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HomeMy WebLinkAboutPROOF OF OWNERSHIP - LS PropDrop, LLC - Op Agr - 11.2.20 - Les Schwab Tire Center - 407 S 5th W - Lot CombinationEXECUTION VERSION 4848-7139-9888 v4 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF LS PROPDROP, LLC This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of November 2, 2020, of LS PropDrop, LLC, a Delaware limited liability company (the “Company”), is entered into by the person or entity named as Member in Exhibit A hereto, as the sole member of the Company (the “Member”). WHEREAS, the Company was formed by the filing of a certificate of formation with the office of the Secretary of State of the State of Delaware on November 25, 2019; WHEREAS, the Company and SSC-A, Inc. (the “Initial Member”) entered into a limited liability company agreement on November 25, 2019 (the “Initial Agreement”) pursuant to which the Initial Member became the sole member of the Company; WHEREAS, the Initial Member transferred its interest in the Company to Les Schwab Group Holdings LLC (f/k/a LS PropCo, LLC), a Delaware limited liability company (the “PropCo Member”), pursuant to that certain Assignment of Limited Liability Company Interest, dated December 31, 2019; WHEREAS, in connection with the closing of the transactions contemplated by that certain Equity Purchase Agreement, dated as of September 25, 2020, the PropCo Member contributed all of the outstanding equity interests in the Company to the Member pursuant to that certain Contribution Agreement, dated as of the date hereof the “Contribution”); and WHEREAS, the undersigned wishes to amend and restate the Initial Agreement in its entirety as hereinafter set forth to reflect the Contribution, the admission of the Member as the sole member of the Company, to make certain modifications, as hereinafter set forth, and to continue the business of the Company in accordance with the provisions of this Agreement. NOW, THEREFORE, the Member agrees as follows: 1. Name. The name of the Company is “LS PropDrop, LLC”. The business of the Company shall be conducted under such name or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable. 2.Purpose and Powers. The purpose of the Company shall be to engage in any lawful business or activity for which limited liability companies may be formed under the Delaware Limited Liability Company Act (6 Del. C. §§ 18-101, et seq.), as amended from time to time (the “Delaware Act”). The Company shall possess and may exercise all of the powers and privileges granted by the Delaware Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the purpose of the Company. 2 3.Registered Office and Registered Agent. The registered office of the Company in the State of Delaware shall be the office of the registered agent or such other office as the Member may designate from time to time in the manner provided by law. The registered office of the Company in the State of Delaware shall be located at 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808 and the registered agent of the Company in the State of Delaware shall be Corporation Service Company or such other Person or Persons as the Member may designate from time to time in the manner provided by law. 4. Member. Simultaneously with its execution of this Agreement, the Member is hereby admitted as the sole member of the Company and agrees to be bound by the terms of this Agreement. 5. Capital Contribution. The Member shall have the right, but not the obligation, to make capital contributions to the Company as the Member in its sole discretion may determine. 6. Allocations and Distributions. The net profits and net losses of the Company, and other items of income, gain, loss, deduction and credit, will be allocated to the Member for U.S. federal (and, to the extent applicable, state and local) income tax purposes, and the Company, as a separate entity, is to be classified as a disregarded entity for U.S. federal (and, to the extent applicable, state and local) income tax purposes. Subject to Sections 18-607 and 18-804 of the Delaware Act, the Company shall make such distributions to the Member as the Member determines. 7. Management by Member. The management and control of the Company shall be vested entirely in the Member. The Member shall have all the rights and powers that are conferred by law or are otherwise necessary, advisable or convenient to the discharge of the Member’s duties and to the management of the business and affairs of the Company. No person or entity dealing with the Company shall have any obligation to inquire into the power or authority of the Member acting for such purposes on behalf of the Company. 8. Officers. 8.1. The Member may, but is not required to, designate one or more persons to fill one or more officer positions of the Company. Such officers may include Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Vice President, Treasurer, Assistant Treasurer, Secretary, Assistant Secretary and such other offices determined by the Member from time to time. No officer need be a resident of the State of Delaware and any number of offices may be held by the same Person. Each officer will hold office until their successor will be duly designated and will qualify to hold such office, or until their death or until they will resign or will have been removed in the manner hereinafter provided. Any number of offices may be held by the same person. Unless the Member specifies otherwise, the assignment of such title will constitute the delegation to such officer of the authority and duties that are normally associated with that office. The officers of the Company as of the date hereof are set forth in Exhibit B hereto. 3 8.2. Any officer may be removed, with or without cause, by the Member. Any officer may resign at any time by giving written notice to the Company. Any resignation by an officer shall take effect at the date of the receipt of that notice or at any later time specified in that notice, and unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company or the officer under any contract to which the officer is a party. 9. Transfer of Interest; Admission of Additional Members. The Member may assign its interest in whole or in part at any time. Upon assignment of all of the Member’s interest to a transferee, the transferee shall automatically be deemed admitted to the Company as a substituted member of the Company, the Member shall simultaneously be deemed to have resigned from the Company as a member of the Company, and the Company shall continue without dissolution (and all applicable references herein to the “Member” shall be read as references to the transferee as the substituted member of the Company); provided, in any event, that the transferee must agree in a document or instrument to be bound by the terms of this Agreement. One or more additional members of the Company may be admitted to the Company with the consent of the Member. Upon the admission to the Company of any additional member(s), the members of the Company shall cause this Agreement to be amended and restated to reflect the admission of such additional member(s) and the initial capital contribution, if any, of such additional member(s) and the intention of the members to cause the Company to be classified as a partnership or corporation for U.S. federal (and, to the extent applicable, state and local) income tax purposes, and to include such other provisions as the members may agree to reflect the change of status of the Company from a single member limited liability company to a limited liability company with two or more members. 10. Resignation of Members; Events of Bankruptcy. Except as provided in the mandatory provisions of the Delaware Act, no right is given to any member of the Company to resign from the Company. The Member shall not cease to be a member of the Company upon the happening of any of the events specified in Section 18-304 of the Delaware Act. 11. Dissolution and Term of the Company. The Company shall dissolve upon any act or event causing the dissolution of the Company under the Delaware Act, unless, if permitted by the Delaware Act, the Company is continued in accordance with the Delaware Act. Subject to an earlier dissolution as described in the preceding sentence, the Company shall have a perpetual existence. 12. Limitation of Liability and Indemnification of Member. 12.1. Except as otherwise required by the Delaware Act, the Member, in such capacity, shall not be liable for any debts, liabilities, contracts or any other obligations of the Company, except for and only to the extent of such Member’s capital contribution, and then only to the extent and under the circumstances set forth in the Delaware Act. The Member shall have no responsibility to return distributions made by the Company, except as required by the Delaware Act or other applicable law. 4 12.2. The Member, the Manager, and officers shall not be liable to the Company or to any other member of the Company or other person or entity who may become a party to or bound by this Agreement for any breach of this Agreement or of any duties (including fiduciary duties) arising under or in connection with this Agreement or the Company other than for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. 12.3. The Company shall indemnify and hold harmless the Member, officers and any direct or indirect officer, director, Affiliate, stockholder, member, manager, employee or partner of the Member and its Affiliates (each such Person, an “Indemnitee”) from and against any and all losses, claims, damages, liabilities, costs and expenses, including in connection with seeking indemnification pursuant to this Section 12.3, whether joint or several (the “Liabilities”), related to, arising out of or in connection with the services contemplated by this Agreement, whether or not pending or threatened, civil or criminal, administrative, investigative or other, whether or not an Indemnitee is a party thereto, whether or not resulting in any liability to such Indemnitee and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company shall reimburse any Indemnitee for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which such Indemnitee would be entitled to indemnification under this Section 12.3, or any action or proceeding arising therefrom, whether or not such Indemnitee is a party thereto, regardless of whether such Indemnitee continues to be a Member, officer, any direct or indirect officer, director, Affiliate, stockholder, member, manager, employee or partner of the Member or its Affiliates at the time any such Liability is paid or incurred. The Company shall not be liable under this Section 12.3 with respect to any particular Liability of an Indemnitee to the extent that such Liability is for acts or omissions for which the Indemnitee is not absolved from liability under Section 12.4. The Company shall pay the attorneys’ fees and other expenses of an Indemnitee as they are incurred upon receipt of an agreement by or behalf of an Indemnitee to pay such amounts unless it is finally judicially determined that the Liabilities in question resulted primarily from the willful misconduct or bad faith of such Indemnitee. 12.4. No Indemnitee shall be liable to the Company or any other Indemnitee for any loss, damage or claim incurred by reason of any action taken or omitted to be taken by such Indemnitee in good faith and with the belief that such action or omission is in, or not opposed to, the best interest of the Company, so long as such action does not constitute fraud, gross negligence, willful misconduct or a material breach of this Agreement by such Indemnitee or is not made in knowing violation of the provisions of this Agreement. 12.5. Certain Indemnitees that are managers, officers, members, employees, equityholders, managers, or advisors of Member or Member’s Affiliates (each such Person, a “Fund Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by or on behalf of Member and/or its Affiliates (collectively, the “Fund Indemnitors”). Notwithstanding anything to the contrary in this Agreement or otherwise: (i) the Company is the indemnitor of first resort (i.e., the Company’s obligations to each Fund Indemnitee are primary and any obligation of the Fund Indemnitors to advance costs, expenses or damages or to provide indemnification for such costs, expenses or damages incurred by each Fund Indemnitee 5 are secondary), (ii) the Company shall be liable for the full amount of all such costs, expenses or damages paid in settlement to the extent legally permitted and as required by this Agreement, without regard to any rights each Fund Indemnitee may have against the Fund Indemnitors, and (iii) the Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Notwithstanding anything to the contrary in this Agreement or otherwise, no advancement or payment by the Fund Indemnitors on behalf of a Fund Indemnitee with respect to any claim for which such Fund Indemnitee has sought indemnification or advancement of costs, expenses or damages from the Company shall affect the foregoing and the Fund Indemnitors will have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Fund Indemnitee against the Company. The Fund Indemnitors are express third party beneficiaries of the terms of this Section 12.5. 12.6. The right of an Indemnitee to indemnification hereunder shall not be exclusive of any other right or remedy that the Member or officer may have pursuant to applicable law or this Agreement. 12.7. An Indemnitee shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid. 12.8. The Company may purchase and maintain insurance on behalf of an Indemnitee or any other person who, while a Member, officer or any direct or indirect officer, director, affiliate, stockholder, member, manager, employee or partner of the Member or its affiliates, is or was serving at the request of the Company as a director, manager, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The Company may purchase and maintain the insurance even if the Company has no power to indemnify the individual against the same liability under the applicable law. 13. Amendment.This Agreement may be amended by the Member; provided, however, that any amendment to this Agreement must be in writing and signed by the Member. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law principles. 15. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or to any circumstance, is judicially determined not to be enforceable in accordance with its terms, 6 the court judicially making such determination may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its modified form, such provision will then be enforceable and will be enforced. [Remainder of Page Intentionally Left Blank] Exhibit A Member Les Schwab Property Holdings LLC 20900 Cooley Road Bend, OR 97701 Attn: Corey J. Parks Email: corey.j.parks@lesschwab.com Exhibit B Officer Title John W. Cuniff President Corey J. Parks Vice President and Secretary Michael D. Broberg Treasurer