of that Member?s Interest without the prior written approval of the other Members; provided, however, that nothing contained herein shall be construed to prevent a Member ?om Transferring ownership interests in such Member entity to one or more-Af?liates of such Member. If the Transfer of a Member?s Interest is approved pursuant to this Section 8.2, upon the consummation of such Transfer, any transferee or assignee of such Interest shall 14 an become an Economic Interest Owner with respect to the Interest unless the transferee or assignee is admitted as a Member pursuant to Section 9.3. Any purported Transfer or Encumbrance of a Member?s Interest not permitted by this Article shall be void and of no effect. Section 8.3 Right of First Refusal. Sale Notice. If any Member of the Company desires to sell all or any portion of the Member?sjptereg (the ?Offered Interest?), and such ember does not receive consent to such sale in With Section 8.2, such Member (the ?Selling Member?) may sell the Offered Interest in accordance with this Section 8.3. The Selling Member must ?rst receive a bona fide written offer to purchase such Offered Interest from a third party (a ?Bona Fide Offer?). Within ten (10) days after receiving the Berra Fide Offer, the Selling Member shall give written notice to the Company and the Members of the intent to sell the Offered Interest (the ?Sale Notice?) pursuant to the terms of the Bona Fide Offer. Such Sale Notice shall contain: The name and address of the proposed purchaser, (ii) The proposed date of such sale, The portion of the Selling Member?s Interest and Percentage Interest of the Offered Interest involved in the proposed sale, (iv) The purchase price for such Offered Interest, The proposed terms of payment, and (vi) Any other terms of such proposed sale. Company Option. Upon receipt of the Sale Notice, the Company shall then have the option, but not the obligation, to purchase from the Selling Member all, or any portion, of the Offered Interest on the terms and at the price speci?ed in the Sale Notice (which price shall be adjusted to take into account the portion of Offered Interest elected to be purchased pursuant to this option). The Company, upon the approval of the Managing Member, shall exercise this option by giving notice of such exercise to the Selling Member and the nontransferring Members within thirty (30) days after the receipt of the Sale Notice (the ?Company Option Period?). Member Option. If the Company does not elect to purchase all of the Offered Interest during the Company Option Period the Selling Member shall give notice to each of the nontransferring Members of the portion of the Offered Interest not elected to be purchased by the Company and for thirty (30) days following the Company Option Period, the nontransferring Members shall then have the option, but not the obligation, to purchase his, her, or its pro-rata share (based on the Percentage Interests of the nontransferring Members) of the Offered Interest not elected to be purchased by the Company on the same terms and for the price set forth in the Sale Notice for such portion of the Offered Interest (the ?Member Option Period?). If any such nontransferring 15 9/3? W3 Member does not elect to purchase his, her, or its pro-rata share of the remaining Offered Interest, any other such nontransferring Member may purchase all or any percentage of such remaining Offered Interest not elected to be purchased (the ?Second Member Option?) by giving to the Company and the other Members written notice of his, her, or its election to do so not later than five (5) days following the termination of the Member Option Period (the ?Second Member Option Period?). If more than one nontransferring Member exercises the Second Member Option to purchase in the aggregate more than the remaining Offered Interest available to be purchased, such Members shall be entitled to purchase a portion of such remaining Offered Interest equal to the ratio that the percentage of the remaining Offered Interest offered to be purchased by such Member bears to the total percentages of the remaining Offered Interest offered to be purchased by all of the Members exercising the Second Member Option. Company and Member Option. Notwithstanding any provision of subsections and (0) above to the contrary, the Company and one or more of the nontransferring Members, by agreement among the Company and all of the nontransferring Members may each buy a portion of the Offered Interest so long as among them all of the Offered Interest is purchased. This option shall expire at the same time as the Second Member Option Period. Closing. The closing of the purchase of any Offered Interests provided in this Section shall occur at the principal place of business of the Company on a date to be determined by the Company, the nontransferring Members, or both, as applicable, but in any event not later than thirty (30) days following the exercise of all purchase options that in the aggregate agree to purchase all, but not less than all, of the Offered Interest. At such closing, upon receipt of the purchase price, the Selling Member shall deliver the Offered Interest free and clear of all liens, security interests, and competing claims and shall execute such documents for this purpose as the purchaser or purchasers may reasonably require to evidence and carry out the transfer of the Offered Interest to the purchas er(s). Failure to Exercise Options. If the Company, the nontransferring Members, or both do not elect to purchase all of the Offered Interest pursuant to the options set forth in Section 8.3(b) through Section no election to purchase a portion of such Offered Interest shall be effective and the Selling Member may, for a period of thirty (30) days after the expiration of the Member Option Period, transfer the Offered Interest on terms and conditions no more favorable to the purchaser(s) than those set forth in the Sale Notice; provided, that such transfer does not violate Section 8.1. If the Selling Member fails to transfer the Offered Interest within such thirty (30) day period, then the Offered Interest shall again become subject to all the terms and conditions of this Agreement and may not thereafter be transferred except in the manner and on the terms provided herein. A purchaser of the Offered Interest pursuant to this Section 83(1) who is not already a Member shall be an Economic Interest Owner with respect to the Offered Interest, unless such purchaser is admitted as a Member as provided in Section 9.3. If a purchaser of an Offered Interest pursuant to this Section 16 *7 Till 8.3(t) is already a Member such Person shall have all the rights of a Member with reSpect to the Offered Interest purchased. Section 8.4 Drag?Along Rights. If the Members receive a bona ?de third party offer to acquire all of the Interests of the Company (?Offer?) and a Majority in Interest of the Members desire to accept such Offer, all of the Members and Economic Interest Owners shall sell their Interests pursuant to such Offer in exchange for their proportional share of the net sales price; and execute such documents as a Majority in Interest of the Members determines are necessary to effect such sale. Section 8.5 HD DEV NYLO. LLC Put Right. At any time prior to the date a temporary certi?cate of occupancy is issued for the hotel contemplated to be constructed on the Property, HD DEV NYLO, LLC shall have the right (upon the provision of written notice to the Company and the other Members (the ?Put Notice?)) to sell and Key shall have the obligation to purchase or cause the Company to redeem HD DEV NYLO, entire Interest for $1,000,000 (the ?Put Price?). The closing of the purchase of HD DEV NYLO, Interest pursuantto this Section shall occur at the principal place of business of the Company on a date to be determined by the purchaser, but in any event not later than thirty (30) days following the delivery of the Put Notice. At such closing, upon receipt of the Put Price, HD DEV NYLO, LLC shall deliver the Interest free and clear of all liens, security interests, and competing claims and shall execute such documents for this purpose as the purchaser may reasonably require to evidence and carry out the transfer of the Interest to Key or the redemption of the Interest by the Company. Upon payment of the Put Price and delivery of the Interest to the purchaser in accordance with this Section 8.5, HD DEV NYLO, LLC shall cease to be a Member of the Company and shall have no further right-s with respect to the purchased Interest. Section 8.6 No Voluntary Withdrawal. Except as otherwise speci?cally provided herein, neither a Member nor Economic Interest Owner may withdraw or compel the Company to purchase or otherwise liquidate all or any portion of such Person?s Interest or (ii) extinguish, abandon, or otherwise diminish such Person?s obligations in respect of his, her, or its Interest. Section 8.7 Consequences of Transfers of a Member?s Interest. Except as otherwise provided in this Agreement, upon and contemporaneously with any Transfer of a Member?s Economic Interest, the transferring Member shall cease to have any residual rights, bene?t or authority of a Member associated with the portion of the Economic Interest transferred, including, without limitation, any right to vote. Section 8.8 Reasonableness of Restrictions. Each Member hereby acknowledges the reasonableness of the restrictions on the transfer of Interests imposed by this Agreement in view of the Company purposes and the relationship of the Members. Accordingly, the restrictions on the transfer of Interests contained herein shall be speci?cally enforceable. Section 8.9 Distributions, Allocations and Capital Accounts with Resraect to Transferred Interests. If any Interest is transferred during any Fiscal Year in compliance with the provisions of this Article then Pro?ts, Losses, and all other items attributable to the 1'7 X47 ill?) Interest for such period shall be divided and allocated between the transferor and the transferee by taking into account their varying interests during the period in accordance with Code Section 706(d), using any conventions permitted by the Code and selected by the consent of the Members; all distributions on or before the date of such transfer shall be made to the transferor, and all distributions thereafter shall be made to the transferee; and the transferee shall succeed to and assume the Capital Account, Percentage Interest, and Capital Contribution obligation amounts, if any, of the transferor to the extent related to the transferred Interest. ARTICLE IX ADDITIONAL MEMBERS Section 9.1 Additional Members. The Managing Member may issue additional Interests in the Company to any Persons upon approval of a Majority in Interest of the Members of the Percentage Interests of Interests issued hereunder, (ii) the amount to be contributed to the Company in exchange for such Interests, and the admission of such Persons as Members or Economic Interest Owners of the Company; and such Persons? delivery of their written acceptance and adoption of the provisions of this Agreement; provided, that prior to issuing any additional Interests for cash to Persons who are not then Members of the Company, the Company shall, to the extent permitted by applicable securities laws, ?rst extend to each Member the preemptive right to acquire a pro rata part (based on the Percentage Interests of the Members) of the additional Interests to be issued. No Member shall have any obligation to acquire such additional Interests. All additional Interests issued in any instance under this Section 9.1 shall be issued at the same purchase price and terms as those offered, or to be offered, to such Person. To the extent permitted by applicable securities laws, a Member may exercise the preemptive right granted under this subsection by giving notice to the Company of such Member?s exercise within ?fteen (15) business days (the ?Exercise Period?) after receipt of written notice ?om the Company describing in reasonable detail the Interests being so offered, the purchase price thereof (if any), the payment terms, and the Member?s pro rata portion of such Interests (the ?Preemptive Right Notice?). If a Member fails to exercise its preemptive right to acquire all or any portion of its pro rata part of any additional Interests within the Exercise Period prescribed pursuant to this Section 9.1, then for a period of ninety (90) days after the expiration of the Exercise Period, the Company will be free to issue any Interests not elected to be purchased by the Members on terms and conditions no more favorable to the acquirer(s) than those offered to the Members pursuant to the Preemptive Right Notice. If the Company fails to issue the Interests within this ninety (90) day period, any Interests issued by the Company to any Person must be reoffered to the Members pursuant to this Section 9.1. Section 9.2 Rights of Economic Interest Owners. If a Transfer of an Interest complies with the provisions of Article but the Person acquiring such Interest is not admitted as a Member pursuant to the terms of this Agreement or if a Person is issued only an Economic Interest by the Company and is not admitted as a Member, such Person shall become an Economic Interest Owner with respect to such Interest. An Economic Interest Owner is entitled only to an Economic Interest with respect to any Interest received and shall have no other rights, benefits or authority, of a Member under this Agreement or the Act with respect to such Interest, including, without limitation, no right to vote, no right to inspect the books or records of the Company, no right to bring derivative actions on behalf of the Company, and no 18 other rights of a Member under the Act or this Agreement (including, no right to participate in calls for Additional Capital Contributions pursuant to Section 2.2). An Economic Interest Owner; however, shall be subject to all of the restrictions, obligations, and limitations with respect to its Interest that are applicable to Members under this Agreement as if an original party to this Agreement, including without limitation, the restrictions on Transfer of an Interest contained in Article and all provisions of this Agreement applicable to the maintenance and adjustment of Capital Accounts and Percentage Interests and the return of Capital Contributions; provided, however, that an Economic Interest Owner of an Interest shall not assume the transferor?s obligation under the Act to return wrongful distributions, unless the Economic Interest Owner expressly assumes such obligation in writing. Section 9.3 Admission of Economic Interest Owners as Members. Except as otherwise speci?cally provided in this Agreement, no Person taking or acquiring, by whatever means, the Interest of any Member in the Company shall be admitted as a Member unless a Majority in Interest of the Members consent to the admission of such Person as a Member (the giving or withholding of such consent shall be in the sole, absolute and arbitrary discretion of the Members); provided, however, that any transferee who is already a Member shall automatically be a Member, without further action on the part of the Company or the other Members, with respect to any Interest transferred to him, her or it. A transferee of an Interest admitted as a Member pursuant to this Agreement shall have the same rights and powers and be subject to the same restrictions, obligations, and liabilities with respect to the Interest as the Member from whom the Interest was transferred. Section 9.4 Percentage Interest Adiustments. Except as otherwise provided by Section 2.3, the Percentage Interests of all Members and Economic Interest Owners are subject to adjustment upon the issuance of any additional Interests, the additional contribution of capital, the redemption or repurchase of any Interests, the forfeiture of any Interests or other similar transactions, that are not effected on a pro rata basis among all Members, which adjustments shall (except as otherwise provided by Section 2.3) be made pro rata on the basis of the then existing Percentage Interests. ARTICLE CESSATION OF MEMBERSHIP Section 10.1 When Membership Ceases. Notwithstanding anything in the Act to the contrary and in addition to any other events that speci?cally provide for the cessation of membership of a Member in this Agreement, a Person who is a Member shall cease to be a Member upon the occurrence of one of the following events: The sale, assignment, or transfer, in accordance with this Agreement, of the Member's entire Economic Interest; In the case of a Member who is an individual, the death, or incompetence, as determined by order of a court of competent jurisdiction, of the Member; provided, however, that Article shall govern the transfer of said Member?s Interest; or 19 The occurrence of a Bankruptcy Event with respect to the Member?s Interest; provided, however, that Article shall govern the transfer of such Member?s Interest. A Person who ceases to be a Member shall have only the rights of an Economic Interest Owner, except to the extent such rights are transferred in accordance with this Agreement and neither the Company nor any other Member or Members shall have any obligation to purchase such dissociated Member?s Interest. In the event of the death of a Member who is an individual, such Economic Interest shall be pass to the Member?s family as set forth in the Member?s last will and testament or as provided under applicable intestacy law of the state in which the Member resided. ARTICLE XI DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS Section 11.1 Dissolution Triggers. The Company shall dissolve only upon the ?rst to occur of any of the following events: . The approval of a Majority in Interest of the Members following the date all Capital Commitments have been paid in full or the unanimous approval of the Members prior to such date; The entry of a decree of judicial dissolution or the administrative dissolution of the Company as provided in the Act, unless action is taken to cure the administrative dissolution as permitted under the Act; or The cessation of membership of the last remaining Member, unless, within a reasonable period of time following the cessation of membership of the last remaining Member, the assignee or the ?duciary of the estate of the last remaining Member agrees in writing that the business of the Company may be continued until the admission of the assignee or the ?duciary of the estate of the Member or its designee to the Company as a Member, which, notwithstanding anything in this Agreement to the contrary, shall occur automatically upon its acceptance of the Interest of the last remaining Member effective as of the occurrence of the event that causes the withdrawal of the last remaining Member. Section 11.2 Winding Up. Upon a dissolution of the Company, the Managing Member, or if there is no Managing Member the Members, or if there are no Members, a court? appointed liquidating trustee (hereinafter any of the aforementioned shall be referred to as ?Liguidator?), shall take full account of the Company's assets and liabilities and wind up the affairs of the Company. Except as provided in Section 1 1.5 below, the Liquidator charged with winding up the Company shall settle and close the Company's business and dispose of and convey the Company's non cash assets as as reasonably possible following dissolution as is consistent with obtaining the fair market value for the Company's non cash assets. Section 11.3 Liquidating Distributions. Upon the disposition of the Company's non cash assets, and after giving effect to all allocations under Article 111, any allocations required by 20 %Olti Exhibit B, and all distributions under Article IV for all prior periods, including the period during which the dissolution occurs, the Company's cash and the proceeds from-the disposition of the Company's non cash assets shall be distributed in the following order: First to the Company's creditors, including Members who are creditors, to the extent permitted by law, in satisfaction of liabilities of the Company; Second, after giving effect to the distributions set forth in Section 11.31a), to the setting up of any reasonable reserves which the Liquidator deems reasonably necessary for any contingent conditional or unmatured liabilities or obligations of the Company; and Finally, after giving effect to the distributions set forth in Section 1 1.3(a) and Section among the Members in accordance with the provisions of Section . Section 11.4 Reserves. After all the assets of the Company have been distributed pursuant to Section 11.3 the Company will terminate; provided, that if at any time thereafter any ?inds in any reserve referred to in Section 11.3gb) are released because the need for such reserve has ended, such funds will be distributed to the Members in the same manner as if such distribution had been made to the Members pursuant to Section 113(0). Section 11.5 Liquidating Distributions in Kind. If, upon the approval of a Majority in Interest of the Members, any assets of the Company are distributed in kind, such assets shall be distributed to the Members entitled thereto as tenants-in-common in the same prOportions as they would have been entitled if such prOperty had been sold for cash and the net proceeds thereof distributed to the Members. The Liquidator will value any property distributed in kind based upon such property?s fair market value as determined using such reasonable method of valuation as the Liquidator may adopt. The fair market value of such property will be the gross fair market value of such property for purposes of making adjustments in Agreed Value provided in this Agreement. Any adjustments in Capital Accounts required by this Agreement upon a noncash, liquidating distribution will be posted to the Capital Accounts as of the date such distribution is made. Section 11.6 No De?cit Restoration Obligation. Notwithstanding anything in this Agreement to the contrary, if the Company is liquidated within the meaning of Regulations Section and any Member has a de?cit balance in the Member?s Capital Account (after giving effect to all contributions, distributions and allocations for all years, including the year during which such liquidation occurs), such Member shall have no obligation to make any contribution of capital to the Company with reSpect to such de?cit, and such de?cit shall not be considered a debt owed to the Company or to any other Person whatsoever. Section 11.7 Articles of Dissolution. Upon the dissolution and commencement of the winding up of the Company, the Liquidator shall cause Articles of Dissolution to be executed on behalf of the Company and ?led with the New York Department of State, and the Liquidator 21 we. shall execute, acknowledge, and ?le any and all other instruments necessary or appropriate to re?ect the dissolution of the Company. ARTICLE XII MISCELLANEOUS Section 12.1 Notices. Except as otherwise speci?cally provided in this Agreement, any notice, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be delivered personally to the Person or to an of?cer of the Person to whom the same is directed, or sent by regular or certi?ed United States mail, by facsimile transmission with continuation of transmission, by private mail or courier service, or by e-mail addressed as follows: if to the Company, to its principal of?ce address, or to such other address as may be speci?ed from time to time by the Company; if to a Member, to the address set forth on Exhibit A attached hereto, or to such other address as the Member may specify from time to time to the Company. If sent by certi?ed United States mail, postage and charges prepaid, return receipt requested, such notice shall be deemed to be delivered, given, and received two business days after the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, and if sent by e?mail or facsimile transmission, such notice shall be deemed to be delivered, given, and received upon electronic continuation of successful transmission. Notices delivered by any other means shall be deemed to be delivered, given, and received for all purposes as of the date of actual receipt. Section 12.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the bene?t of the Members and their respective heirs, legatees, legal representatives, successors, transferees, and assigns. Section 12.3 Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member. No provision of this Agreement is to be interpreted as a penalty upon, or a forfeiture by, any party to this Agreement. Section 12.4 Dispute Resolution; Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or any breach hereof that cannot be resolved by the parties shall, upon the request of any party involved, be submitted to arbitration in Rockland County, New York, pursuant to the Commercial Rules (the ?Rules?) of the American Arbitration Association by an arbitrator mutually agreed upon by the parties (but without utilizing the facilities of the if the parties so agree). Such arbitrator shall be selected by the parties hereto no later than ten (10) days after noti?es each party that a demand for arbitration has been ?led (?Arbitrator Designation Period?). In the event the parties are unable to agree on an arbitrator within the Arbitrator Designation Period, the shall appoint a neutral arbitrator in accordance with the Rules no later than ten (10) days following the expiration of the Arbitrator Designation Period. The designated arbitrator shall not be an agent, employee, shareholder, or Af?liate of any party. The arbitrator must follow the law of the State of New York and award to the prevailing party its costs of the proceeding, including attomeys? fees and expenses. The decision of the arbitrators shall be ?nal and binding on the parties, and judgment upon the 22 ?at) decision may be entered in the state courts or federal courts having jurisdiction over Rockland County, New York. Section 12.5 Entire Agreement; No Oral Operating Agreements. This Agreement supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter hereof and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. The Company shall have no oral operating agreements. Section 12.6 Amendments to the Articles and Operating Agreement. Any amendment to this Agreement or the Articles shall require the unanimous consent of the Members; provided, however that the Managing Member, with the consent of a Majority in Interest of the Members, may adopt any amendment necessary or desirable: To satisfy any requirement or condition contained in applicable statute or in any opinion, directive, order, ruling or regulation of the Securities and Exchange Commission or any state securities commission or other governmental agency; (ii) To re?ect any changes in ownership permitted or required by this Agreement; To re?ect any changes to the information stated on Exhibit or (iv) To conform this Agreement to the requirements of the Code and the Regulations, or to amend this Agreement as permitted by Article or B.1 1 of Exhibit B. Section 12.7 Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof. Section 12.8 Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement. Section 12.9 Additional Documents. Each Member, upon the request of the Company, shall perform all further acts and execute, acknowledge and deliver any documents that may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement. Section 12.10 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may require. Section 12.11 Governing Law; Consent to Jurisdiction. The laws of the State of New York (without regard to con?icts of laws principles) shall govern the validity of this Agreement, the construction and interpretation of its terms, the organization and internal affairs of the Company, and the limited liability of the Members. Each Member hereby irrevocably consents 23 W0 \li .3 45 to the personal jurisdiction of the courts of the State of New York with respect to matters arising out of or related to this Agreement. Section 12.12 Waiver of Action for Partition. Each of the Members irrevocably waives any right that it may have to maintain any action for partition with respect to any of the assets of the Company. Section 12.13 Counterpart Execution. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. No single counterpart need contain the signatures of all parties hereto, provided, that one or more counterparts collectively contain the signatures of all Members. Section 12.14 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company. No creditor of the Company will be entitled to require the Members to solicit or accept any loan or additional capital contribution for the Company or to enforce any right which the Company may have against a Member, whether arising under this Agreement or otherwise. Section 12.15 Tax Matters Member. Until changed by a Majority in Interest of the Members, WY Management LLC is designated as The "Tax Matters Member" for federal income tax purposes within the meaning of Code Section 6221, et seq. The Tax Matters Member shall use its reasonable efforts to comply with the responsibilities outlined in Section 6221 through 6233 of the Code (including any Regulations promulgated thereunder). Any accountants and/or lawyers retained by the Company in connection with any Internal Revenue Service audit of the Company shall be selected by the Tax Matters Member and the fees therefor shall be expenses of the Company. The Tax Matters Member may not take any action contemplated by Section 6222 through 6232 of the Code without the consent of a Majority in Interest of the Members. Section 12.16 Waiver of Default. The failure of any party to exercise any remedy available to it in the event of a default by any other party hereunder shall not be deemed to be a waiver of any other default, or of any repetition of the initial default. Section 12.1? Time of the Essence. Time is of the essence with respect to each and every term and provision of this Agreement. Section 12.18 Exhibits. The Exhibits to this Agreement, each of which are incorporated by reference, are: EXHIBIT A: Ownership Exhibit. EXHIBIT B: Regulatory Allocations EXHIBIT C: Glossary of Terms [Signature page follows] 24 IN WITNESS WHEREOF, the Members have executed this Operating Agreement of NYLO NYACK LLC effective as of the date set forth above and the Members do hereby cause this Agreement to be duly adopted by the Company. CAPITAL MEMBERS: KEY REAL ESTATE HOLDINGS, LLC BY: KAW NYLO NYACK, LLC, Managing Member BY: AW r) Ken'y Wellington, Memb HD DEV By: I Name: Title: MANAGING MEMBER: WY MANAGEMENT LLC By: Kai/b} WdLiLngI/i Namam 1 Title: Wm 25 EXHIBIT A TO THE OPERATING AGREEMENT OF NYLO NYACK LLC A New York Member-Managed Limited Liability Company MEMBERSHIP EXHIBIT Capital Initial Capital Percentage Name and Notice Address Commitment Contribution Interest Capital Member: Key Real Estate Holdings, LLC $15,000,000 $3,890,000 93.75% - 79 Main Street, 2nd Floor - Nyack, New York 10960 Capital Member: HD DEV NYLO, LLC $1,000,000 $1,000,000 6.25% Howard Dean Esq. 150 White Plains Road Tar?rytown, NY 10591 *Managing Member: WY Management LLC $0 $0 0% 79 Main Street, 2nd Floor Nyack, New York 10960 $16,000,000 $4,890,000 100% *The Managing Member is entitled to receive the Can-ied Interest as set forth in Section of the Operating Agreement. l?A 5% EXHIBIT TO THE OPERATING AGREEMENT OF NYLO NYACK LLC A New York Member-Managed Limited Liability Company REGULATORY ALLOCATIONS The Regulatory Allocations set forth herein are necessary to cause the overall items of Company income, gain, loss and deduction to have substantial economic effect pursuant to the alternate test for economic effect set forth in Treasury Regulations Section and shall be interpreted in light of that purpose. Section B.1 Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year (or other applicable period) shall be allocated among the Members in accordance with their Percentage Interests. Section B2 Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for a Fiscal Year (or other applicable period) shall be specially allocated to the Member who bears the economic risk of loss with reSpect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulations Section 1304?20). Section 13.3 Minimum Gain Chargeback. Except as otherwise provided in Section of the Regulations, if there is a net decrease in Company Minimum Gain for a Fiscal Year (or other applicable period), each Member shall be specially allocated items of Company income and gain for such Fiscal Year (or other applicable period) (and, if necessary, subsequent Fiscal Years or other applicable periods) in an amount equal to such Member?s share of the net decrease in Company Minimum Gain, determined in accordance with Section of the Regulations. This provision is intended to comply with the minimum gain chargeback requirement in Section of the Regulations and shall be interpreted consistently therewith. Section 13.4 Member Nonrecourse Debt Minimum Gain Chargeback. If during a Fiscal Year (or other applicable period) there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt, then any Member with a share of that Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section of the Regulations shall, subject to the exceptions set forth in Regulation Section be allocated items of income and gain for the Fiscal Year (or other applicable period) (and, if necessary, for succeeding Fiscal Years or other applicable periods) equal to that Member?s share of the net decrease in the Member Nonrecourse Debt Minimum Gain. The foregoing is intended to be a ?chargeback of partner nonrecourse debt minimum gain? required by Regulation Section and shall be interpreted and applied in all respects in accordance with that Regulation. Section 13.5 Quali?ed Income Offset. If during any Fiscal Year a Member unexpectedly receives an adjustment, allocation or distribution described in Regulation Section (5) or (6), which would cause or increase an Adjusted Capital Account De?cit if the allocations provided for in this Agreement were made as if this Section B.5 were not part of this Agreement, there shall be allocated to such Member items of income and gain (consisting of a pro rata portion of each item of income, including gross income, and gain for such Fiscal Year) in an amount and manner suf?cient to eliminate such Adjusted Capital Account Deficit as quickly as possible. The foregoing is intended to be a ?quali?ed income offset" provision as described in Regulation Section and shall be interpreted and applied in all respects in accordance with that Regulation. Section B.6 Gross Income Allocation. In the event a Member has a de?cit Capital Account balance at the end of any Fiscal Year (or other applicable period) that is in excess of the amount if any, 0/310 I l~B such Member, in the manner and to the extent provided in Regulations Section is unconditionally obligated to contribute to the Company pursuant to any provision of this Agreement or applicable law; and the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Sections and of the Regulations, such Member shall be specially allocated items of Company gross income and gain, in the amount of such excess, as quickly as possible; provided that, an allocation pursuant to this Section B.6 shall be made only if and to the extent that such Member would have a de?cit Capital Account in excess of such sum after all other allocations provided for in this Exhibit and Section 3.1 tentatively have been made as if Sections B5 and Bo were not in this Agreement. Section Limitation on Losses. No allocation of Losses pursuant to Section 3.1 shall be made to a Member if it would cause the Member to have an Adjusted Capital Account De?cit at the end of any Fiscal Year. In the event that some, but not all, of the Members would have an Adjusted Capital Account Deficit as a consequence of an allocation of Losses pursuant to Section hereof, Losses shall be allocated to the other Members to whom Losses may be allocated without violating the previous sentence in prOportion to their Percentage Interests as among themselves. All Losscs in excess of the limitations set forth in the previous two sentences shall be allocated to the Members in the same manner that Pro?ts and Losses would be allocated among the Members for such Fiscal Year. Section B.8 Curative Allocations. The purpose and intent of the Special allocations provided for in the Regulatory Allocations, Section and Clauses and of the second sentence of Section B.ll are intended to comply with the provisions of Regulations Sections and 1.704-2, and such special allocations are to be made to accomplish that result. It is intended that to the extent possible, the application and effect of all Regulatory Allocations and allocations pursuant to Section and Clauses and of the second sentence of Section B.11 shall be minimized and offset with other Regulatory Allocations or special allocations of other items of Company income, gain, loss or deduction pursuant to this Section B. 8. Therefore, notwithstanding any other provision of A__r_t__icle of this Agreement or _E_xhibit (other than the Regulatory Allocations, allocations pursuant to Section B. 91c) and Clauses and of the second sentence ofS ection B. 11 the Managing Member shall make such offsetting special allocations of Company income, gain, loss, or deduction or items thereof so that, after such offsetting allocations are made, each Member?s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations, allocations pursuant to Section and Clauses and of the second sentence of Section B.11 were not part of this Agreement and all Company items were allocated pursuant to Section 3.1. The Managing Member shall take into account any future allocations under Sections 13.3 and B4 that, although not yet made, are likely to offset other allocations previously made under Sections BI and B2. Section B.9 Rules Applicable to Allocations. The following rules shall be applicable when applying the Regulatory Allocations: Ordering. To the extent required by the Code, any allocations made pursuant to this Exhibit shall be made in the following order: Section B.l' (ii) Section Section (iv) Section 13.4; Section (vii) Section 13.6? Section (ix) Section and Section 3.1. These allocations shall be made consistently with the requirements of Regulation Section 1.704- 20). 41/ all Waiver of Minimum Gain Chargebaek Provisions. If a Majority in Interest of the Members determines that either of the two (2) minimum gain chargeback provisions contained in this Article would cause a distortion in the economic arrangement among the Members, (ii) it is not expected that the Company will have suf?cient other items of income and gain to correct that distortion, and the Members have made Capital Contributions or received net income allocations that have restored any previous Nonrecourse Deductions or Member Nonrecourse Deductions, such Members shall have the authority to request on behalf of the Company that the Internal Revenue Service waive the minimum gain chargeback or member nonrecourse debt minimum gain chargeback requirements pursuant to Regulations Sections and 1.704? The Company shall pay the expenses (including attomeys' fees) incurred to apply for the waiver. The Company shall 00py all Members on all correspondence to and from the lntemal Revenue Service concerning the requested waiver. (0) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section or to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member?s Interest in the Company, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations. Section 8.10 Code Section 704(0) Tax Allocations. Income, gain, loss and deduction with reSpect to any prOperty contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Agreed Value pursuant to any method allowable under Code Section 704(0) and the Regulations promulgated thereunder. In the event the Agreed Value of any Company asset is adjusted, subsequent allocations of income, gain, loss and deduction with respect to such asset shall take into account any variation between the adjusted basis of such asset for federal income tax purposes and its Agreed Value pursuant to any method allowable under Code Section 704(0) and the Regulations promulgated thereunder. Any elections or other decisions relating to allocations under this Section shall be made by?the Managing Member. Allocations pursuant to this Section are solely for purposes of federal, state and local taxes and shall not be taken into account in computing any Member?s Capital Account or share ofProfits, Losses, other items or distributions pursuant to any provision of this Agreement. Section 13.1 1 Discretionary Powers; Allocation Savings Provision. The allocation methods set forth in Article and this Exhibit are intended to allocate Pro?ts and Losses (determined without regard to Subparagraph of the de?nition of Profits and Losses set forth on Exhibit C) to Members in accordance with their economic interests in the Company while complying with the requirements of Subchapter of Chapter 1 of Subtitle A of the Code (particularly Section 704 thereof) and the Regulations promulgated thereunder. If, in the opinion of the Managing Member, the allocation of Profits and Losses (or items of income, gain, loss and deduction specially allocated pursuant to this Agreement) in such manner shall not satisfy the requirements of Code Section 704 or the Regulations thereunder or any state and local tax laws which may now or hereafter exist; comply with any other provisions of the Code and Regulations; (0) properly take into account any expenditure made by the Company, (ii) transfer of all or part of an Interest of a Member or admission of new Members; properly re?ect the economic arrangement of the Members; (0) preserve the equality between the Capital Accounts of the Members and the amount of the Company capital reflected on the Company?s balance sheet, as computed for book purposes, in accordance with Regulations Section or provide for a given situation or set of circumstances then, notwithstanding anything to the contrary contained in this 3?8 9 Agreement, Pro?ts and Losses (or items of income, gain, loss or deduction specially allocated pursuant to this Agreement) shall be allocated in such manner as the Managing Member, in the exercise of its good faith discretion, determines to be so required so as to reflect properly the foregoing premises and conditions of this Section B.11, and this Agreement shall thereby be amended to re?ect any such change in the method of allocating Pro?ts or Losses (or items of income, gain, loss or deduction specially allocated pursuant to this Agreement); provided, however, that any change in the method of allocating Pro?ts or Losses (or items of income, gain, loss or deduction specially allocated pursuant to this Agreement) shall be made in good faith and shall not materially alter the economic arrangement of the Members or otherwise unfairly discriminate against any Member. Section B.12. Rules of Construction. For purposes of determining the character (as ordinary income or capital gain) of any Pro?t allocated to the Members pursuant to Section 3.1 or this Exhibit such portion of the taxable income of the Company allocated pursuant to Section 3.1 or this Exhibit B, which is treated as ordinary income attributable to the recapture of depreciation shall, to the extent possible, be allocated among the Members in the proportion which the amount of depreciation previously allocated to each Member bears to the total of such depreciation allocated to all Members. This Section B.12 shall not alter the amount of allocations among the Members pursuant to Section 3.1 or this Exhibit B, but merely the character of income so allocated. Section 3.13. Excess Nonrecourse Liabilities. ?Excess nonrecourse liabilities? of the Company (within the meaning of Regulations Section 1.752?3) will be allocated in accordance With the manner in which it is reasonably expected that the deductions attributable to such excess nonrecourse liabilities will be allocated. 4?13 EXHIBIT TO THE OPERATING AGREEMENT OF NYLO NYACK LLC A New York Member?Managed Limited Liability Company GLOSSARY OF TERMS Many of the capitalized words and phrases used in this Agreement are de?ned below. Some de?ned terms used in this Agreement are applicable to only a particular Section or Sections of this Agreement or an Exhibit and are not listed below, but are de?ned in the Section(s) or Exhibit in which they are used. ?Act" shall mean the New York Limited Liability Company Law, as amended from time to time, (including any successor limited liability company act thereto and corresponding provisions of succeeding law). ?Adjusted Capital Account De?cit? shall mean, the de?cit balance, if any, in a Member?s Capital Account as of the end of a Fiscal Year (or other applicable period), after giving effect to the following adjustments: increase the Capital Account by any amounts which such Person is obligated to restore, or is deemed to be obligated to restore, pursuant to the penultimate sentences of Regulations Section and Section increase the Capital Account by any amounts described in Section of the Regulations which such Member is unconditionally obligated to contribute to the Company pursuant to this Agreement or applicable law; (0) increase the Capital Account by the amount of any indebtedness of the Company for which such Person bears the economic risk of loss pursuant to Regulations 1.752-1, but which is not a Nonrecourse Liability or Member Nonrecourse Debt; and decrease the Capital Account by reasonably expected adjustments, allocations and distributions described in Regulation Sections (5) and (6). ?Af?liate" shall mean, with respect to the Company, any Person directly or indirectly controlled by, controlling, or under common control with the Company, and (ii) any Member, manager, officer or other representative of the Company, and with respect to any manager or Member, any Person directly or indirectly controlled by, controlling, or under common control such manager or Member, (ii) any member, shareholder, of?cer, director, trustee, or partner of a Member or manager, and any Person related to any degree by blood or marriage to a manager or Member, as applicable. ?Agreed Value? shall mean with respect to any non cash asset of the Company, the asset?s adjusted basis for federal income tax purposes, except as follows: The initial Agreed Value of any noncash asset contributed to the capital of the Company by any Member shall be its gross fair market value on the date of the contribution, as agreed to by the contributing Member and the Company (the Company?s approval shall be subject to the provisions of Section 5.8). The Agreed Values of all non cash assets of the Company, regardless of how those assets were acquired, shall be adjusted from time to time to equal their gross fair market values, as reasonably determined in writing by the Managing Member, at such times as are permitted by Regulations Section if such Members reasonably l?C ?/19 i/l/d determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. The Agreed Value of any noncash asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution as determined by Managing Member. The Agreed Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section Subparagraph to the de?nition of Pro?ts and Losses in this Exhibit and Section B.9(c} of this Agreement; provided, however, that Agreed Values shall not be adjusted pursuant to this Subparagraph to the extent that the Managing Member determines that an adjustment pursuant to Subparagraph of this Paragraph is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this Subparagraph If the Agreed Value of an asset has been determined or adjusted pursuant to Subparagraphs or of this Paragraph, such Agreed Value shall thereafter be adjusted by the Depreciation taken into account With reSpect to such asset for purposes of computing Pro?ts and Losses. ?Agreement" shall mean this Operating Agreement as amended from time to time. ?Articles" shall mean the Articles of Organization of the Company, as ?led with the New York Department of State and as amended or restated from time to time. ?Bankruptcy Event" shall be deemed to have occurred with respect to a Member when the Member becomes a debtor in bankruptcy, (ii) executes an assignment for the benefit of creditors, including the execution of a deed of trust or deed of assignment for the bene?t of creditors causing all debts of the person to become due and payable under, or petitions for, consents to, or acquiesces in the appointment of a trustee, receiver, or quuidator of the person or all or substantially all of the person?s property. ?Capital Account? shall mean, with respect to each Member, an account maintained and adjusted for each Member in accordance with Section 2.6. ?Capital Commitment? means the amount of capital a Member is required to contribute to the Company as set forth in Section 2.1 of this Agreement. ?Capital Contribution(s)" shall mean any contribution, as defined in the Act, to the capital of the Company in cash, property, services rendered or binding obligation to contribute cash or property whenever made. ?Carried Interest? shall mean the distributions to which the Managing Member is entitled pursuant to Section ?Capital Member" shall mean any Member that has made Capital Contributions to the Company. The initial Capital Members are designated as such on Exhibit A. ?Capital Transaction" shall mean a transaction that results in the sale, conversion, condemnation, or other disposition of all or any of the assets of the Company, (ii) in which the Company elects to retain the proceeds of insurance covering the damage or destruction of Company assets rather than repair or reconstruct the damage with such proceeds, or any other transaction that, in accordance with generally accepted accounting principles, is considered capital in nature. ?Cash From Operations? shall mean with respect to the period for which the Net Cash From Operations is being determined the gross cash revenues available to the Company from any source, other than Net 2C Cash ?om Capital Transactions or Re?nancings, (ii) Capital Contributions, or funds the Company receives from loans. ?Code" shall mean the Internal Revenue Code of 1986, as amended from time to time (including corresponding provisions of succeeding law). ?Company" shall mean NYLO NYACK LLC. ?Company Minimum Gain? has the meaning set forth in Sections and of the Regulations. ?Depreciation? shall mean with reSpect to a particular asset of the Company, for each Fiscal Year (or other applicable period), an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to such asset for such Fiscal Year (or other applicable period) except that if the Agreed Value of such asset differs from its adjusted basis for federal income tax purposes, at the beginning of such Fiscal Year (or other applicable period), Depreciation for such asset shall be an amount which bears the same ratio to such beginning Agreed Value as the federal income tax depreciation, amortization or other cost recovery deduction with respect thereto for such Fiscal Year (or other applicable period) bears to such beginning adjusted tax basis; provided, however that if the adjusted basis for federal income tax purposes of an asset is zero at the beginning of such Fiscal Year (or other applicable period), Depreciation for such asset shall be determined with reference to its Agreed Value using any reasonable method selected by the Managing Member. ?Economic Interest? with respect to an Interest shall mean only the right to any Capital Account and the right to receive the distributions and allocations with respect to such Interest that a Member would have been entitled to with respect to such Interest as set forth in this Agreement. ?Economic Interest Owner? shall mean a Person who owns an Economic Interest in the Company, but who is not admitted as a Member and whose rights and obligations are described in more detail in Section 9.2 of this Agreement. ?Encumbrance? means any lien, mortgage, pledge, collateral, assignment, security interest, hypothecation or other similar instrument. ?Fiscal Year? shall mean the Company's ?scal year, which shall be the calendar year. ?Interest? shall mean a Member?s or Economic Interest Owner?s entire interest in the Company including all bene?ts to which the owner of such Interest is entitled under this Agreement and applicable law, together with all obligations of such Member under this Agreement and applicable law. ?Interest Rate? ?Interest Rate.? The prime rate of interest as reported in the ?Money Rates? section of the Wall Street Journal on the date of determination plus ?Invested Capital? of a Member means the Capital Contributions of such Member. ?Majority in Interest? shall mean with respect to any provision of this Agreement requiring the vote, approval, consent or similar action by a majority in interest of the Members, with respect to any matter, the Members who in the aggregate own more than ?fty percent of the Percentage Interests of all Members entitled to vote on a matter, determined as of the date of such vote, approval, consent or action unless an earlier record date has been established for determining the Members entitled to participate in such action, in which case the determination shall be made as of the earlier record date. ?Managing Member" has the meaning set forth in Section 5.1. ?Member? means any one of the Members. 3hC in) ?Member Nonrecourse Debt" has the meaning set forth in Section of the Regulations. ?Member Nonrecoursc Debt Minimum Gain" means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section of the Regulations. ?Member Nonrecourse Deductions" has the meaning set forth in Sections 1) and of the Regulations. ?Members? shall refer collectively to all of the Persons listed on Exhibit A as Members and to any other Persons who are admitted to the Company as Members or who become Members under the terms of this Agreement until such Persons have ceased to be Members under the terms of this Agreement. ?Net Cash From Capital Transactions or Re?nancings? shall mean with respect to the period for which Net Cash From Capital Transactions or Re?nancings is being determined the cash proceeds from a Capital Transaction including the proceeds received with respect to a Capital Transaction from a casualty or other insurance policy (other than rental or business interruption insurance) received by the Company and not applied to the repair or restoration of the assets of the Company; and (ii) amounts received by the Company derived from the proceeds of any loans to the Company or the re?nancing of any indebtedness of the Company (a ?Re?nancing?) that the Managing Member with the approval of a Majority in Interest of the Members determines is available for distribution, less the retirement of any related loans that are secured by the assets sold or that are subject to the Re?nancing and the payment of all expenses relating to the Capital Transaction, loan, or Re?nancing, (ii) the payment of any expenditures attributable to the liquidation of the Company, payment of all other obligations of the Company that are in arrears under normal trade practices or that otherwise are then due and payable to the Company?s creditors and for which funds for payment are not available from Net Cash From Operations or available reserves attributable to Cash From Operations and (iv) such additions to reserves as are determined by the Managing Member with the approval of a Majority in Interest of the Members. The funds eXpended from said reserves will not be treated as deductions from the calculation of Net Cash From Capital Transactions or Refinancings and any funds released. from said reserves that are not used for expenditures of the Company as described in through above shall be treated as Net Cash From Capital Transactions or Re?nancings. The Company shall offset any amounts paid pursuant to Section of this de?nition with future Net Cash from Operations and any amounts so offset will be deemed to increase Net Cash From Capital Transactions or Re?nancings. Net Cash from Capital Transactions or Re?nancings shall include all principal and interest payments with reapect to any note or other obligation received by the Company in connection with sales and other dispositions of its prOperty. ?Net Cash From Operations" shall mean with respect to the period for which the Net Cash From Operations is being determined the Cash From Operations, less all operating expenses of the Company as of such time, (ii) payment of all outstanding and unpaid current obligations of the Company as of such time; all expenditures which are treated as capital expenditures (as distinguished from ordinary expenses) under generally accepted accounting principles, (iv) all real estate taxes, personal property taxes and sales taxes, amounts used to offset expenditures made pursuant to Section of the de?nition of Net Cash From Capital Transactions or Re?nancings, and (vi) such additions to reserves as are determined by the Managing Member with the approval of a Majority in Interest of the Members (including, but not limited to, reserves for working capital and other cash requirements, current and reasonably projected expenses, eXpansion or diversification, capital improvements and replacements, and reasonably anticipated contingencies). The ?mds expended from said reserves will not be treated as deductions from the calculation of Net Cash From Operations and any funds released from said reserves that are not used for expenditures of the Company as described in (1) through above shall be treated as Net Cash From Operations. ?Nonrecourse Deductions" has the meaning set forth in Section of the Regulations. ?Nunrecourse Liability? has the meaning set forth in Section of the Regulations. ?Percentage Interest" shall mean the percentage interest of a Member or Economic Interest Owner, from time to time, in allocations of Pro?ts, Losses, and other items of income, gain, loss, deduction, or credit, and certain distributions of cash and property. The initial Percentage Interest of each Member shall be set forth on Exhibit A which shall be amended from time to time to re?ect changes in the Percentage Interests pursuant to this Agreement. ?Person? shall mean a natural person, partnership (whether general or limited), trust, estate, association, corporation, limited liability company, unincorporated organization, custodian, nominee or any other individual or entity in its own or any representative capacity. ?Preferred Return? shall mean an aggregate return of six percent per annum, cumulative but not compounding, on the Unrecovered Invested Capital of each of the Capital Members, determined from and after the date of receipt by the Company of the Invested Capital of such Member. ?Pro?ts" and ?Losses? shall mean for each Fiscal Year or other period, an amount equal to the Company?s taxable income or loss for such year or period determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments: Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Pro?ts or Losses shall be added to such taxable income or loss; Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704~ and not otherwise taken into account in computing Pro?ts or Losses pursuant to this Paragraph, shall be subtracted from such taxable income or loss; (0) In the event the Agreed Value of any Company asset is adjusted as provided in subparagraphs and of the de?nition of Agreed Value set forth in this Exhibit the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Pro?ts and Losses; Gain or loss resulting from dispositions of Company assets shall be computed by reference to the Agreed Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Agreed Value; In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period in accordance with Regulations Section To the extent an adjustment to the adjusted tax basis of any of the Company assets pursuant to Code Section 734(b) or Code Section 743 is required pursuant to Regulations Section to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member?s Interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Pro?ts or Losses; and Notwithstanding any other provision of this Paragraph, any items of income, gain, loss or deduction which are specially allocated pursuant to Exhibit of this Agreement (other than Section 13.10) shall not be taken into account in computing Pro?ts or Losses. The amounts of items of Company income, gain, loss or deduction available to be specially allocated W0 pursuant to Exhibit of this Agreement (other than Section 13.10] shall be determined by applying rules comparable to those set forth in Subparagraphs above. ?Regulations? shall mean the ?nal and temporary Income Tax Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). ?Regulatory Allocations? shall mean the allocations set forth in Sections of Exhibit B. ?Required Records? means: A copy of the Company?s Articles, this Agreement, and all amendments thereto, together with cepies of any executed powers of attorney under which all or any part of the Articles, this Agreement, and all amendments thereto were adopted, that are in effect or were in effect at any time during any of the Company?s preceding four ?scal years; Either, as the Company may elect, a copy of the Company?s federal, state, and local income tax returns, including any amendments and supplements made to those returns, ?led with taxing authorities that pertain to any of the Company?s preceding four ?scal years or for each Fiscal Year or (ii) ?nancial statements of the Company of the type described in subsections and of OS. 55-16?20 that pertain to any of the Company's preceding four ?scal years; A list of the name and last known business, residence, or mailing address of the Company?s current Members and Economic Interest Owners, the date on which each became the owner of an Interest in the Company and, if applicable the date a Person?s status change to an Economic Interest Owner or Member; Information regarding the requesting Member?s Percentage Interest and Capital Account balance; Unless otherwise determined by the Managing Member, information regarding the Percentage Interest of all Members and Economic Interest Owners and their resPective Capital Account balances (including information regarding the amount of cash, and a description and statement of the Agreed Value of any other property or services, contributed by each Member and Economic Interest Owner to the Company, the cash, property and services that each Member has agreed to contribute to the Company in the future, and the extent to which that agreement has been ?rl?lled); and Information from which the status of the business and the ?nancial condition of the Company may be ascertained. ?Transfer? means as a noun, the transfer of ownership by sale, exchange, assignment, conveyance or other similar transaction of any kind, whether voluntary or involuntary, including transfers by Operation of law or legal process (and hereby expressly includes, with respect to a Member or other Person, any voluntary or involuntary appointment of a receiver, trustee, quuidator, custodian or other similar of?cial for such Member or other Person or all or any part of the pmperty of such Member or other Person under any bankruptcy or insolvency law, (ii) gift, donation, transfer by will or intestacy or other similar type of transfer or disposition without consideration, whether inter vivos or mortis causa, and any voluntary or involuntary transfer or other conveyance or diSposition to a Spouse or former spouse (including by reason of a separation agreement or divorce, equitable or community or marital property distribution, judicial decree or other court order relating to the division or partition of property between spouses or former spouses or other Persons)); and as a verb, the act of making any Transfer. ?Undistributed Preferred Return? means an amount equal to the Preferred Return of a Capital Member accrued for all periods to the date the Undistributed Preferred Return is being determined, less all ?y distn'butions previously made to such Member pursuant to Section and Section ?Unrecovered Invested Capital" of a Member means an amount equal to the excess, if any, of such Member?s Invested Capital over all distributions previously made to such Member pursuant to Section 1" vii EXIIT Con Artist: Edgar Melo Costa - Currently Operating in NY Syphoning Money from My Company Concealing Financial Records Deceiving Investors Relying on Fraudulent Claims e2 Summary: Edgar Mela Costa is currently holds the majority of interest in the Real Estate of the Hotel and he controls the bank accounts for the Time Hotel and Grill the Hotel?s Restaurant. He is believed to be syphoning money out of the company. I, Howard Dean, am the only other capital member of the Hotel. He is claiming a robust career of founding companies and turning huge profits - none of his claims have been true and are outlined in more detail below. We have become aware of several other people who have been defrauded by him and suffered financial damage. I am seeking immediate assistance to keep Mr. Costa from embezzling hundreds of thousands of dollars, irreparably harming the Time Hotel, costing dozens of peoples? jobs, and destroying my personal equity in the Hotel. Details and exhibits follow. My name is Howard Dean. I am a minority owner of Real Estate of the Time Hotel, a boutique Hotel in Nyack, NY. I have been involved in the Hotel since its inception in 2012. I have owned the property since 2007. I am one of the original investors of the Hotel, and I remain one of the owners. In the late fall of 2017, was informed unexpectedly, that The Time Nyack would have a new investor, Edgar Melo Costa. A wealthy, Portuguese entrepreneur, private equity investor, and venture capitalist. I was told by my then partner, Kerry Wellington, that Edgar would bring success to the Time and to help it reach its maximum potential. Edgar described himself as a proven leader. I was told he would provide ?nancial strength, business coaching and leadership he?d proven in prior endeavors, he would pay the $600,000 debt of the Hotel, and provide the $2,000,000 needed to ?nish upstairs bar, and revamp the Hotel into a powerful, prosperous business. As a partial owner of the Hotel, who has been a source of substantial capital, arranged for Edgar and to get acquainted over lunch in early December 2017. I wanted to discuss our histories, and that of the Hotel, and be uni?ed on the future goals of the Hotel, and what needed to be done. During this lunch, Edgar spoke of how great he was, that he currently owns his own private jet company (Ecojets), and for over 20 years has owned many other companies, many different markets, all over the world. Portugal, Africa, Dubai, New Yorkjust to name a few. Exhibit A, attached, is a sampling of various self-authored articles on his wealth and success. Edgar boasted he took over and reorganized his father?s failing business, that then he sold for $430,000,000, and he always pays cash for any and everything he buys (He currently has a personal tab at the Hotel Restaurant/Bar of over $40,000, plus whatever else he may have stolen). He gloated excessively of his prestigious, scholarly education, claiming a Degree in Engineering from Universidade NOVA de Lisboa, and a Master?s Degree from NY Columbia University, where he is currently taking law courses as well. So far, all his accomplishments he has boasted about have been proven false. It has been con?rmed that no degree from either school has been earned and he has never attended Columbia. (Exhibit B). was intrigued by his claims, as I actually did earn both an Engineering Degree (Bucknell University) and Law Degree (Temple University). lam an entrepreneur, myself. I am an honest, accomplished, well documented businessman with a successful career history. I am a real estate developer, investor, owner and operator. I am a large operation and own close to a million square feet of real estate in many states. I have over 50 years of hands on experience. My intuition on Edgar Costa seemed to be he was a super con-artist and a liar. This has proven true. I was told he ?rst took an interest by members of the Hotel that Key Real Estate Holdings, LLC and WY Management LLC both transferred their ownership to Edgar Costa for no cash. He then formed his own new company holding this interest. I was cut out. I no longer was informed or invited to the weekly construction meetings or weekly and Hotel Member meetings that discussed operations, budget forecasts and Mil) ?nances. Abruptly, was removed from the Hotel and Restaurant's email distribution list of its daily revenue reports. I then began with numerous requests to review the Hotel and Restaurant?s finance records, I was never replied to.? Why was I excluded? This is in direct violation of the Hotel?s Operating Agreement. This is currently being scrutinized by my lawyer. As I have been trying to regain access to the ?nancials of the Hotel, it appears that Edgar may have illegally spent, embezzled or otherwise taken 100's of thousands of dollars from the Hotel?s bank accounts. An anonymous check copy was sent to me showing he fraudulently and illegally paid a contractor out of one of the Hotel's accounts for work unrelated to the Hotel. This $10,000 check must be for one of Edgar?s personal projects, and completely unrelated to the Hotel! (Exhibit C). This was the beginning of irreparable damage to the operation of the Restaurant, poor employee morale, some not even being paid, leading to a slow demise of the Hotel. I cannot watch this happen to something I literally had a hand in building from the ground up. My hands are tied, there are two equity owners, and I am the minority. I own the smallest share of the Hotel, but my opinions have been heard historically, and now since Edgar has been involved he has cut me out completely. He came into the investment saying that l'm not part of his team and won?t be provided any information. Edgar allegedly had the money for the Ownership Interests of the other two Hotel Members (the other equity owner who held the majority of interest), so I left myself open for a buyout. I quote from his lawyer, Tamir Young, Esq: ?Edgar has oodles and oodles of money.? I have yet to be contacted with any purchase price. Also, Mr. Young has not been paid and apparently is no longer his attorney. With the help of Google, friends, family, work associates, acquaintances, staff, ex-staff, disgruntled ex- associates of Edgar Costa, and two private investigators, the information attached describes nothing but fraud and appears to be criminal. You will ?nd the reports of the Private Investigators procured personally as well as Edgar Costa?s Employment Authorization Card, and valid for work only Social Security Card. Both expired end of May 2018. No update as to their renewal (Exhibit D). It was also obvious with websites removed and missing internet links, that Edgar must have hired someone to remove his negative online presence. Through basic internet searches, Edgar presently has over 22 ?current companies? where he holds high positions. However, none of them match the 13 dissolved Portugal companies which have judgements against him totaling upwards of $2,000,000. Judgement cases are listed on pages 4-15 on the Pl Report for Portugal (From Exhibit mentioned above). When looking into Ecojets, Edgar? most talked about start up, it was found Ecojets has 3 employees, Edgar Costa, Lidia Mcdonald, and Brian Hunter. No information on Mr. Hunter, and Lidia Mcdonald is actually Diane Dillon, Chief Marketing Of?cer for Addison Communication from Boston for 12 years. Diane Dillon?s pro?le can be found on Facebook and Linkedln. While searching Ecojets, a plane image was found with an Ecojets logo and tail number. The Tail number is not registered with the FAA (Exhibit E). It was not hard to gather information. In fact, information has been coming in daily to my of?ce, including people who Edgar has attempted to defraud, people who Edgar claimed his wealth to, from ?his? startup companies with high-ranking positions. Edgar claims af?liation with high pro?le companies who never heard of him. His behavior is corrupt and malicious, from attempting to duplicate someone?s prototype, to conning individuals out of many thousands of dollars, to just plain lying when taking their money ?raising capital? with no intention of ever delivering the stakes, stocks, or shares of a company as promised. Most recently, with the Brent Borland $21 Million Belize Airport Scheme to defraud investors, I am sick with concern because Edgar has involvement with Mr. Borland. Edgar has stated his involvement with the Belize Project to several people. At one time, Edgar had a PR specialist, Heather Splash, working with him. She has sat in on meetings with Edgar and Brent Borland (Exhibit F). Edgar has defrauded so many people in Rockland County, across the US, Portugal and beyond. Everyone I have spoken to and/or contacted me are willing to cooperate. I can elaborate on any of the information attached, as well as provide a plethora of other minor facts, including an incriminating audio conversation with one of Edgar?s distressed victims, Tim Scheibeler, who invested $110,000 for the promising position of Director of Business Development for Ecojets (Exhibit 6). I am astonished I put my trust in the other Capital Member of the Hotel, who transferred their Ownership Interest without any due diligence and without my knowledge. Referring back to the Hotel Agreement being reviewed, my consent for change of ownership is required. I am writing to the US Attorney Of?ce with the sole intent to protect my interest in the Hotel, its Restaurants? reputation, and the employees who quite possibly are in jeopardy of losing their jobs. I worry for the innocent, excited Brides, Grooms, Children and other guests of honor who are celebrating weddings, Bar/Bat Mitzvahs, Sweet 165 at the Hotel, and any other special event clients who have made considerable deposits for their future event. Edgar is a charmer, very cunning, he seems credible, he projects con?dence and gains the trust of his victims by ?ashing ostentatious wealth and boasting successful investing. It appears to me that Edgar has mastered the art and skill of the ?Con?dence Game?. I am available any time of the day, if I can be of further assistance, or if you have any thing you would like to discuss further. I can be reached at my of?ce 914-631-3000, or on my cell 914-419-7166. I look forward to hearing from you. Very Truly Yours, QM oward Dean List of Exhibits: A Sampling of Edgar Costa?s self-authored blogs. Veri?cation Edgar Costa has not earned a degree(s) or attends classes from Universidade NOVA de Lisboa and New York?s Columbia University. Check payable from the Time Hotel to Hall Heating Cooling Services Inc., who has no affiliations with the Hotel. USA and Portugal Private Investigative Reports. Copies of SS and Employment Authorization Card. Picture of Lidia McDonald who is listed as Chief Marketing Of?cer for Ecojets.com. Lidia is actually Diane Dillion from Boston. Copies of her Facebook and Linkedln social media. Internet photo of plane with Ecojets logo. The tail number is not registered with the FAA. Brent Borland article regarding his arrest in Belize Airport scam. Heather Splash Bio Authorized audio conversation with John Krupa and Tim Scheibeler. Edgar promised Tim a position with Ecojets.com as Director of Business Development. Tim has not heard from Edgar once Edgar received Tim?s investment. Ma 5% 7L 4 . . ?whim: Features ?111? EDGAR HELD COSTA hush-1h tumumna-tma?uwmkul kamem mm 41?ch -msmu -Hanage?lsk vFuunmCaplIaIBhdency me,mm?mebmd. .h?rr" . . ml)! - muonmmeLLim?lJSIhEssFO?UM. . un? backandcmer?ymuammnriwmd mm Wemme. Hansencle?tpodm?mhuhohorhpan I . Mammalian. The World Startup Companies Author: Edgar Melo Costa Ultimas Edgar Melo Costa, is an experienced entrepreneur, investor, whose portfolio of private and technology companies has been very successful in a wide array of markets and Sectors. Edgar Costa is Partner in Capital Ventures. Prior to focusing on being an active and involved board member and serving as an advisory partner to a variety of investment companies and equity, Edgar Costa was a successful Chief Executive Of?cer of two different technology companies (Altran Technologies, Segula Technologies)and was also an investment business regarding mergers 8: acquisitions of several companies during almost 20 years of experience and work with companies in Germany, France, Uk, Spain and Portugal. Edgar Costa as also experience and some investments in Africa Angola since 2007 and recent has made new investments in Dubai. Edgar Costa has also been a Lecturer Center for Entrepreneurship at the University UNL (Lisbon), Edgar Costa and has also served as Entrepreneurship at ANIE National Association of Young Entrepreneurs. Edgar Melo Costa received a Engineer degree from Universidade Nova de Lisboa in 1999 and start in 2014 a degree from Columbia University. Edgar Melo Costa was invited in 2014 to be a advisor in US. Africa Leaders Summit commission. July 5, 2015 COHITEC July 5, 2015Ju1y 5, 2015 a The World StartupCompanies Whois Edgar Melo Costa. Welcome to my Edgar Melo Costa?s Bio: Edgar Melo Costa the Managing Partner of Venture Capital, a Gen research and consulting ?rm. He is studing law in Colombia University. is a Engenier in Universidade Nova de Lisbon He is long time entrepreneur, as taken his spirit and teamed with executives in rapidly growing startup companies. As Co Founder of several company?s as Segula Technologies Altran Edgar bring's with him experience in several region?s of world has Europe, Angola Brasil, and Dubai Edgar?s goal is to ?nd the magic in each of his clients, help them position it, get the better strategy and make then leverage that attention into more customers and pro?ts. Edgar is'a columnist at several Blog?s. He?s has come to US market after selling his company in the begining of 2014. Recently, he has rede?ned his personaly business investment since he was invited to belong?s U.S. Africa Leaders Summit. With Edgar's knowledge from all the leading experts during several year's he has achive the goal of thto establish a single de?nition for go to market. Edgar?s new project that he has achive Connect with Edgar at ?Still I Rise? ?You may shoot me with your words, You may cut me with your eyes, You may kill me with your hatefulness, But still, like air, I?ll rise.? Edgar Melo Costa Edgar Melo Costa?s Experience: 0 Manager at Pioneer Electronics September 1994 - April 1999 0 Manager at Altran 1/8 - May 2000 - April 2004 Porto CEO at Segula Techonologies January 2006 September 2007 Lisbon 0 Partner at VHM ANGOLA April 2012 Present Angola The VHM Angola is an Angolan company operating in Angola since 2011 . Currently has of?ces in Ingombotas central Luanda and Talatona providing services in all areas of consulting project supervision and management contracts as well as in the management of maintenance of buildings and condominiums. Vice President at GESPURA SGPS January 2010 - June 2012 Lisbon Management of holdings in other companies as an indirect form of Economic Activities Exercise Projects: 0 0 valley/destination) CEO at Kendal January 2012 March 2014 Lisbon Angola, Dubai, USA, Portugal Associate Partner CEO at Capital Fund May 2014 Present I New York Edgar Melo Costa is the 38-year-old CEO of Venture Capital, a wearable produced growing company?s by Strategy Methodology's and innovation. Partner and CFO at Matrix Construcoes October 2014 Present I Angola Huanbo Cabinda Matrix Construcoes it's a Angola law company, that exist since 2003, is related to goverment construction project '5 and in 2014, a join venture between US and the shareholder's. 2?3 ?my. "mwma .u uly vvunLU! - me wono alanup Companies Edgar Melo Costa's Education: 0 Columbia University in the City of New York 2014 2016 Mastex?s degree 0 Universidade nova de Lisboa 0 1995 2000 Engem'er degree Edgar Melo Costa?s Interests Activities: Health 8: Beauty, Marketing, Entreperneur, Luxury Brands, Market Entry Edgar Mela :3 Costa 3l8 -Cdumbm University Never Attended mm 1- . Fwd: Verification Services Trans. #162670977: Unable to Confirm Your Verification Services Request Thu 4/19/2018 2:11 PM POP Sent from my iPhone Begin forwarded message: ril 19, 2018 at1010639 AM EDT Sublet: Fwd: tans. Ii?ltiZG?lOQ'r'T?: Unable to Con?rm Your Veri?cation Services Request Sent from my iPhone Begin forwarded message: From: dmettepiy?studeetdeatieghoumg Date: April 19Services Trans ?62670977: Unable to Con?rm Your Veri?cation Services Request This e?mail was sent from a noti?cation-only address that cannot accept incoming e-mail. Please DO NOT reply to this message. IMPORTANT, PLEASE READ the following comment(s) provided by the school: We suggest you direct this to our af?liate Teachers College through the Clearinghouse site. On the veri?cation request form, please enter 'Teachers College, Columbia University' when selecting a school. We are unable to verify a degree for this individual based on the information you provided. Possible reasons are: 1. The information you entered (name, date of birth, and/or Social Security number) does not match the name, date of birth, and/or Social Security number provided by the educational organization. 2. The individual has chosen to keep his or her student records private. 3. The school has blocked the release of the individual's records. In this instance the individual must contact . the school directly to release his or her records. 4. The individual never received a degree from the selected school. Ensure that you have selected the correct school. Many schools are similarly named. Use the location to assist you in your selection process. 1I2 513/2018 i . 5. The individual never enrolled. ensure that you have selected the correct school. ny schools are similarly named. Use the location to assist you in your selection process. If you are able to obtain a copy of the degree from the individual, fax it to the Clearinghouse at 703-318-4058, along with the Transaction ID for this request. We will work with the school to determine whether or not the recordis) is genuine. INFORMATION YOU PROVIDED Subject Name First EDGAR Middle MELO Last Name COSTA School COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK (002707-00) Attempt To Verify a degree. Reference ID EMC76 Disclaimer: All information veri?ed was obtained directly and exclusively from the individuals educational institution. The Clearinghouse disclaims any responsibility or liability for errors or omissions, including direct, indirect, incidental. special or consequential damages based in contract. tort or any other cause of action, resulting from the use of information supplied by the educational institution and provided by the Clearinghouse. The Clearinghouse also does not verify the accuracy or correctness of any information provided by the requestor. if you have any questions, please contact Customer Service at 703?742-4200, or email us at steam Questions? Go to and select Veri?cation Services Help. National Student Clearinghouse A Non?Pro?t Association Founded by the Higher Education Community 21'2 Universidade Nova de Lisboa Never received Engineering Degree A Fw: Re: Confirmation of Degree Wed 5/2/2018 5:09 PM ?Powwow-Message? F- nto Subject: Re: Confirmation of Degree see answers below Com os melhores cumprimentos Kind Regards, Isobel Sequeim Pinto theta d: Acad?mical?eod of the Academic Division CempmdeCapmca, mo-suapana - 8561 201e-05-021s:01 Isabel, was afraid of that. May I ask he earned any degree from your university? Not at all. I 3' In reference to the three approved courses. were they of engineering study? Applicant oiaims :lndustrial Production. He has been approved In three courses of the 1st year of industrial Production Engineering In 1997. 1 Thank you so much Isabel for your expedited response. . Sincereli, On Wednesday, May 2, 2018. 12:31 :22 PM EDT, isabei Sequeira Pinto wrote: .- A 51812010 . I hereby confirm that the student EDGAR COSTA has attended this School durin.? re (5) years, but he has been approved only in 3 courses. So, he has no Engineering degree. -un?na? Corn os melhores cumpn'rnentos Kind Regards, Babel Sequeir?a Pinto Chefe da Divisio Acad?mlcal Head of the Academic Division ,5 Campm de Caparlca, 2529-510 Caparica - 90mm Tel.: 21 294 8561 lPhone: +351 zr 294 as? i 2013-05-02 17:20 Dear Of?ce of Registra I dent?s enrollment, as well as con?rm the genuine l'm writing today for veri?cation of a former stu ur University in support of an application for quali?cation of an Engineering Degree from yo 1 i i mployment. i i Name: Edgar Male 6 Costa June 19. 1976 I Place of Birth: Campo Grande, Lisbon us Social Security: 1 University: Universldade nova de Usboa - Faculdade de Ciencias Tecnologia I Attended: 1995-2000 I thank you for your time in advance for the return of this matter. Sincereli,