HomeMy WebLinkAboutLLC OWNERSHIP - 20-00899 - Yellowstone Heights Condos PlatBLUE OX DEVELOPMENT LLC
OPERATING AGREEMENT
AGREEMENT dated as of the 1 sc day of January, 2005, by and among (i) the persons
identified as Members in Schedule I annexed hereto, made a part hereof, and hereby incorporated
herein by reference thereto, and (ii) the persons identified as Managers in Schedule II annexed
hereto, made a part hereof, and hereby incorporated herein by reference thereto. Except as
otherwise provided, the capitalized terms used in this Agreement shall have the meanings set
forth in Article X hereof
WHEREAS, Blue Ox Development, LLC (the "LLC") has been formed as a limited
liability company under the laws of the State of Utah by the filing of the Articles in the office of
the Division of Corporations of the Utah Department of Commerce on or about September 9a',
2004; and
WHEREAS, the Members and the Managers wish to set out fully their respective rights,
obligations and duties with respect to the LLC and its assets;
NOW, THEREFORE, in consideration of the mutual covenants herein expressed, and for
other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
Oruanizational Powers
1.01 Organization. The Managers shall file such certificates and documents as
appropriate to comply with the applicable requirements for the operation of a limited liability
company in accordance with the laws of any jurisdictions in which the LLC shall conduct
business and shall continue to do so as long as the LLC conducts business therein. The LLC may
establish places of business within and without the State of Utah, as and when required by its
business and in furtherance of its purposes set forth in Section 1.02 hereof, and shall appoint
agents for service of process in all jurisdictions in which the LLC shall conduct business. Except
as otherwise provided herein, the LLC may from time to time change its name, its resident agent
for service of process, the Managers, the location of its registered office, the general character of
its business and/or any other matter described in the Articles. The Managers shall have no
obligation to deliver or mail a copy of the Articles or any amendment thereto to the Members.
Without limiting the foregoing:
(a) The initial designated place of business of the Company, where the Company
records, as specified in the Act, shall be kept shall be 553 E. Center Street, Springville, UT
84663;and
(b) The initial registered agent as designated in the Company's Articles of
Organization for service of process shall be Michael A. Jensen, and the location for such service
of process shall be 136 S. Main Ste. 430, P.O. Box 571708, Salt Lake City, Utah 84157-1708,
1.02 Purposes of the LLC. The general purposes of the LLC shall be (i) to acquire,
hold for investment, manage, lease, develop, improve, mortgage, sell or otherwise deal with real
and personal property, as the LLC may now or hereafter acquire, (ii) to make investments of any
kind or nature, and (iii) to engage in any other lawful business activity permitted under the Act.
1.03 Powers. Subject to all other provisions of this Agreement, in furtherance of the
conduct of the business of the LLC, the LLC is hereby authorized:
(a) To acquire by purchase, lease or otherwise any real or personal property which
may be necessary, convenient or incidental to the accomplishment of the purposes of the LLC;
(b) To invest and reinvest in securities or any property, real or personal, or any
businesses, partnerships or joint ventures;
(c) To construct, operate, maintain, finance, improve, own, sell, convey, assign or
lease any real estate and/or any personal property;
(d) To borrow money and issue evidences of indebtedness in furtherance of any
or all of the purposes of the LLC, and to secure the same by mortgage, pledge or other loan on
any of the assets of the LLC;
(e) To guarantee the repayment of the loans of other parties, and to secure the
same by mortgage, pledge or other loan on any of the assets of the LLC;
(f) To the extent that funds of the LLC are available, to pay all expenses, debts
and obligations of the LLC;
(g) To prepay, in whole or in part, refinance or modify any mortgage affecting
any assets of the LLC;
(h) To employ Persons, including Affiliated Persons and/or members of the
Immediate Family, to provide advisory, administrative, professional and other services to the
LLC, and to pay reasonable compensation for such services;
(i) To enter into any kind of activity and to perform and carry out contracts of any
kind necessary to, or in connection with, or incidental to the accomplishment of, the purposes of
the LLC, so long as said activities and contracts may be lawfully carried on or performed by a
limited liability company under the laws of the State of Utah;
0) To sell, convey and assign any or all of the assets of the LLC in the ordinary
course of business and to take all other appropriate actions in connection with the dissolution or
liquidation of the LLC;
(k) To enter into, execute, modify, amend, supplement, acknowledge, deliver,
perform and carry out contracts of any kind, including, but not limited to, any of the following:
(i) any and all agreements, certificates, instruments or documents
required by any mortgagee from time to time in connection with the
acquisition, ownership, development and operation of any of the assets of
the LLC;
(ii) any deed, lease, mortgage, mortgage note bill of sale, contract or
any other instrument purporting to convey or encumber any of the assets of
the LLC;
(iii) any and all instruments or documents requisite to carrying out the
intention and purpose of this Agreement, including, without limitation, the
filing of all business certificates, all amendments thereto and documents
deemed advisable by the Managers in connection with obtaining or
maintaining any financing arrangements for any of the assets of the LLC;
(iv) any and all agreements, contracts, documents, notes, certificates
and instruments whatsoever involving the construction, development,
management, maintenance and operation of any of the assets of the LLC;
and
(v) any and all operating agreements of limited liability companies,
whether as a member or manager, joint venture, limited and general
partnership agreements, guarantees, and contracts establishing business
arrangements or organizations, necessary to, in connection with, or
incidental to the accomplishment of the purposes of the LLC; and
(1) To take any other action not prohibited under the Act or other applicable law.
1.04 Membership. Reference is hereby made to the fact that there shall initially be six
classes of Members of the LLC: (a) Class A Members, (b) Class B Members, (c) Class C
Members, (d) Class D Members, (e) Class E Members, and (f) Class F Members. The initial
Class A Member, Class B Member, Class C Member, Class D Member, Class E Member and
Class F Member are identified on Schedule I hereto.
ARTICLE II
Capital Contri utions and Liability of Members
2.01 Ca ital Accounts. A separate Capital Account shall be maintained for each
Member, including any Member who shall hereafter acquire an interest in the LLC. In addition,
a separate Sub -Capital Account shall be maintained for each Member, including any Member
who shall hereafter acquire an interest in the LLC, with respect to (ii) all Nonspecific LLC
Investments, and (ii) any Individual LLC Investment which may be designated by the Managers
after execution of this Agreement.
2.02 Capital Contributions.
(a) Initial Capital Contributions. The initial Class A Member, Class B Member,
Class C Member, Class D Member and Class E Member each shall contribute to the capital of
the LLC the sum of sixteen thousand two hundred dollars ($16,200), such amount to be paid as
provided in this subparagraph (a), The Initial Capital Contribution shall be allocated in full to
the Nonspecific LLC Investments, and the initial Units issued by the LLC shall have a
Nonspecific Sub -Class.
(i) The LLC hereby acknowledges the receipt of a capital contribution in
the amount of sixteen thousand two hundred dollars ($16,200) from each of the initial Class A
Member, Class B Member, Class C Member and Class D Member. The initial Class E Member
agrees to contribute the sum of sixteen thousand two hundred dollars ($16,200) to the LLC
within seven (7) days of execution of this Agreement.
(ii) The initial Class F Member shall have no obligation to make a capital
contribution to the LLC pursuant to the provisions of this Section 2.02(a).
(b) Additional Capital Contributions. The Managers, acting by Approval, are
authorized to request and accept additional capital contributions on behalf of the LLC. Each of
the Class A Member, Class B Member, Class C Member, Class D Member and Class E Member
intends to contribute, in the aggregate, three hundred fifty thousand dollars ($350,000) to the
capital of the LLC, and each such Member may ultimately contribute funds in excess of such
amount to the LLC. The following provisions shall apply to each request for additional capital
contributions pursuant to the provisions of this Section 2.02(b):
(i) All Members must be given the opportunity to contribute additional
capital to the LLC on an equal basis.
(ii) If the Class A Member(s), Class B Member(s), Class C Member(s),
Class D Member(s) and Class E Member(s) each contribute additional funds to the LLC on an
equal basis in response to a request hereunder, then (A) their capital contributions shall be
allocated, in full, to Nonspecific LLC Investments, (B) no additional Units shall be issued in the
LLC in exchange for such contributions, and (C) the Capital Account and the Sub -Capital
Account of each Member contributing additional funds to the LLC shall change as of a date
convenient to the Managers.
(iii) If the Class A Member(s), Class B Member(s), Class C Member(s),
Class D Member(s) and Class E Member(s) do not contribute additional funds to the LLC on an
equal basis in response to a request hereunder, then:
(A) The Managers shall specify an Individual LLC Investment with
respect to which the capital contribution is being requested. All capital contributions shall be
allocated in full to such Individual LLC Investment.
(B) Each Class A Member shall acquire additional Class A Units in
exchange for such additional capital contributions hereunder. Each Class B Member shall
acquire additional Class B Units in exchange for such additional capital contributions hereunder.
Each Class C Member shall acquire additional Class C Units in exchange for such additional
capital contributions hereunder. Each Class D Member shall acquire additional Class D Units in
" exchange for such additional capital contributions hereunder. Each Class E Member shall
acquire additional Class E Units in exchange for such additional capital contributions hereunder.
Each Class F Member shall acquire additional Class F Units in exchange for such additional
capital contributions hereunder. All additional Units issued pursuant to this subparagraph shall:
(I) have a Sub -Class of the Individual LLC Investment with respect to which the capital
contribution is being requested, and (H) be issued to the Members in proportion to each such
Member's capital contribution to such Individual LLC Investment.
(C) The Capital Account and the Sub -Capital Account of each
Member contributing additional funds to the LLC shall change as of a date convenient to the
Managers.
(D) Notwithstanding any other provision herein, it is expressly
provided that in no event may any issuance of additional Units reduce the aggregate number of
Units held by the Class F Members to a proportion which is less than eight percent (8%) of the
number of all Units then authorized and outstanding. If any issuance would reduce the
proportion of Units held by the Class F Members to less than eight percent (8%) of such total,
then additional Class F Units shall be issued on a pro rata basis among the Class F Members so
that the aggregate number of Units held by the Class F Member shall equal eight percent (8%) of
the number of all Units then authorized and outstanding.
(c) Except as set forth in Article III, no Member or Manager shall be entitled,
obligated or required to make any loan to the LLC or any Capital Contribution to the LLC in
addition to any Capital Contributions made pursuant to Sections 2.02(a). No loan made to the
LLC by any Member or Manager shall constitute a Capital Contribution to the LLC for any
purpose.
2.03 No Withdrawal of or Interest on Capital. No Member shall have the right to resign
or withdraw from the LLC and to receive any distribution from the LLC as a result of such
resignation or withdrawal, and no Member shall have the right to receive the return of all or any
part of his or her Capital Contribution or Capital Account, or any other distribution, except with
`the Approval of the Managers or as specifically provided in this Agreement. No Member shall
have any right to demand and receive property of the LLC in exchange for all or any portion of
his or her Capital Contribution or Capital Account except as provided in Section 4.02 upon
dissolution and liquidation of the LLC. Except as specifically provided herein, no interest or
preferred return shall accrue or be paid on any Capital Contribution or Capital Account.
2.04 Managers as Members. No Manager is required to hold any membership interest in
the LLC in order to serve as a Manager. It is specifically provided that any Manager, including a
Manager who does not hold a membership interest in the LLC, has the authority to bind the LLC
in the manner set forth in Section 5.02.
2.05 Liability of Members. No Member, in his, her or its capacity as a Member, shall
have any liability to restore any negative balance in his, her or its Capital Account or to con-
tribute to, or in respect of, the liabilities or the obligations of the LLC, or to restore any amounts
distributed from the LLC, except as may be required under the Act or under other applicable law.
Except to the extent otherwise provided by law, in no event shall any Member, in his, her or its
capacity as a Member, be personally liable for any liabilities or obligations of the LLC.
ARTICLE III
Additional Capital
3.01 Fundiniz Capital Requirements.
(a) In the event that the LLC requires additional funds to carry out its purposes, to
conduct its business, or to meet its obligations, the LLC may borrow funds from such Iender(s),
including Managers and Members, and on such terms and conditions as are Approved by the
Managers.
(b) No Member or Manager shall have any obligation to give notice of an existing
or potential default of any obligation of the LLC to any of the Members or Managers, nor shall
any Member or Manager be obligated to make any Capital Contributions or loans to the LLC, or
otherwise supply or make available any funds to the LLC, even if the failure to do so would
result in a default of any of the LLC's obligations or the loss or termination of all or any part of
the LLC's assets or business.
3.02 Third Party Liabilities. The provisions of this Article III are not intended to be for
the benefit of any creditor or other Person (other than a Member in his, her or its capacity as a
Member) to whom any debts, liabilities or obligations are owed by (or who otherwise has any
claim against) the LLC or any of the Members. Moreover, notwithstanding anything contained in
this Agreement, including specifically but without limitation this Article III, no such creditor or
other Person shall obtain any rights under this Agreement or shall, by reason of this Agreement,
make any claim in respect of any debt, liability or obligation (or otherwise) against the LLC or
any Member.
ARTICLE IV
Distributions, Profits and Losses
4.01 Distribution of LLC Funds. Except as provided in Section 4.02 and Section 4.09, if
the Managers, acting by Approval, decide, in their sole discretion, to distribute LLC funds, and if
such funds are determined by Approval of the Managers to be available for distribution, then
such funds shall be distributed in the following priority:
(a) With respect to any funds allocated to Nonspecific LLC Investments:
(i) First, among the Members based upon the proportion of each
Member's Member Contributions to Nonspecific LLC Investments to the aggregate Member
Contributions of all Members to Nonspecific LLC Investments, until the Unrecouped Member
Contributions of all Members with respect to Nonspecific LLC Investmepts equals zero; and
(ii) Second, among the Members on a pro rata basis, based on the
proportion of Units with a Nonspecific Sub -Class then held by each such Member to the total
number of Units with a Nonspecific Sub -Class then issued and outstanding.
(b) With respect to any funds allocated to an Individual LLC Investment:
(i) First. among the Members based upon the proportion of each
Member's Member Contributions to such Individual LLC Investment to the aggregate Member
Contributions of all Members to such Individual LLC Investment, until the Unrecouped Member
Contributions of all Members with respect to an Individual LLC Investment equals zero; and
(ii) Second, among the Members on a pro rata basis, based on the
proportion of Units with a Sub -Class of the Individual LLC Investment then held by each such
Member to the total number of Units with a Sub -Class of the Individual LLC Investment then
issued and outstanding.
4.02 Distribution Upon Dissolution. Proceeds from a Terminating Capital Transaction
and/or other amounts or assets available upon dissolution, and after payment of, or adequate
provision for, the debts and obligations of the LLC, shall be distributed and applied in the
following priority:
(a) Eirst to fund reserves for liabilities not then due and owing and for
contingent liabilities to the extent deemed reasonable by Approval of the Managers, provided
that, upon the expiration of such period of time as the Managers, acting by Approval, shall deem
advisable, the balance of such reserves remaining after payment of such contingencies shall be
distributed in the manner hereinafter set forth in this Section; and
(b) Second, to the Members, an amount sufficient to reduce the Members'
Capital Accounts to zero, in proportion to the positive balances in such Capital Accounts (after
reflecting in such Capital Accounts all adjustments thereto necessitated by (A) all other LLC
transactions (distributions and allocations of Profits and Losses and items of income, gain,
deduction and loss) and (B) such Terminating Capital Transaction).
4.03 Distribution of Assets in Kind.
No Member shall have the right to require any distribution of any assets of the LLC in
kind. If any assets of the LLC are distributed in kind, such assets shall be distributed on the basis
of their respective fair market values as determined by the Approval of the Managers. Any
Member entitled to any interest in such assets shall, unless otherwise determined by the Approval
of the Managers, receive separate assets of the LLC and not an interest as tenant-in-common,
with other Members so entitled, in each asset being distributed.
" 4.04 Allocation of Profits and Losses.
(a) Except as otherwise provided in Sections 4.05 and 4.06, Profits and tax
credits, if any, of the LLC for each period shall be allocated among the Members as follows:
(i) First, to each Member in an amount equal to the aggregate distributions
received by such Member during such period pursuant to Section 4.01(a);
(ii) Next, all remaining Profits shall be allocated among the Members as
follows: (A) Profits attributable to Nonspecific LLC Investments shall be allocated among the
Members on a pro rata basis, based on the proportion of Units with a Nonspecific Sub -Class then
held by each such Member to the total number of Units with a Nonspecific Sub -Class then issued
and outstanding; and (B) Profits attributable an Individual LLC Investment shall be allocated
among the Members on a pro rata basis, based on the proportion of Units with a Sub -Class of
such Individual LLC Investment then held by each such Member to the total number of Units
with a Sub -Class of such Individual LLC Investment then issued and outstanding,
(b) Except as otherwise provided in Sections 4.05 and 4.06, Losses of the LLC
for each period shall be allocated among the Class A Members, the Class B Members, the Class
C Members, the Class D Members and the Class E Members as follows: (A) Losses attributable
to Nonspecific LLC Investments shall be allocated among the Members on a pro rata basis, based
on the proportion of Units with a Nonspecific Sub -Class then held by each such Member to the
total number of Class A Units, Class B Units, Class C Units, Class D Units and Class E Units
with a Nonspecific Sub -Class then issued and outstanding; and (B) Losses attributable an
Individual LLC Investment shall be allocated among the Members on a pro rata basis, based on
the proportion of Units with a Sub -Class of such Individual LLC Investment then held by each
such Member to the total number of Class A Units, Class B Units, Class C Units, Class D Units
and Class E Units with a Sub -Class of such Individual LLC Investment then issued and
outstanding.
4.05 R2guired Regglatogy Allocations.
(a) Limitation on and Reallocation of Losses. At no time shall any allocations of
Losses, or any item of loss or deduction, be made to a Member if and to the extent such alloca-
tion would cause such Member to have, or would increase the deficit in, any Adjusted Capital
Account Deficit of such Member at the end of any fiscal year. To the extent any Losses or items
are not allocated to one or more Members pursuant to the preceding sentence, such Losses shall
be allocated to the Members to which such losses or items may be allocated without violation of
this Section 4.05(a).
(b) Minimum Gain Chargeback. If there is a net decrease in the Minimum Gain
of the LLC during any fiscal year, then items of income or gain of the LLC for such fiscal year
(and, if necessary, subsequent fiscal years) shall be allocated to each Member in an amount equal
to such Member's share of the net decrease in the Minimum Gain, determined in accordance with
Regulations Section 1.704-2(d)(1). A Member's share of the net decrease in the Minimum Gain
of the LLC shall be determined in accordance with Regulations Section 1.704-2(g). The items of
income and gain to be so allocated shall be determined in accordance with Regulations Section
1.704-20)(2)(i).
(c) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or other
period (not including any Member Nonrecourse Deductions allocated pursuant to Section
4.05(d)) shall be allocated among the Members on a pro rata basis, based on the proportion of
Units then held by each such Member to the total number of Units then issued and outstanding.
Solely for purposes of determining each Member's proportionate share of the "excess nonre-
course liabilities" of the LLC, within the meaning of Regulations Section 1.752-3(a)(3), the LLC
Profits shall be allocated among the Members on a pro rata basis, based on the proportion of
Units then held by each such Member to the total number of Units then issued and outstanding.
The items of losses, deductions and Code Section 705(a)(2)(B) expenditures to be so allocated
shall be determined in accordance with Regulations Section 1.704-20)(1)(ii).
(d) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for
any fiscal year or other period shall be allocated to the Member who bears the economic risk of
loss with respect to the nonrecourse liability, as determined and defined under Regulations
Section 1.704-2(b)(4), to which such Member Nonrecourse Deductions are attributable in
accordance with Regulations Section 1.704-2(i)(1). The items of losses, deductions and Code
Section 705(a)(2)(B) expenditures to be so allocated shall be determined in accordance with
Regulations Section 1.704-20)(1)(ii).
(e) Member Minimum Gain Chargeback. Notwithstanding any contrary
provisions of this Article N, other than Section 4.05(b) above, if there is a net decrease in
Member Minimum Gain attributable to Member Nonrecourse Debt during any fiscal year, then
each Member who has a share of such Member Minimum Gain, determined in accordance with
Regulations Section 1.704-2(i), shall be allocated items of income and gain of the LLC, deter-
mined in accordance with Regulations Section 1.704-26)(2)(ii), for such fiscal year (and, if
necessary, subsequent fiscal years) in an amount equal to each such Member's share of the net
decrease in such Member Minimum Gain, determined in accordance with Regulations Section
1.704-2(i)(3) and 2(i)(5).
(f) Qualified Income Offset. If any Member unexpectedly receives an item
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of income and gain
shall be allocated to each such Member in an amount and manner sufficient to eliminate, as
quickly as possible and to the extent required by Regulations Section 1.704-1(b)(2)(ii)(d), the
Adjusted Capital Account Deficit of such Member, provided that an allocation pursuant to this
Section 4.05(f) shall only be made if and to the extent that such Member would have an Adjusted
Capital Account Deficit after accounting for all other allocations provided for in this Article IV
other than that described in this Section 4.05(f).
(g) Basis Adjustment. To the extent an adjustment to the adjusted tax basis of
any LLC asset pursuant to either of Code Sections 734(b) or 743(b) is required to be taken into
account in determining Capital Accounts pursuant to Regulations Section 1.704- 1 (b)(2)(iv)(m),
the amount of such adjustment to the Capital Accounts shall be treated ap 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 allocated to the Members in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to said Section of the
Regulations.
(h) Gross Income Allocation. If at the end of any LLC fiscal year any Member has
a Capital Account deficit which is in excess of the sum of the items to be credited to a Member's
Capital Account under clause (a) of the definition of Adjusted Capital Account Deficit, then each
such Member shall be allocated items of income and gain in the amount of such excess as
quickly as possible provided that an allocation pursuant to this Section 4.05(h) shall only be
made if and to the extent that such Member would have a Capital Account deficit in excess of
such sum after accounting for all other allocations provided for in this Article N other than that
described in this Section 4.05(h). As among Members having such excess, if there are not
sufficient items of income and gain to eliminate all such excess, such allocations shall be made in
proportion to the amount of each Member's respective excess.
4.06 Curative Allocations. The allocations set forth in Section 4.05 are intended to
comply with certain requirements of Regulations Sections 1.704-1(b) and 1.704-2 and shall be
interpreted consistently therewith. Such allocations may not be consistent with the manner in
which the Members intend to divide LLC distributions and to make Profit and Loss allocations.
Accordingly, by the Approval of the Managers, after effecting the allocations required pursuant
to Section 4.05, other allocations of Profits, Losses and items thereof shall be divided among the
Members so as to prevent the allocations in Section 4.05 from distorting the manner in which
LLC distributions will be divided among the Members pursuant to Sections 4.01 and 4.02 hereof.
In general, the Members anticipate that this will be accomplished by specifically allocating other
Profits, Losses and items of income, gain, loss and deduction among the Members so that the net
amount of allocations under Section 4.05 and allocations under this Section 4.06 to each such
Member is zero. However, the Managers shall have discretion to accomplish this result in any
reasonable manner.
4.07 Tax Allocations and Book Allocations.
(a) Except as otherwise provided in this Section 4.07, for federal income tax
purposes, each item of income, gain, loss and deduction shall, to the extent appropriate, be
allocated among the Members in the same manner as its correlative item of "book" income, gain,
10
loss or deduction has been allocated pursuant to the other provisions of this Article IV.
(b) In accordance with Code Section 704(c) and the Regulations thereunder,
depreciation, amortization, gain and loss, as determined for tax purposes, with respect to any
property whose Book Value differs from its adjusted basis for federal income tax purposes shall,
for tax purposes, be allocated among the Members so as to take account of any variation between
the adjusted basis of such property to the LLC for federal income tax purposes and its Book
Value, such allocation to be made by the Approval of the Managers in any manner which is
permissible under said Code Section 704(c) and the Regulations thereunder and the Regulations
under Code Section 704(b). 11
(c) In the event the Book Value of any property of the LLC is subsequently
adjusted, subsequent allocations of income, gain, loss and deduction with respect to any such
property shall take into account any variation between the adjusted basis of such asset for federal
income tax purposes and its respective Book Value in the manner provided under Section 704(c)
of the Code and the Regulations thereunder.
(d) Allocations pursuant to this Section 4.07 are solely for federal, state, and local
income tax purposes, and shall not affect, or in any way be taken into account in computing, any
Member's Capital Account or Sub -Capital Account or share of Profits, Losses, other items, or
distributions pursuant to any provision of this Agreement.
4.08 General Allocation and Distribution Rules.
(a) For purposes of determining the Profits, Losses, or any other items allocable
to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly,
or other basis, as determined by Approval of the Managers using any permissible method under
Code Section 706 and the Regulations thereunder. Except as otherwise provided in this
Agreement, all items of income, gain, loss, and deduction shall be allocated among the Members
in the same proportions as the allocations of Profits or Losses for the fiscal year in which such
items are to be allocated.
(b) Upon the admission of a new Member or the Transfer of an interest, the new
and old Members or the transferor and transferee shall be allocated shares of Profits and Losses
and other allocations and shall receive distributions, if any, based on the portion of the fiscal year
that the new or transferred LLC interest was held by the new and old Members, or the transferor
and transferee, respectively. For the purpose of allocating Profits and Losses and other
allocations and distributions, (i) such admission or Transfer shall be deemed to have occurred on
the first day of the month in which it occurs, or if such date shall not be permitted for allocation
purposes under the Code or the Regulations, on the nearest date otherwise permitted under the
Code or the Regulations, and (ii) if required by the Code or the Regulations, the LLC shall close
its books on an interim basis on the last day of the previous calendar month.
4.09 Tax Withholding. If the LLC incurs a withholding tax obligation with respect to the
share of income allocated to any Member, (a) any amount which is (i) actually withheld from a
11
distribution that would otherwise have been made to such Member and (ii) paid over in
satisfaction of such withholding tax obligation shall be treated for all purposes under this
Agreement as if such amount had been distributed to such Member, and (b) any amount which is
so paid over to a taxing authority by the LLC as a withholding tax obligation, but which exceeds
the amount, if any, actually withheld from a distribution which would otherwise have been made
to such Member, shall be treated as an interest-free advance to such Member. Amounts treated
as advanced to any Member pursuant to this Section shall be repaid by such Member to the LLC
within thirty (30) days after the Managers, acting by Approval, give notice to such Member
making demand therefor. Any amounts so advanced and not timely repaid by such Member shall
bear interest, commencing on the expiration of said 30 -day period, compounded monthly on
unpaid balances, at an annual rate equal to the lowest Applicable Federal Rate as of such
expiration date. The LLC shall collect any unpaid amounts so advanced from any LLC
distributions that would otherwise be made to such Member.
-ARTICLE V
Management
5.01 Management of the LLC. The overall management and control of the business and
affairs of the LLC shall be vested in the Managers, acting by Approval of the Managers. All
management and other responsibilities not specifically reserved to the Members in this
Agreement shall be vested in the Managers, and the Members shall have no voting rights except
as specifically provided in this Agreement. Each Manager shall devote such time to the affairs of
the LLC as is reasonably necessary for performance by such Manager of his or her duties,
provided such Person shall not be required to devote full time to such affairs. The Managers
shall have the right and power to manage, operate, and control the LLC, to do all things necessary
or appropriate to carry on the business and purposes of the LLC, including without limitation the
right:
(a) To manage the business of the LLC, including through Persons employed by
the LLC for such purpose;
(b) To execute, deliver, make, modify or amend such documents and instruments,
in the name of the LLC, as the Managers, acting by Approval, may deem necessary or desirable
in connection with the management of the business of the LLC or for the purposes of the LLC;
(c) To acquire, sell, transfer, assign, finance, convey, lease, mortgage or
otherwise dispose of all or any part of the business of the LLC and/or all or any part of the assets
of the LLC;
(d) To borrow money and otherwise obtain credit and other financial
accommodations;
(e) To guarantee the repayment of the loans of other parties, and to secure the
same by mortgage, pledge or other loan on any of the assets of the LLC;
12
(f) To perform or cause to be performed all of the LLC's obligations under any
agreement to which the LLC is a party, including without limitation, any obligations of the LLC
or otherwise in respect of any indebtedness secured in whole or in part by, or by lien on, or
security interest in, any asset(s) of the LLC;
(g) To employ, engage, retain or deal with any Persons to act as employees,
agents, brokers, accountants, lawyers or in such other capacity as the Managers, acting by
Approval, may deem necessary or desirable;
w= -
(h) To appoint individuals to act as officers of the LLC and delegate to such
individuals such authority to act on behalf of the LLC and such duties and functions as the
Managers, acting by Approval, shall determine, including such duties as would normally be
delegated to officers of a corporation holding similar offices;
(i) To adjust, compromise, settle or refer to arbitration any claim in favor of or
against the LLC or any of its assets, to make elections in connection with the preparation of any
federal, state and local tax returns of the LLC, and to institute, prosecute, and defend any legal
action or any arbitration proceeding;
0) To acquire and enter into any contract of insurance necessary or proper for the
protection of the LLC and/or any Member and/or any Manager, including without limitation to
provide the indemnity described in Section 5.05 or any portion thereof;
(k) To establish a record date for any distribution to be made under Article 1V;
and
(1) To perform any other act which the Managers, acting by Approval, may deem
necessary or desirable for the LLC or its business.
5.02 Bindingthe LLC. Any action taken by a Manager as a Manager of the LLC with the
Approval of the Managers shall bind the LLC and any other Managers and shall be deemed to be
the action of the LLC and of any other Managers. The signatures of any one (1) or more
Managers on any agreement, contract, instrument or other document shall be sufficient to bind
the LLC in respect thereof and conclusively evidence the authority of such Manager and the LLC
with respect thereto, and no third party need look to any other evidence"or require joinder or
consent of any other party.
5.03 Compensation of Managers and Members. No payment shall be made by the LLC
to any Manager or Member for such Manager's or Member's services as a Manager or Member
except as provided in this Agreement. Each Manager shall be entitled to reimbursement from the
LLC for all expenses incurred by such Manager in managing and conducting the business and
affairs of the LLC. The Managers, acting by Approval, shall determine which expenses, if any,
are allocable to the LLC in a manner which is fair and reasonable to the Managers and the LLC,
and if such allocation is made in -good faith it shall be conclusive in the absence of manifest
13
error.
5.04 Contracts with Affiliated Persons: Immediate Family Members. With the Approval
of the Managers, the LLC may enter into one or more agreements, leases, contracts or other
arrangements for the furnishing to or by the LLC of goods, services or space with any Member,
Manager, Affiliated Person or member of the Immediate Family, and may pay compensation
thereunder for such goods, services or space, provided in each case the amounts payable
thereunder are reasonably comparable to those which would be payable to unaffiliated Persons
under similar agreements, and if the determination of such amounts is made in good faith it shall
be conclusive absent manifest error.
5.05 Indemnification. Except as prohibited in the Act, the LLC shall indemnify the
officers and Managers of the LLC, and the officers, directors and shareholders of any Manager
which is a corporation in accordance with applicable law and the articles of organization, by-laws
and other governing documents of such corporation, for any liability incurred and/or for any act
performed by them within the scope of the authority conferred on them by this Agreement, and/or
for any act omitted to be performed, except for their gross negligence or willful misconduct,
which indemnification shall include all reasonable expenses incurred, including reasonable legal
and other professional fees and expenses. The doing of any act or failure to do any act by a
Manager, the effect of which may cause or result in loss or damage to the LLC, if done in good
faith to promote the best interests of the LLC, shall not subject the Manager to any liability to the
Members except for gross negligence or willful misconduct.
5.06 Other Activities. The Members, Managers and any Affiliates of any of them may
engage in and possess interests in other business ventures and investment opportunities of every
kind and description, independently or with others, including serving as managers and general
partners of other limited liability companies and partnerships with purposes similar to those of
the LLC. Neither the LLC nor any other Member or Manager shall have any rights in or to such
ventures or opportunities or the income or profits therefrom; provided, however, that
notwithstanding the immediately preceding provisions, any compensation earned by the initial
Class F Member as a result of consulting services rendered by him in the area of real estate
development shall be treated as revenue of the LLC.
5.07 Successor Managers. Reference is hereby made to the fact that the initial Managers
of the LLC are those Persons set forth on Schedule II.
(a) The total number of Managers shall equal six (6); (i) one (1) Class A Manager
(as hereafter defined), (ii) one (1) Class B Manager (as hereafter defined), (iii) one (1) Class C
Manager (as hereafter defined), (iv) one (1) Class D Manager (as hereafter defined), (v) one (1)
Class E Manager (as hereafter defined) and (vi) one (1) Class F Manager (as hereafter defined).
(i) The Class A Members shall collectively have the authority to designate
one (1) Manager of the LLC ("Class A Manager"), such designation to occur with the written
consent or approval of Class A Members holding in the aggregate Class A Units representing
more than fifty percent (50%) of•the total number of Class A Units in the LLC ("Consent of
14
Class A Members"). A Class A Manager's status as Manager may be terminated at any time,
with or without cause, with the Consent of the Class A Members. In the event that any Class A
Manager ceases to serve as Manager (whether by reason of termination, resignation or any other
cause), thereby creating a vacancy in the position of Class A Manager, the Class A Members,
acting by Consent of the Class A Members, shall designate a successor Class A Manager to fill
such vacancy. For purposes of determining the "Approval" of the Managers, the Class A
Manager shall be deemed to represent the number of Class A Units in the LLC then issued and
outstanding.
(ii) The Class B Members shall collectively have tbe_authority to designate
one (1) Manager of the LLC ("Class B Manager"), such designation to occur with the written
consent or approval of Class B Members holding in the aggregate Class B Units representing
more than fifty percent (50%) of the total number of Class B Units in the LLC ("Consent of Class
B Members"). A Class B Manager's status as Manager maybe terminated at any time, with or
without cause, with the Consent of the Class B Members. In the event that any Class B Manager
ceases to serve as Manager (whether by reason of termination, resignation or any other cause),
thereby creating a vacancy in the position of Class B Manager, the Class B Members, acting by
Consent of the Class B Members, shall designate a successor Class B Manager to fill such
vacancy. For purposes of determining the "Approval" of the Managers, the Class B Manager
shall be deemed to represent the number of Class B Units in the LLC then issued and
outstanding.
(iii) The Class C Members shall collectively have the authority to
designate one (1) Manager of the LLC ("Class C Manager'), such designation to occur with the
written consent or approval of Class C Members holding in the aggregate Class C Units
representing more than fifty percent (50%) of the total number of Class C Units in the LLC
("Consent of Class C Members"). A Class C Manager's status as Manager may be terminated at
any time, with or without cause, with the Consent of the Class C Members. In the event that any
Class C Manager ceases to serve as Manager (whether by reason of termination, resignation or
any other cause), thereby creating a vacancy in the position of Class C Manager, the Class C
Members, acting by Consent of the Class C Members, shall designate a successor Class C
Manager to fill such vacancy. For purposes of determining the "Approval" of the Managers, the
Class C Manager shall be deemed to represent the number of Class C Units in the LLC then
issued and outstanding.
(iv) The Class D Members shall collectively have the authority to
designate one (1) Manager of the LLC ("Class D Manager"), such designation to occur with the
written consent or approval of Class D Members holding in the aggregate Class D Units
representing more than fifty percent (50%) of the total number of Class D Units in the LLC
("Consent of Class D Members"). A Class D Manager's status as Manager may be terminated at
any time, with or without cause, with the Consent of the Class D Members. In the event that any
Class D Manager ceases to serve as Manager (whether by reason of termination, resignation or
any other cause), thereby creating a vacancy in the position of Class D Manager, the Class D
Members, acting by Consent of the Class D Members, shall designate a successor Class D
Manager to fill such vacancy. For purposes of determining the "Approval" of the Managers, the
15
Class D Manager shall be deemed to represent the number of Class D Units in the LLC then
issued and outstanding.
(v) The Class E Members shall collectively have the authority to designate
one (1) Manager of the LLC ("Class E Manager"), such designation to occur with the written
consent or approval of Class E Members holding in the aggregate Class E Units representing
more than fifty percent (50%) of the total number of Class E Units in the LLC ("Consent of Class
E Members"). A Class E Manager's status as Manager may be terminated at any time, with or
without cause, with the Consent of the Class E Members. In the event that any Class E Manager
" ceases to serve as Manager (whether by reason of termination, resignation or any other cause),
thereby creating a vacancy in the position of Class E Manager, the CIass E Members, acting by
Consent of the Class E Members, shall designate a successor Class E Manager to fill such
vacancy. For purposes of determining the "Approval" of the Managers, the Class E Manager
shall be deemed to represent the number of Class E Units in the LLC then issued and
outstanding.
(vi) The Class F Members shall collectively have the authority to designate
one (1) Manager of the LLC ("Class F Manager"), such designation to occur with the written
consent or approval of Class F Members holding in the aggregate Class F Units representing
more than fifty percent (50%) of the total number of Class F Units in the LLC ("Consent of Class
F Members'). A Class F Manager's status as Manager may be terminated at any time, with or
without cause, with the Consent of the Class F Members. In the event that any Class F Manager
ceases to serve as Manager (whether by reason of termination, resignation or any other cause),
thereby creating a vacancy in the position of Class F Manager, the Class F Members, acting by
Consent of the Class F Members, shall designate a successor Class F Manager to fill such
vacancy. For purposes of determining the "Approval" of the Managers, the Class F Manager
shall be deemed to represent the number of Class F Units in the LLC then issued and
outstanding.
(b) Notwithstanding the preceding provisions of this section, any designation of a
Manager by the Members of a Class shall be subject to the Approval of the other Managers who
are then serving, or, if no other Managers are then serving, then such designation shall be subject
to the Consent of the Members; provided, however, that in no event shall such Approval or
Consent be unreasonably withheld.
(c) No Class A Manager may resign from, retire from, abandon or otherwise
terminate his status as a Manager except after sixty (60) days' notice to the Class A Members,
unless such Class A Members, acting by Consent, otherwise agree in writing. No Class B
Manager may resign from, retire from, abandon or otherwise terminate his status as a Manager
except after sixty (60) days' notice to the Class B Members, unless such Class B Members,
acting by Consent, otherwise agree in writing. No Class C Manager may resign from, retire
from, abandon or otherwise terminate his status as a Manager except after sixty (60) days' notice
to the Class C Members, unless such Class C Members, acting by Consent, otherwise agree in
writing. No Class D Manager may resign from, retire from, abandon or otherwise terminate his
status as a Manager except after sixty (60) days' notice to the Class D Members, unless such
16
Class D Members, acting by Consent, otherwise agree in writing. No Class E Manager may
resign from, retire from, abandon or otherwise terminate his status as a Manager except after
sixty (60) days' notice to the Class E Members, unless such Class E Members, acting by
Consent, otherwise agree in writing. No Class F Manager may resign from, retire from, abandon
or otherwise terminate his status as a Manager except after sixty (60) days' notice to the Class F
Members, unless such Class F Members, acting by Consent, otherwise agree in writing.
ARTICLE VI
Fiscal Matters _L
6.01 Books and Records. The Managers shall keep or cause to be kept complete and
accurate books and records of the LLC, using the same methods of accounting which are used in
preparing the federal income tax returns of the LLC to the extent applicable and otherwise in
accordance with generally accepted accounting principles .consistently applied. Such books and
records shall be maintained and be available, in addition to any documents and information
required to be furnished to the Members under the Act, at an office of the LLC for examination
and copying by any Member, or his, her or its duly authorized representative, at his reasonable
request and at his expense during ordinary business hours. A current list of the full name and last
known address of each Member and Manager, a copy of this Agreement, any amendments thereto
and the Articles, including all certificates of amendment thereto, executed copies of all powers of
attorney, if any, pursuant to which this Agreement, any amendment, the Articles or any certificate
of amendment has been executed, copies of the LLC's financial statements and federal, state and
local income tax returns and reports, if any, for the three most recent years, shall be maintained at
the registered office of the LLC required by the Act. Within one hundred and twenty (120) days
after the end of each fiscal year of the LLC, each Member shall be furnished with financial
statements which shall contain a balance sheet as of the end of the fiscal year and statements of
income and cash flows for such fiscal year. Any Member may, at any time, at his, her or its own
expense, cause an audit or review of the LLC books to be made by a certified public accountant
of his, her or its own selection.
6.02 Bank Accounts. Bank accounts and/or other accounts of the LLC shall be
maintained in such banking and/or other financial institution(s) as shall be selected by the
Approval of the Managers, and withdrawals shall be made and other activity conducted on such
signature or signatures as determined by the Approval of the Managers.
6.03 Fiscal Year. The fiscal year of the LLC shall end on December 31 of each year.
6.04 Section 754 Election. Upon the request of any Member or any successor in interest
of a Member, the LLC shall file an election under Section 754 of the Code, permitting an
adjustment to basis under Section 743 and/or Section 734 of the Code, or any successor
provisions thereto.
17
ARTICLE VII
Transfer and Redemption of Interests
7.01 General Provisions Regarding Transfers. The following Transfers shall be
permitted, and the respective transferees shall be admitted to the LLC as Members, in each case
subject to the provision of Section 7.02, and conditioned upon appropriate exemptions from
registration under applicable federal and state securities laws.
` (a) An interest as a Member of the LLC may be Transfeaed from time to time as
a part of any proceeding under the present or any future federal bankruptcy act or any other
present or future applicable federal, state, or other statute or law relating to bankruptcy,
insolvency, or other relief for debtors, and subject to the requirements and provisions thereof.
(b) An interest as a Member of the LLC may be Transferred from time to time to
any Legal Representative(s) and/or Affiliate(s) and/or member(s) of the Immediate Family of the
transferring Member.
(c) An interest as a Member of the LLC may be Transferred from time to time
with the Approval of the Managers, which may be withheld for any reason or for no reason.
7.02 Requirements for Transfer.
(a) Every Transfer of an interest as a Member of the LLC permitted by this
Article VII, including without limitation Transfers permitted by Section 7.01 and any issuance of
new or additional Units by the LLC, shall nevertheless be subject to the following:
(i) No Transfer of any interest in the LLC may be made if, at the time
such Transfer is proposed to be made, it is determined that such Transfer would cause or result in
a breach of any agreement binding upon the LLC or of then applicable rules and regulations of
any governmental authority having jurisdiction over such Transfer.
(ii) Notwithstanding anything contained herein to the contrary, no interest
as a Member of the LLC shall be Transferred if, by reason of such Transfer, the classification of
the LLC as a partnership for federal income tax purposes would be adversely affected or
jeopardized, or if such Transfer would have any other substantial adverse effect for federal
income tax purposes.
(iii) In the event of any Transfer, there shall be filed with the LLC a duly
executed and acknowledged counterpart of the instrument effecting such Transfer. The
transferee shall execute such additional instruments as shall be reasonably required by the LLC.
If and for so long as such instruments are not so executed and filed, the LLC need not recognize
any such Transfer for any purpose, and the transferee shall be considered an assignee and not a
Member.
18
(iv) Upon the admission or withdrawal of a Member, .(A) this Agreement
(including without limitation Schedule I and Schedule II hereto) shall be amended appropriately
to reflect the then existing names and addresses of the Members and their respective Units and
the names and addresses of the Managers, and (B) the Articles shall be amended appropriately to
reflect the then existing names and addresses of the Members and the Managers.
Notwithstanding the provisions of Section 9.08, it is expressly provided that any amendment to
the Agreement and/or the Articles required pursuant to this subparagraph (iv) shall be made
solely with the Approval of the Managers, and shall not require the Consent of all of the
Members.
(b) Any Person who acquires in any manner whatsoever an interest (or any part
thereof] in the LLC, whether or not such Person has accepted and assumed in writing the terms
and provisions of this Agreement or been admitted into the LLC as a Member as provided in
Section 7.02(a), shall be deemed, by acceptance of the acquisition thereof, to have agreed to be
subject to and bound by all of the terms, conditions, and obligations of this Agreement with
respect to such interest and shall be subject to the provisions of this Agreement with respect to
any subsequent Transfer of such interest.
(c) Any Transfer in contravention of any of the provisions of this Agreement shall
be null and void and ineffective to transfer any interest in the LLC, and shall not bind, or be
recognized by, or on the books of, the LLC, and any transferee or assignee in such transaction
shall not be, or be treated as, or deemed to be, a Member for any purpose. In the event any
Member shall at any time Transfer an interest in the LLC in contravention of any of the
provisions of this Agreement, then each other Member shall, in addition to all rights and
remedies at law and equity, be entitled to a decree or order restraining and enjoining such
transaction, and the offending Member shall not plead in defense thereto that there would be an
adequate remedy at law; it being expressly hereby acknowledged and agreed by the Members that
damages at law would be an inadequate remedy for a breach or threatened breach or other
violation of the provisions concerning such transactions set forth in this Agreement.
7.03 Redemptions. A Member's Units shall be redeemed by the LLC upon the following
terms and conditions:
(a) For purposes of this Section 7.03, the following definitions shall apply:
(i) A "Redemption Event" shall be deemed to occur with respect to any
Member (A) upon the Approval of the Managers, if such Member fails to make a timely
contribution of all amounts due the LLC pursuant to Section 2.02(a) of this Agreement; provided,
however, that if such Member also is a Manager, then the Approval of the Managers shall be
determined without reference to the vote of such Member -Manager; and/or (B) upon a Transfer
of any portion of such Member's interest in the LLC, if such transfer is not permitted pursuant to
the preceding Sections 7.01 and 7.02(x).
19
(ii) "Redeemed Member" shall mean the Member with respect to whom a
Redemption Event has occurred, and any transferee or assignee, whether immediate or remote, of
any of such Member's Units.
(iii) "Redeemed Units" shall mean the Units in the LLC owned by the
Redeemed Member.
(iv) `Triggering Date" shall mean the date on which the Redemption
Event occurred with respect to the Redeemed Member.
(v) "Parties" shall collectively mean the LLC and the Redeemed Member.
(b) Upon the occurrence of a Redemption Event, the Redeemed Member shall
sell and the LLC shall buy the Redeemed Units. The sale shall occur upon the date set forth for
the closing ("Closing") in the following subparagraph (ii).
(i) The purchase price ("Purchase Price") to be paid by the LLC to the
Redeemed Member in consideration of the complete redemption of the Redeemed Units shall
equal the then balance of such Member's adjusted Capital Account,
(ii) The Closing shall take place on the date that is one hundred fifty (150)
days after the Triggering Date at the offices of the LLC, or at such other time and place as the
Parties may agree.
(iii) At the Closing, the Redeemed Member shall surrender his Units, and
the LLC shall pay the Purchase Price in accordance with the following provisions of this
subparagraph (iii). It is expressly provided that, as of the Closing, the Redeemed Member shall
no longer be a Member in the LLC.
(A) The LLC shall pay to the Redeemed Member an amount equal
to twenty percent (20%) of the Purchase Price, in cash or by check.
(B) The LLC shall deliver its promissory note ("Note") to the
Redeemed Member for an amount equal to eighty percent (80%) of the Purchase Price. The Note
shall be on a direct reduction basis, and shall provide for quarterly payments over a three (3) year
term. Such payments shall begin on the date which is one (1) month after the Closing date. The
Note shall provide for interest from the date of the Closing on the unpaid principal balance equal
to the prime rate on the Triggering Date as published in the Wall Street Journal. The LLC shall
have the right at any time to prepay the Note in full or in part.
(iv) Notwithstanding the provisions of the preceding subparagraph (iii),
the LLC shall not be required to make payments to former Members pursuant to this Section 7.03
which, in the aggregate, would exceed ten percent (10%) of the aggregate gross receipts of the
LLC for such period. If the aggregate amount of payments otherwise due to former Members
pursuant to this Section would reasonably be expected to exceed this ten percent (10%) limitation
20
in any calendar year or portion thereof, with the Approval of the Managers, the LLC shall pay
such former Members, on a pro rata basis, based on the amount stilt owed such Members,
quarterly payments totaling ten percent (10%) of the LLC's anticipated aggregate gross receipts
for such period, and the balance of that period's payment obligations to such former Members
shall be deferred to the following calendar quarter or quarters, until such amounts can be paid
without violating such limitation with respect to any such year or years. Within thirty (30) days
following the end of each calendar year, the LLC shall make a pro rata adjusted payment to the
former Members if and to the extent that actual aggregate gross receipts during the prior year (or
relevant portion thereof) have exceeded the anticipated amount.
ARTICLE VIII
Dissolution and Ten-nination
8.01 Events Causing Dissolution. • The LLC shall be dissolved and its affairs wound up
upon the earliest to occur of:
(a) The sale or other disposition of all or substantially all of the assets of the LLC,
unless the disposition is a transfer of assets of the LLC in return for consideration other than cash
and, by Approval of the Managers, a determination is made not to distribute any such non-cash
items to the Members;
(b) The election for any reason to dissolve the LLC made in writing by the
Approval of the Managers;
(c) Any consolidation or merger of the LLC with or into any entity unless: (1) the
LLC is the resulting or surviving entity; or (2) the Managers otherwise Approve;
(d) The entry of a decree of judicial dissolution;
(e) The ninety-nine (99) year anniversary of the formation of the LLC; or
(f) Any event set forth in the Act that requires dissolution.
If the Managers do not elect to dissolve the LLC within ninety (90) days after the
death, insanity, Bankruptcy, retirement, resignation or expulsion of any Member of the LLC, then
the LLC shall not be dissolved by reason of such event and its affairs shall not be wound up, and it
shall remain in existence as a limited liability company under the laws of the State of Utah.
8.02 Procedures on Dissolution. Dissolution of the LLC shall be effective on the day on
I
hich the event occurs giving rise to the dissolution, but the LLC shall not terminate until the
Articles shall be cancelled. Notwithstanding the dissolution of the LLC, prior to the termination
of the LLC, as aforesaid, the business and the affairs of the LLC shall be conducted so as to
maintain the continuous operation of the LLC pursuant to the terms of this Agreement. Upon
dissolution of the LLC, the Managers acting by Approval, or if none, a liquidator elected by the
21
Consent of the Members shall liquidate the assets of the LLC, apply and distribute the proceeds
thereof under Section 4.02, and cause the cancellation of the Articles.
ARTICLE TX
General Provisions
9.01 Notices. Any and all notices under this Agreement shall be effective (a) on the
fourth business day after being sent by registered or certified mail, return receipt requested,
postage prepaid, or (b) on the first business day after being sent by express mail, telecopy, or
commercial expedited delivery service providing a receipt for delivery. All such notices in order
to be effective shall be addressed, if to the LLC at its registered office under the Act, if to a
Member at the last address of record on the LLC books, and copies of such notices shall also be
sent to the last address for the recipient which is known to the sender, if different from the
address so specified.
9.02 Word Meanings. The words such as "herein", "hereinafter", "hereof' and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision in which such
words appear unless the context otherwise requires. The singular shall include the plural and the
masculine gender shall include the feminine and neuter, and vice versa, unless the context
otherwise requires. All section references, except as otherwise provided herein, are to sections of
this Agreement.
9.03 Binding Provisions. Subject to the restrictions on transfers set forth herein, the
covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the
parties hereto, their heirs, Legal Representatives, successors and assigns.
9.04 Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Utah, including the Act, as interpreted by the courts of the State of
Utah, notwithstanding any rules regarding choice of law to the contrary.
9.05 Counterparts. This Agreement may be executed in several counterparts and as so
executed shall constitute one agreement binding on all parties hereto, notwithstanding that all of
the parties have not signed the original or the same counterpart.
9.06 Separability of Provisions. Each provision of this Agreement shall be considered
separable. If for any reason any provision or provisions herein are determined to be invalid and
contrary to any existing or future law, such invalidity shall not impair the operation of or affect
those portions of this Agreement which are valid, and if for any reason any provision or
provisions herein would cause the Members to be liable for or bound by the obligations of the
LLC, such provision or provisions shall be deemed void and of no effect.
9.07 Section Titles. Section titles are for descriptive purposes only and shall not control
or alter the meaning of this Agreement as set forth in the text.
22
9.08 Amendments. Except as otherwise specifically provided herein, including without
Iimitation Section 7.02(a)(iv), this Agreement may be amended or modified only with the
Approval of the Managers and the Consent of the Members.
9.09 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject matter.
9.10 Waiver of Partition. Each Member agrees that irreparable damage would be done to
the LLC if any Member brought an action in court to dissolve the LLC. „Accordingly, each
Member agrees that he, she or it shall not, either directly or indirectly, take any action to require
partition or appraisement of the LLC or of any of the assets or properties of the LLC, and
notwithstanding any provisions of this Agreement to the contrary, each Member (and his, her or
its successors and assigns) accepts the provisions of the Agreement as his, her or its sole entitle-
ment on termination, dissolution and/or liquidation of the LLC and hereby irrevocably waives
any and all rights to maintain any action for partition or to compel any sale or other liquidation
with respect to his, her or its interest, in or with respect to, any assets or properties of the LLC;
and each Member agrees that he, she or it will not petition a court for the dissolution, termination
or liquidation of the LLC.
9.11 Survival of Certain Provisions. The Members acknowledge and agree that this
Agreement contains certain terms and conditions which are intended to survive the dissolution
and termination of the LLC, including, but without limitation, the provisions of Section 2.05 and
5.05. The Members agree that such provisions of this Agreement which by their terms require,
given their context, that they survive the dissolution and termination of the LLC so as to
effectuate the intended purposes and agreements of the Members hereunder shall survive
notwithstanding that such provisions had not been specifically identified as surviving and
notwithstanding the dissolution and termination of the LLC or the execution of any document
terminating this Agreement, unless such document specifically provides for nonsurvival by
reference to this Section 9.11 and to the specific provisions hereof which are intended.not to
survive.
ARTICLE X
Definitions
The following defined terms used in this Agreement shall have the meanings specified
below:
"Act" shall mean the Utah Limited Liability Company Act, as set forth in §§ 48-2c-101
et seq. , Utah Code Annotated, 2001, as amended from time to time.
"Adjusted Ca ital Account Deficit" shall mean, with respect to any Member, the deficit
balance, if any, in such Member's aggregate Capital Account as of the end of the relevant fiscal
year, after giving effect to the following adjustments:
23
(a) Credit to such Capital Account any amounts which such Member is obligated to
restore pursuant to any provision of this Agreement or is deemed to be obligated to restore
pursuant to Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in Regulations Section
1.704- 1 (b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition is intended to comply with the provisions of Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Affiliated Person" or "Affiliate" shall mean, with reference to a specified Person, (a) any
Person who owns directly or indirectly ten percent (10%) or more of the beneficial ownership in
such Person, (b) any one or -more Legal Representatives of such Person and/or any Persons
referred to in the preceding clause (a); and, (c) any entity in which any one or more of such Person
and/or the Persons referred to in the preceding clauses (a) or (b) owns directly or indirectly ten
percent (10%) or more of the beneficial ownership.
"Agreement' shall mean this Operating Agreement as it may be amended, supplemented,
or restated from time to time.
"Autiroval 'or "Approved" shall mean the written consent or approval of Managers
representing more than fifty percent (50%) of the total number of Units in the LLC then issued
and outstanding.
"Applicable Federal Rate" shall mean the Applicable Federal Rate as that term is defined
in Code Section 1274(d)(1), whether the short-term, mid-term or long-term rate, as the case may
be, as published from time to time by the Secretary of the Treasury.
"Articles" shall mean the Articles of Organization creating the LLC, as it may, from time
to time, be amended in accordance with the Act,
"Bankruptcy' shall mean any of the following:
(a) If any Member shall file a voluntary petition in bankruptcy, or shall
file any petition or answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under the present or any future federal bankruptcy act or
any other present or future applicable federal, state, or other statute or law relating to bankruptcy,
insolvency, or other relief for debtors, or shall file any answer or other pleading admitting or
failing to contest the material allegations of any petition in bankruptcy or any petition seeking
any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar
relief filed against such Member, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver, conservator, or liquidator of such Member or of all or any substantial part of
his, her or its properties or his, her or its interest in the LLC (the term "acquiesce" as used herein
includes but is not limited to the -failure to file a petition or motion to vacate or discharge any
24
order, judgment, or decree within thirty days after such order, judgment or decree); or
(b) If a court of competent jurisdiction shall enter in an order, judgment
or decree approving a petition filed against any Member seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the
present or any future federal bankruptcy act or any other present or future applicable federal,
state, or other statute or law relating to bankruptcy, insolvency, or other relief for debtors and
such Member shall acquiesce in the entry of such order, judgment, or decree, or if any Member
shall suffer the entry of an order for relief under Title 1 I of the United States Code and such
order, judgment, or decree shall remain unvacated and unstayed for an aggregate of sixty (60)
days (whether or not consecutive) from the date of entry thereof, or if any trustee, receiver,
conservator, or liquidator of any Member or of all or any substantial part of his, her or its proper-
ties or his, her or its interest in the LLC shall be appointed without the consent or acquiescence of
such Member and such appointment shall remain unvacated and unstayed for an aggregate of
sixty (60) days (whether or not consecutive); or
(c) If any Member shall make an assignment for the benefit of creditors or take
any other similar action for the protection or benefit of creditors.
"Book Value' shall mean, with respect to any asset of the LLC, such asset's adjusted
basis for federal income tax purposes, except that:
(a) The initial Book Value of any asset contributed by a Member of
the LLC shall be the gross fair market value of such asset (not reduced for any liabilities to which
it is subject or which the LLC assumes), as such value is determined and for which credit is given
to the contributing Member under this Agreement;
(b) The Book Values of all assets of the LLC shall be adjusted to equal their
respective gross fair market values, as determined by Approval of the Managers, at and as of the
following times:
(i) The acquisition of an additional or new interest in the LLC by a
new or existing Member in exchange for other than a de minimis capital
contribution by such Member, if the Managers acting by Approval
reasonably determine that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Members;
(ii) The distribution by the LLC to a Member of more than a de
minimis amount of any asset of the LLC (including cash or cash
equivalents) as consideration for all or any portion of an interest in the
LLC, if the Managers, acting by Approval, reasonably determine that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Members; and
(iii) The liquidation of the LLC within the meaning of Regulations
25
Section 1.704-1(b)(2)(ii)(g); and
(c) The Book Value of the assets of the LLC shall be increased (or decreased)
to reflect any adjustment to the adjusted basis of such assets pursuant to Section 734(b) or
Section 743(b) of the Code, but only to the extent such adjustments are taken into account in
determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided,
however, that Book Value shall not be adjusted pursuant to this clause (c) to the extent that the
Managers, acting by Approval, determine that an adjustment pursuant to the immediately
preceding clause (b) hereof is necessary or appropriate in connection with the transaction that
would otherwise result in an adjustment pursuant to this clause (c).
If the Book Value of an asset has been determined or adjusted pursuant to the preceding
clauses (a), (b) or (c), such Book Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits or Losses.
"Capital Account" shall mean a capital account maintained and adjusted in accordance
with the Code and the Regulations, including the Regulations under Section 704(b) and (c) of the
Code. The Capital Account of each Member shall be:
(a) Credited with all payments made to the LLC by such Member on account
of Capital Contributions (and as to any property other than cash or a promissory note of the
contributing Member, the agreed (as between the Members) fair market value of such property,
net of liabilities secured by such property and assumed by the LLC or subject to which such
contributed property is taken) and by such Member's allocable share of Profits and items in the
nature of income and gain of the LLC;
(b) Charged with the amount of any distributions to such Member (and as to
any distributions of property other than cash or a promissory note of a Member or the LLC, by
the agreed fair market value of such property, net of liabilities secured by such property and
assumed by such Member or subject to which such distributed property is taken), and by such
Member's allocable share of Losses and items in the nature of losses and deductions of the LLC;
(c) Adjusted simultaneously with the making of any adjustment to the Book
Value of the LLC's assets pursuant to the definition thereof, to reflect the aggregate net
adjustments to such Book Value as if the LLC recognized Profit or Loss equal to the respective
amount of such aggregate net adjustments immediately before the event causing such
adjustments; and
(d) Otherwise appropriately adjusted to reflect transactions of the LLC and the
Members.
"Capital Contribution" shall mean the amount of cash and the value of any other property
contributed to the LLC by a Member.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.
26
"Consent" or "Consent of the Members" shall mean the written consent or approval of
Members holding more than fifty percent (50%) of the total number of Units in the LLC then
issued and outstanding.
"D rem eciation" shall mean for each year or other period, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable for federal income tax
purposes with respect to an asset for such year or other period, except that if the Book Value of
an asset differs from its adjusted basis for federal income tax purposes at the beginning of such
year or other period, Depreciation shall be an amount that bears the same�elationship to the
Book Value of such asset as the depreciation, amortization or other cost recovery deduction
computed for tax purposes with respect to such asset for such period bears to the adjusted tax
basis for such asset, or if such asset has a zero adjusted tax basis, Depreciation shall be
determined with reference to the initial Book Value of such asset using any reasonable method
selected by Approval of the Managers, but -not less than depreciation allowable for tax purposes
for such year.
"Immediate Family" (i) with respect to any individual, means his ancestors, spouse, issue,
spouses of issue, any trust principally for the benefit of any one or more of such individuals, his
estate, and any entity beneficially owned by such individuals or trusts for their principal benefit;
and (ii) with respect to any trust, means any beneficiaries of such trust.
"Individual LLC Investment" shall mean any investment of the LLC which is specifically
identified as an "Individual LLC Investment" by the Managers.
"LLC" shall mean the limited liability company formed pursuant to the Articles and this
Agreement, as it may from time to time be constituted and amended.
"Le al 1 Representative" shall mean, with respect to any individual, a duly appointed
executor, administrator, guardian, conservator, personal representative or other legal representa-
tive appointed as a result of the death, minority or incompetency of such individual.
"Losses" shall have the meaning provided below under the heading "Profits and Losses".
" ana 'shall refer to each Person named as a Manager in this Agreement and any
Person who becomes an additional, substitute or replacement Manager as permitted by this
Agreement, in each such Person's capacity as a Manager of the LLC. "Managers" shall refer
collectively to the Persons named as Managers in this Agreement and any Person who becomes
an additional, substitute or replacement Manager as permitted by this Agreement, in each such
Person's capacity as a Manager of the LLC.
"Member" shall mean any Person named as a Member in this Agreement and any Person
who becomes an additional, substitute or replacement Member as permitted by this Agreement,
in each such Person's capacity as a Member of the LLC. "Members" shall refer collectively to
the Persons named as Members in this Agreement and any Person who becomes an additional,
27
substitute or replacement Member as permitted by this Agreement, in each such Person's
capacity as a Member of the LLC.
"Member Contributions" shall mean, with respect to a Member, the aggregate capital
contributions made by such Member to Nonspecific LLC Investments or an Individual LLC
Investment, as applicable, pursuant to the provisions of sections 2.02(a) or 2.02(b) of this
Agreement.
"Member Minimum Gain" shall mean "partner nonrecourse debt minimum gain" as that
term is defined in Regulations Section 1.704-2(i)(2).
"Member Nonrecourse Debt" shall mean "partner nonrecourse debt" or "partner
nonrecourse liability" as these terms are defined in Regulations Section 1.704-2(b)(4).
"Member Nonrecourse Deductions ' shall mean "partner nonrecourse deductions" as that
term is defined in Regulations Section 1.704-2(i)(1).
"Minimum Gain" shall have the meaning given in Regulations Section 1.704-2(d).
"Nonrecourse Deductions" shall have the meaning given in Regulations Section 1.704 -
"Nonspecific LLC Investments" shall mean all investments of the LLC which have not
been designated as Individual LLC Investments,
"Person" shall mean any natural person, partnership (whether general or limited), limited
liability company, trust, estate, association or corporation.
"Profits and Losses" shall mean, for each year or other period, an amount equal to the
LLC'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:
(a) Any income of the LLC that is exempt from federal income tax
and not otherwise taken into account in computing Profits or Losses pursuant to this provision
shall be added to such taxable income or loss;
(b) Any expenditures of the LLC described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses
pursuant to this provision, shall be subtracted from such taxable income or added to such loss;
(c) Gain or loss from a disposition of property of the LLC with respect to which
gain or loss is recognized for federal income tax purposes shall be computed by reference to the
28
Book Value of such property, rather than its adjusted tax basis;
(d) In lieu of the depreciation, amortization and other cost recovery deductions
taken into account in computing taxable income or loss, there shall be taken into account the
Depreciation on the assets for such fiscal year or other period; and
(e) Any items which are separately allocated pursuant to Sections 4.06 and/or
4.07 which otherwise would have been taken into account in calculating Profits and Losses
pursuant to the above provisions shall not be taken into account and, as the case may be, shall be
added to or deducted from such amounts so as to be not part of the calculation of the Profits or
Losses.
If the LLC's taxable income or loss for such year, as adjusted in the manner
provided above, is a positive amount, such amount shall be the LLC's Profits for such year; and
if negative, such amount shall be the LLC's Losses for such year.
"Reeulations" shall mean the Regulations promulgated under the Code, and any successor
provisions to such Regulations, as such Regulations may be amended from time to time.
"Sub -Capital Account" shall mean, with respect to any Member as of any date, the
amount of the Member's paid -in capital contributions with respect to an Individual LLC
Investment or with respect to the Nonspecific LLC Investments, as applicable, adjusted and
determined in the same manner as set forth above with respect to Capital Accounts.
"Sub -Class" shall mean, with respect to any Unit, the Individual LLC Investment (if any)
which has been designated for such Unit. If no Individual LLC Investment has been designated
for such Unit, such Unit shall have a Nonspecific Sub -Class.
"Terminating Capital Transaction" shall mean a sale or other disposition of all or
substantially all of the assets of the LLC.
"Transfer" and any grammatical variation thereof shall refer to any sale, exchange,
issuance, redemption, assignment, distribution, encumbrance, hypothecation, gift, pledge,
retirement, resignation, transfer or other withdrawal, disposition or alienation in any way as to
any interest as a Member. Transfer shall specifically, without limitation of the above, include
assignments and distributions resulting from death, incompetency, Bankruptcy, liquidation and
dissolution.
"Unit" shall mean a unit or share of interest in the LLC. The interest of each Unit in the
LLC shall be equal to one (1) divided by the total number of Units then authorized and
outstanding.
"Unrecouped Member Contributions" shall mean, with respect to a Member, the sum of
the Member Contributions made by such Member to Nonspecific LLC Investments or an
Individual LLC Investment, as applicable, from time to time, less any distributions made to such
29
Member with respect to such Nonspecific LLC Investments or an Individual LLC Investment
pursuant to Sections 4.01(a).
The definitions set forth in the Act shall be applicable, to the extent not inconsistent
herewith, to define terms not defined herein and to supplement definitions contained herein.
[Remainder of page intentionally left blank]
30
IN WITNESS WHEREOF, the Managers and the Members hereto have executed this
Agreement under seal as of the day and year first above written.
MANAGERS:
Lulte M. Lambe
BrentW. Lambert
'George A. Violin
MEMBERS:
APPLE TRUST
ro"A' & \A
By.: 1
Robert Westergard, Agent
HEARTH TRUST
a
By:
Luke M. Lambert, Agent
PLAID TRUST
By:, /'
D d W. C. Putnam, Agent
Thomas J. BornbqWer
Gerry Aubrey
Aaron B. Robertson
Gerry Aubrey
Aaron B. Robertston
31
IN WITNESS WHEREOF, the Managers and the Members hereto have executed this
Agreement under seal as of the day and year first above written.
MANAGERS:
George A. Violin
MEMBERS:
APPLE TRUST
By.
12CA
Robert Westergard, Agent
IA
HEARTH TRUST
� 4X/
By:
Lu e M. Lambert, Agent
PLAID TRUST
M
David W.C. Putnam, Agent
Thomas J. Bombddf6r
Gerry Aubrey
Aaron B. Robertson
ROSE
Gerry Aubrey
Aaron B. Robertston
31
IN WITNESS WBEREOI~, the Managers and the Members hereto have executed this
Agreement under seal as of the day and year first above written.
MANAGERS:
Luke M. Lambert
Brent W. Lambert
George A. Violin
MEMBERS:
APPLE TRUST
By:
Robert Westergard, Agent
HEARTH TRUST
By:
Luke M. Lambert, Agent
PLAID TRUST
By:
David W.C. Putnam, Agent
Thomas J. Bombardier
Ge Aubrey
Aaron B o n
ROSE TRUST
Camille Girard, Agent
Gerry Aubrey
Aaron ) -a. Ro ton
31
IN WITNESS WHEREOF, the Managers and the Members hereto have executed this
Agreement under seal as of the day and year first above written.
MANAGERS:
Thomas J. Bomb
Gerry
George A. Violin Aaron B. Robertson
MEMBERS:
APPLE TRUST
By:
Robert Westergard, Agent
HEARTH TRUST
A
By:
Luke M. Lambert, Agent
PLAID TRUST
M
David W.C. Putnam, Agent Aaron B. Robertston
01
SCHEDULE I
TO
OPERATING AGREEMENT
OF
BLUE OX DEVELOPMENT, LLC
NAME AND
ADDRESS
OF MEMBERS
Apple Trust
c/o Robert Westergard, Agent
15 Farrar Farm Road, Suite #2
Norwell, MA 02061
Hearth Trust
c/o Luke M. Lambert, Agent
15 Farrar Farm Road, Suite #2
Norwell, MA 02061
Plaid Trust
c/o David W.C. Putnam, Agent
F.L. Putnam Investment Management
Wellesley Office Park
20 Williams Street, Suite G40
Wellesley, MA 02481
Rose Trust
clo Camille Girard
6 Marina Drive
Hull, MA 02045
Gerry Aubrey
Aubrey, Dixon, Riley, Turgeon & Schultz
295 High Street
Holyoke, MA 01040
Aaron B. Robertson
553 E. Center Street
Springville, UT 84663-1550
UNITS
18.4 Class A Units (Nonspecific Sub -Class)
18.4 Class B Units (Nonspecific Sub -Class)
18.4 Class C Units (Nonspecific Sub -Class)
18.4 Class D Units (Nonspecific Sub -Class)
18.4 Class E Units (Nonspecific Sub -Class)
8.0 Class F Units (Nonspecific Sub -Class)
SCHEDULE H
TO
OPERATING AGREEMENT
OF
BLUE OX DEVELOPMENT, LLC
MANAGERS
NAME AND
ADDRESS
OF MANAGERS
Luke M. Lambert — Class A Manager
15 Farrar Farm Road, Suite #2
Norwell, MA 02061
Brent W. Lambert — Class B Manager
500 Wyndemere Way #105
Naples, FL 34105
George A. Violin — Class C Manager
16 Main Street
Dover, MA 02030
Thomas J. Bombardier — Class D Manager
3 Bayberry Lane
Provincetown, MA 02657
Gerry Aubrey — Class E Manager
Aubrey, Dixon, Riley, Turgeon & Schultz
295 High Street
Holyoke, MA 01040
Aaron B. Robertson — Class F Manager
553 E. Center Street
Springville, UT 84663-1550
f luserslanaughtoldoc.041b1ue oxloperadng-agt1.doc
FIRST AMENDMENT TO OPERATING AGREEMENT OF
BLUE OX DEVELOPMENT, LLC
AMENDMENT made as of this day of June, 2005, by and among Luke M.
Lambert, Brent W. Lambert, George A. Violin, Thomas J. Bombardier, Gerry Aubrey and
Aaron B. Robertson, in their capacity as Managers of Blue Ox Development, LLC (the "LLC")
WHEREAS, the LLC is a limited Iiability company organized under the laws of the State
of Utah pursuant to an Operating Agreement dated as of January 1, 2005, which Agreement was
modified by a Correction to Operating Agreement dated as of January 1, 2005;
WHEREAS, Section 7.01(c) of the Operating Agreement provides, in part, that an
interest as a Member of the LLC may be Transferred from time to time with the Approval of the
Managers, which may be withheld for any reason or for no reason;
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement provides, in part, that in the
event of any Transfer, there shall be filed with the LLC a duly executed and acknowledged
counterpart of the instrument effecting such Transfer;
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement further provides, in part,
that the Transferee shall execute such additional instruments as shall be reasonably required by
the LLC, and that, if and so long as such instruments are not so executed and filed, the LLC need
not recognize any such Transfer for any purpose;
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement provides, in part, that upon
the admission of a Member, such Agreement (including, without limitation, Schedule I thereto)
shall be amended appropriately to reflect the then existing names and addresses of the Members
and their respective Units;
WHEREAS, Section 7.02(b) of the Operating Agreement provides, in part, that any
Person who acquires, in any manner whatsoever, an interest in the LLC shall be deemed, by
acceptance of the acquisition thereof, to have agreed to be subject to and bound by all of the
terms, conditions and obligations of the Operating Agreement with respect to such interest, and
shall be subject to the provisions of the Operating Agreement with respect to any subsequent
Transfer of such interest;
WHEREAS, pursuant to that certain Assignment of Interest, a copy of which is attached
hereto (the "Assignment"), Hearth Trust Transferred eighteen and four -tenths (18.4) Class B
Units (Nonspecific Sub -Class) in the LLC (the "Specified Units") to Pannaway Realty
Associates (the "Assignee"), said transfer being contingent on (i) there being filed with the LLC
a duly executed and acknowledged counterpart of the Assignment, (ii) the execution by the
Assignee of such additional instruments as may be reasonably required by the LLC, (iii) the
amendment of the Operating Agreement for the LLC to appropriately reflect the then existing
names and addresses of the Members and their respective Units, (iv) the Approval of the
Managers to such Transfer, and (v) the acceptance of the acquisition of the Specified Units by the
Assignee;
WHEREAS, the Managers have Approved the transfer of eighteen and four -tenths (18.4)
Class B Units (Nonspecific Sub -Class) to Pannaway Realty Associates;
WHEREAS, the Managers desire to amend the Operating Agreement to reflect the
Transfer of the Specified Units in the LLC to the Assignee; and
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement provides, in part, that any
amendment to the Agreement required pursuant to such subparagraph (iv) shall be made solely
with the Approval of the Managers, and shall not require the Consent of the Members.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The LLC hereby: (a) acknowledges the receipt of a duly executed and
acknowledged counterpart of the Assignment, (b) confirms that no additional instruments shall
be required by the LLC in order to accomplish the Transfer described in the Assignment,
(c) confirms the Approval of the Managers to the Transfer, and (d) confirms that the LLC
recognizes the Transfer of the Specified Units to the Assignee.
2. The Assignee hereby (a) accepts the acquisition of the Specified Units, (b) agrees
that he shall be subject to and bound by all of the terms, conditions and obligations of the
Operating Agreement with respect to such Specified Units, and (c) agrees that he shall be subject
to the provisions of the Operating Agreement and of the Assignment with respect to any
subsequent Transfer of such Specified Units.
3. The below -signed Managers hereby Approve the amendment of the Operating
Agreement by the deletion of Schedule 1 thereto, and the substitution of the following new
Schedule 1, to reflect such ownership change:
"NAME AND
ADDRESS
OF MEMBERS
Apple Trust
c/o Robert Westergard, Agent
15 Farrar Farm Road, Suite #2
Norwell, MA 02061
Pannaway Realty Associates
c/o Levine, Katz, Nannis + Solomon, P.C.
First Needham Place
250 First Avenue, Suite 101
Needham, MA 02494-2805
2
UNITS
18.4 Class A Units (Nonspecific Sub -Class)
18.4 Class B Units (Nonspecific Sub -Class)
Plaid Trust
c/o David W.C. Putnam, Agent
F.L. Putnam Investment Management
Wellesley Office Park
20 Williams Street, Suite G40
Wellesley, MA 02481
Thomas J. Bombardier, M.D.
Money Purchase Pension Plan & Trust
c/o Aubrey, Suite 440
330 Whitney Avenue
Holyoke, MA 01040
Gerry Aubrey
Aubrey, Dixon & Riley
330 Whitney Avenue, Suite 440
Holyoke, MA 01040
Aaron B. Robertson
553 E. Center Street
Springville, UT 84663-1550"
18.4 Class C Units (Nonspecific Sub -Class)
18.4 Class D Units (Nonspecific Sub -Class)
18.4 Class E Units (Nonspecific Sub -Class)
8.0 Class F Units (Nonspecific Sub -Class)
Except as otherwise provided above, all of the terms and provisions of the Operating
Agreement shall remain in full force and effect, and the parties hereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written.
MANAGERS:
t r �
[Ake M Lam ert
`�
Brent'W. Lambert
Gy0ye A. Violin
ACCEPTED AND AGREED TO BY:
PANNAWAY REALTY ASSOCIATES
By: r'=�
Bruce Levine, &neral Partner
r:kusers`anaughloldoc.051blue ox\lstamd-operagml•pannaway.doc
Thomas . Bombardier
AaronNI R' bertson
SECOND AMENDMENT TO OPERATING AGREEMENT OF
BLUE OX DEVELOPMENT, LLC
AMENDMENT made as of this day of August, 2005, by and among
Luke M. Lambert, Rebecca W. Lambert, George A. Violin, Camille Girard, Gerry Aubrey and
Aaron B. Robertson, in their capacity as Managers of Blue Ox Development, LLC (the "LLC").
WHEREAS, the LLC is a limited liability company organized under the laws of the State
of Utah pursuant to an Operating Agreement dated as of January 1, 2005, which Agreement was
modified by a Correction to Operating Agreement dated as of January 1, 2005;:
WHEREAS, Brent W. Lambert has resigned as Class B Manager of the; LLC, and
Rebecca W. Lambert has been appointed as the successor Class B Manager; t
WHEREAS, Thomas J. Bombardier has resigned as Class D Manager of the LLC, and
Camille Girard has been appointed as the successor Class D Manager;
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement provides, in part, that in the
event of any Transfer (including any issuance of new or additional Units by the LLC), there shall
be filed with the LLC a duly executed and acknowledged counterpart of the instrument effecting
such Transfer;
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement further provides, in part,
that the Transferee shall execute such additional instruments as shall be reasonably required by
the LLC, and that, if and so long as such instruments are not so executed and filed, the LLC need
not recognize any such Transfer for any purpose;
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement provides, in part, that upon
the admission or withdrawal of a Member, such Agreement (including, without limitation,
Schedule I and Schedule II thereto) shall be amended appropriately to reflect the then existing
names and addresses of the Members and their respective Units and the names and addresses of
the Managers;
WHEREAS, Section 7.02(b) of the Operating Agreement provides, in part, that any
Person who acquires, in any manner whatsoever, an interest in the LLC shall be deemed, by
acceptance of the acquisition thereof, to have agreed to be subject to and bound by all of the
terms, conditions and obligations of the Operating Agreement with respect to such interest, and
shall be subject to the provisions of the Operating Agreement with respect to any subsequent
Transfer of such interest;
WHEREAS, pursuant to that certain Unit Redemption Agreement, a copy of which is
attached hereto (the "Redemption"), the LLC redeemed eighteen and four -tenths (18.4) Class B
Units (Nonspecific Sub -Class) in the LLC (the "Redeemed Units") from Pannaway Realty
Associates ("Pannawayl;
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Subscription"), the LLC issued eighteen and four -tenths (18.4) Class B
Units (Nonspecific Sub -Class) in the LLC (the "New Units") to the Roth IIIA for the benefit of
Brent W_ Lambert ("Lambert IRA");
WHEREAS, pursuant to the Subscription, the Lambert IRA (i) accepted the acquisition
of the New Units, (ii) agreed that it shall be subject to and bound by all of the terms, conditions
and obligations of the Operating Agreement with respect to such New Units, aid (iii) agreed that
it shall be subject to the provisions of the Operating Agreement with respect to�any subsequent
transfer of such New Units.
WHEREAS, the Managers have Approved (i) the redemption of the Redeemed Units
from Pannaway Realty Associates, and (ii) the issuance of the New Units to the Lambert IRA;
WHEREAS, the Managers desire to amend the Operating Agreement t reflect the
Transfer of the Redeemed Units in the LLC from Pannaway and the Transfer of the New Units in
the LLC to the Lambert IRA;
k
WHEREAS, the Managers desire to further amend the Operating Agreement to reflect the
appointment of Rebecca W. Lambert as the new Class B Manager and the appdintrnent of
Camille Girard as the .new Class D Manager; and
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement provides, in part, that any
amendment to the Agreement required pursuant to such subparagraph (iv) shall be made solely
with the Approval of the Managers, and shall not require the Consent of the M&tubers.
NOW, THEREFORE, in consideration, of the mutual agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The LLC hereby: (a) acknowledges the receipt of a duly executed and
acknowledged counterpart of the Redemption, (b) confirms that no additional instruments shall
be required by the LLC in order to accomplish the Transfer described in the Redemption,
(c) confirms the Approval of the Managers to the Redemption, and (d) confirms that the LLC
recognizes the Transfer of the Redeemed Units to the LLC.
2. T he LLC hereby: (a) acknowledges the receipt of a duly executed and
acknowledged counterpart of the Subscription, (b) confirms that no additional instruments shall
be required by the LLC in order to accomplish the Transfer described in the Subscription,
(c) confirms the Approval of the Managers to the Subscription, and (d) confirms that the LLC
recognizes the Transfer of the New Units to the Lambert IIIA.
3. The below -signed Managers hereby Approve the amendment of the Operating
Agreement by the deletion. of Schedule I thereto, and the substitution of the following new
Schedule 1, to reflect such ownership change:
"NAME AND
ADDRESS
OF MEMBERS
Apple Trust
c/o Robert Westergard, Agent
124 Washington Street, Suite #4
Norwell, MA 02061
Roth IRA f/b/o Brent W. Lambert
c/o Fisery ISS Co.
717 17h Street Suite 1700
Denver, CO 80202-3331
Plaid Trust
c/o David W.C. Putnam, Agent
F.L. Putnam Investment Management
Wellesley Office Park
20 Williams Street, Suite G40
Wellesley, MA 02481
Thomas J. Bombardier, M.D.
Money Purchase Pension Plan & Trust
c/o Aubrey, Suite 440
330 Whitney Avenue
Holyoke, MA 01040
Gerry Aubrey
Aubrey, Dixon & Riley
330 Whitney Avenue, Suite 440
Holyoke, MA 01040
Aaron B. Robertson
553 E. Center Street
Springville, UT 84663-1550"
UNITS
18.4 Class A Units (Nonspecific Sub -Class)
18.4 Class B Units (Nonspecific Sub -Class)
18.4 Class C Units (Nonspecific Sub -Class)
18.4 Class D Units (Nonspecific Sub -Class)
18.4 Class E Units (Nonspecific Sub -Class)
8.0 Class F Units (Nonspecific Sub -Class)
4. The below -signed Managers hereby Approve the amendment of the Operating
Agreement by the deletion of Schedule II thereto, and the substitution of the following new
Schedule II, to reflect such ownership change:
" NAMEAND
ADDRESS
OF MANAGERS
Luke M. Lambert — Class A Manager
124 Washington Street, Suite #4
Norwell, MA 02061
Rebecca W. Lambert— Class B Manager
c/o Woodruff Institute, 11181 Health Park Blvd.
Naples, FL 34110
Gl-Ava-05 04:02pm From-LOURIE & CUTLER,PC
George A. Violin -- Class C Manager
16 Main Street
Dover, MA 02030
Camille Girard -- Class D Manager
6 Marina Drive
Hull, MA 02045-1316
Garry Aubrey — Class E Manager
Aubrey, Dixon, Riley, Turgeon & Soholtz
295 High Sued
Holyoke, MA 01040
81T-742-5720 T-407 P.08/00 F-881
Aaron E. Robertson — Gass F Manager
553 1& Center Street
Springville, UT 84663-1550"
Except as otherwise provided above, all of the terms and provisions of t�a Operating
Agreement sball remain in full force and effect, and the parties hereto agree to be bound thereby.
TN WITNESS WHEREOF, the parties hereto have executed this Amendmment to the
Operating Agreement as of the day and year first above written,
Rebecca W. Lambert
George A. Violin
f;w-'1L aW4--Qm'toozl2nCamd.opengmid-
Aaron B. Robertson
4
George A. Violin — Class C Manager
16 Main Street
Dover, MA 02030
Camille Girard Class D Manager
6 Marina Drive
Hull, MA 02045-1316
Gerry Aubrey — Class F Manager
Aubrey, Dixon, Riley, Turgeon & Schultz
295 High Street
Holyoke, MA 01040
Aaron B. Robertson — Class F Manager
553 B. Center Street
Springville, UT 84663-1550"
E
Except as otherwise provided above, all of the terms and provisions of tie Operating
Agreement shall remain in full force and effect, and the parties hereto agree to �e bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written.
MANAGERS:
Luke Lambert
KL�
Rebecca W. Lambert
Camille Girard
Gerry Aubrey
George A. Violin Aaron B. Robertson
4
vi-nUK-UQ L9-VDFim rivn-wumic a LUiLert,rt, o f -i4[ -o LU 1-4UU Y UV/UV F -Ob
GcoTge A. Violin - Class C Manager
16 Mam Street
Dover, MA 02430
Camille GJmi4 — Class D Manager
5 Marina Drive
FIull, MA 02045-;316
Gerry Aubrey - CIass fs Manager
Aubrey. Dixon, Riley, Targeon & Scholtz
295 High Street
Holyoke, MA 01640
Aaron B. Robefton — Class F Manager
553 E. Center Street.
Springville, UT 84663-1550"
Except as otherwise provided above, all of the terms and provisions of tie Operating
Agreement shall remain in full force and erect, and the parties Kereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have excowed this Amendment to the
Operating Agreement as of the day and year first above wzztten,
MANAGERS:
Luke M. Lambert
Rebecca W. Lambert
Gc crge A. Violin
fws�+��u�Ighwldoc,0ilbnw ar'.2otl�cid.apangm�.doc
Camille Girard
Gerry Aubrey
Aaron 13, Robertson
George A. Violin — Class C Manager
16 Main Street
Dover, MA 02030
Camille Girard — Class D Manager
6 Marina Drive
Hull, MA 02045-1316
Gerry Aubrey — Class E Manager
Aubrey, Dixon, Riley, Turgeon & Schultz
295 High Street
Holyoke, MA 01040
Aaron B. Robertson -- Class F Manager
553 E. Center Street
Springville, UT 84663-1550"
Except as otherwise provided above, all of the terms and provisions of the Operating
Agreement shall remain in full force and effect, and the parties hereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written.
MANAGERS:
Luke M. Lambert
Rebecca W. Lambert
George A. Violin
ENj= nlenaughtuldoc,0A1ue mcl2ndamd-operagmtdx
Camille Girard
Gerry Aub y
Aaron . R rtson
4
Tw Amy Haughton Page 4 oT 4 2005-08-04 16:59:10 (GMT) From: Aaron Robertson
George A Violin — Class C Manager
16 Maui Shad
Dover, MA 02030
Camille Girard — Class D Manager
6 Marina Drive
Hull, MA 02045-1316
Gerry Aubrey — Class E Manager
Aubrey, Dixon, Riley, Turgeou & Schultz
295 High Strut
Holyoke, MA 01040
r
Aaron B. Robertson — Class F Manager
553 E. Center Street '
Springville, Ur 84663-1550"
Except as otherwise provided above, allof the terms and provisions of the Operating
Agreement shall remain in full £once and effect, and the parties hereto agree to be bound thereby.
IN WTINESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written.
MANAGERS:
Luke M. Lambert
Rebecca W. Lambert
George A. Violin
f,-U�m%dv—W%Isa CiUminm&operag Um
Camille Girard
GTu
f 1\i 1*1 1
4
01-Aua-06 0411po FrwIOURI a CUTLER,PC
George A. Violin » Cies C Maaagar
16 Main street
Davey. MA 02030
Camille Cilrard- Clea D Manager
Hull, -MA 0200-1316
Gerry Aubrey - Clau E Metlager
Aubrey, Dixon, Rilsy, Tusgeon & .Selwltx
295 High $trod
Rolyokw, MA 03 040
A&= B. Robssu=- Class F Manager
553 >. Center sweet
Springville, UT 84663-1550"
slT-T4Z•6'ZD
T-401 P.00106 F-161
Except a9 otherwise provide! Above, all of the tams and provisions of tete Operating
Agreement shall mnain iu full force and effect, and tho patsies hereto agree to >� a bound thereby.
M WITNESS WHEREOF, the parties hereto havo executed fhis AmeudtAcnr to the
Operating Agreement as of the day acid year first above vninsn.
Luke M. Lambert
Rebecca W_ beet
C3c.rge A. Violin
fw,r�+naaaY�roldae, o]�b+w mdlse.mi•op. eor
Camille Girard
Gerry Aubrey
Aaron B, Rob ectsoa
4
THIRD AMENDMENT TO OPERATING AGREEMENT OF
BLUE OX DEVELOPMENT, LLC
AMENDMENT made as of this day of , 2006, by and among
Robert Westergard, Rebecca W. Lambert, George A. Violin, Camille Girard, Gerry Aubrey and
Aaron B. Robertson, in their capacity as Managers of Blue Ox Development, LLC (the "LLC").
WHEREAS, the LLC is a limited liability company organized under the laws of the State
of Utah pursuant to an Operating Agreement dated as of January 1, 2005, which Agreement was
modified by a Correction to Operating Agreement dated as of January 1, 2005, a First
Amendment dated June , 2005, and a Second Amendment dated August 2005.
WHEREAS, Luke M. Lambert has resigned as Class A Manager of the LLC, and Robert
Westergard has been appointed as the successor Class A Manager.
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement provides, in part, that in the
event of any Transfer (including any issuance of new or additional Units by the LLC), there shall
be filed with the LLC a duly executed and acknowledged counterpart of the instrument effecting
such Transfer.
WHEREAS, Section 7.02(a)(iii) of the Operating Agreement further provides, in part,
that the Transferee shall execute such additional instruments as shall be reasonably required by
the LLC, and that, if and so long as such instruments are not so executed and filed, the LLC need
not recognize any such Transfer for any purpose.
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement provides, in part, that upon
the admission or withdrawal of a Member, such Agreement (including, without limitation,
Schedule I and Schedule II thereto) shall be amended appropriately to reflect the then existing
names and addresses of the Members and their respective Units and the names and addresses of
the Managers.
WHEREAS, Section 7.02(b) of the Operating Agreement provides, in part, that any
Person who acquires, in any manner whatsoever, an interest in the LLC shall be deemed, by
acceptance of the acquisition thereof, to have agreed to be subject to and bound by all of the
terms, conditions and obligations of the Operating Agreement with respect to such interest, and
shall be subject to the provisions of the Operating Agreement with respect to any subsequent
Transfer of such interest.
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Lambert Subscription"), the LLC issued Five and six -tenths (5.466) Class A
Units (Nonspecific Sub -Class) in the LLC (the "Lambert Units") to the IRA for the benefit of
Luke M. Lambert ("Lambert IRA").
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Apple Trust -Class A Subscription"), the LLC issued Two and four -tenths
(2.534) Class A Units (Nonspecific Sub -Class) in the LLC (the "Apple Units") to the Apple
Trust.
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "BrentIRA-Class B Subscription"), the LLC issued Eight (8) Class B Units
(Nonspecific Sub -Class) in the LLC (the "New B Units") to the Roth IRA for the benefit of Brent
W. Lambert ("BWL").
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Plaid Trust -Class C Subscription"), the LLC issued Eight (8) Class C Units
(Nonspecific Sub -Class) in the LLC (the "New C Units") to the Plaid Trust.
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Rose Subscription"), the LLC issued( ) Class D Units
(Nonspecific Sub -Class) in the LLC (the "Rose Units") to the Rose Trust.
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "TJB-Class D Subscription"), the LLC issued Class
D Units (Nonspecific Sub-CIass) in the LLC (the "New D Units") to the Thomas J. Bombardier,
M.D. Money Purchase Plan and Trust ("TJB Trust").
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Aubrey -Class E Subscription"), the LLC issued Eight (8) Class E Units
(Nonspecific Sub -Class) in the LLC (the "New E Units") to Gerry Aubrey ("Aubrey").
WHEREAS, pursuant to that certain Unit Subscription Agreement, a copy of which is
attached hereto (the "Robertson -Class F Subscription") the LLC issued Three and five -tenths
(3.5) Class F Units (Nonspecific Sub -Class) in the LLC (the "New F Units") to Aaron B.
Robertson ("Robertson").
Collectively, the Lambert Subscription, the Apple Trust -Class A Subscription, the
BrentIRA-Class B Subscription, the Plaid Trust -Class C Subscription, the Rose Subscription, the
TJB-Glass D Subscription, the Aubrey -Class E Subscription, and the Robertson -Class F
Subscription are referred to herein as the "New Subscriptions." Each of the Lambert IRA, the
Apple Trust, BWL, the Plaid Trust, the Rose Trust, the TJB Trust, Aubrey and Robertson are
referred to herein as a "Subscriber," and, collectively, as the "Subscribers." Collectively, the
Lambert Units, the Apple Units, the New B Units, the New C Units, the Rose Units, the New D
Units, the New E Units, and the New F Units are referred to herein as the "New Units."
WHEREAS, pursuant to the New Subscriptions, each Subsciber (i) accepted the
acquisition of his or its New Units, (ii) agreed that he or it shall be subject to and bound by all of
the terms, conditions and obligations of the Operating Agreement with respect to such New
Units, and (iii) agreed that he or it shall be subject to the provisions of the Operating Agreement
with respect to any subsequent transfer of such New Units.
" NAME AND
ADDRESS
OF MANAGERS
Robert Westergard — Class A Manager
124 Washington Street, Suite 4
Norwell, MA 02061
Rebecca W. Lambert — Class B Manager
c/o Woodruff Institute, l 1181 Health Park Blvd.
Naples, FL 34110
George A. Violin — Class C Manager
16 Main Street
Dover, MA 02030
Camille Girard — Class D Manager
6 Marina Drive
Hull, MA 02045-1316
Gerry Aubrey — Class E Manager
Aubrey, Dixon, Riley, Turgeon & Schultz
295 High Street
Holyoke, MA 01040
Aaron B. Robertson — Class F Manager
553 E. Center Street
Springville, UT 84663-1550"
Except as otherwise provided above, all of the terms and provisions of the Operating
Agreement shall remain in full force and effect, and the parties hereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written.
MANAGERS:
Robert Westergard
Rebecca W. Lambert
George A. Violin
ACCEPTED AND AGREED TO BY:
APPLE TRUST
By:
Robert Westergard, Agent
ROTH IRA FB/O BRENT
W. LAMBERT
Bv:
Hereunto duly authorized
PLAID TRUST
By:
David W.C. Putnam, Agent
IRA FB/O LUKE M. LAMBERT
By:
Hereunto duly authorized
"06t*wa. 1.d.
Camille Girard
Gerry Aubrey
Aaron B. Robertson
ROSE TRUST
By:
Camille Girard, Agent
Gerry Aubrey
Aaron B. Robertston
THOMAS J. BOMBARDIER, M.D.
MONEY PURCHASE PENSION PLAN
& TRUST
By:
Hereunto duly authorized
M
FOURTH AMENDMENT TO OPERATING AGREEMENT OF
BLUE OX DEVELOPMENT, LLC
AMENDMENT made as of this day of , 2008, by and among
Robert Westergard, Rebecca W. Lambert, George A. Violin, Camille Girard, Gerry Aubrey and
Aaron B. Robertson, in their capacity as Managers of Blue Ox Development, LLC (the "LLC").
WHEREAS, the LLC is a limited liability company organized under the laws of the State
of Utah pursuant to an Operating Agreement dated as of January 1, 2005, which Agreement was
modified by a Correction to Operating Agreement dated as of January 1, 2005, a First
Amendment dated June 2005, a Second Amendment dated August 2005 and a Third
Amendment dated , 2006 (collectively, as amended, the "Operating Agreement").
Terms not defined herein shall have the meanings ascribed to them in the Operating Agreement.
WHEREAS, Section 7.02(a)(iv) of the Operating Agreement currently provides, in part,
that upon the admission or withdrawal of a Member, (A) such Agreement (including, without
limitation Schedule I and Schedule II thereto) shall be amended appropriately to reflect the then
existing names and addresses of the Members and their respective Units and the names and
addresses of the Managers, and (B) the Articles shall be amended appropriately to reflect the then
existing names and addresses of the Members and the Managers.
WHEREAS, for administrative ease, the Managers desire to amend Section 7.02(a)(iv)
of the Operating Agreement to require that the admission or withdrawal of a Member be reflected
in the records of the LLC as required by Section 48-2c-112 of the Utah Limited Liability
Company Act.
WHEREAS, Section 9.08 of the Operating Agreement provides that the Operating
Agreement may be amended or modified only with the Approval of the Managers and the
Consent of the Members.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree that Subparagraph (iv) of Subsection (a) of Section 7.02
of the Operating Agreement is hereby deleted and rendered of no further effect, and the following
new Subparagraph (iv) of Subsection (a) of Section 7.02 substituted therefore:
"(iv) Upon the admission or withdrawal of a Member or Manager, the
Managers shall amend the records of the LLC to reflect the admission or withdrawal of
such Member or Manager in order to maintain a complete list of the Members and
Managers of the LLC as required by Section 48-2c-112 of the Utah Limited Liability
Company Act."
Except as otherwise provided above, all of the terms and provisions of the Operating
Agreement shall remain in full force and effect, and the parties hereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written. This Amendment may be
executed in counterparts, which taken together will be deemed an original.
MANAGERS:
Robert Westergard
Rebecca W. Lambert
George A. Violin
ACCEPTED AND AGREED TO BY:
APPLE TRUST
Robert Westergard, Agent
ROTH IRA FB/O BRENT
W. LAMBERT
Hereunto duly authorized
PLAID TRUST
David W.C. Putnam, Agent
Camille Girard
Gerry Aubrey
Aaron B. Robertson
ROSE TRUST
Camille Girard, Agent
Gerry Aubrey
Aaron B. Robertston
2
PANNAWAY REALTY ASSOCIATES
Bruce Levine, General Partner
IRA F/B/O LUKE M. LAMBERT
Hereunto duly authorized
THOMAS J. BOMBARDIER, M.D.
MONEY PURCHASE PENSION PLAN
& TRUST
0
Hereunto duly authorized
c do wa is and scttmp pucDa kcal seumgs temporary Lamm fiks o1k16 9zhX04-Ahaw W-epk doc
FIFTH AMENDMENT TO OPERATING AGREEMENT OF
BLUE OX DEVELOPMENT LL
AMENDMENT made effective as of the 29th day of September, 2008, by and among
Robert. Westergard, Rebecca W. Lambert, George A. Violin, Camille Girard, Gerry Aubrey and
Aaron B. Robertson, in their capacity as Managers of Blue Ox Development, LLC (the "LLC").
WHEREAS, the LLC is a limited liability company organized under the laws of the State
of Utah pursuant to an Operating Agreement dated as of January 1, 2005, which Agreement was
modified by a Correction to Operating Agreement dated as of January 1, 2005, a First
Amendment dated June , 2005, a Second Amendment dated August _, 2005, a Third
Amendment dated October 3, 2006 and a Fourth Amendment dated lune 16, 2008 (collectively,
as amended, the "Operating Agreement"). Terms not defined herein shall have the meanings
ascribed to them in the Operating Agreement.
WHEREAS, Section 9.08 of the Operating Agreement provides that the Operating
Agreement may be amended or modified only with the Approval of the Managers and the
Consent of the Members.
WHEREAS, under the Operating Agreement; "Approval of the Managers" means the
written consent or approval of Managers representing more than fifty percent (50%) of the total
number of Units in the LLC then issued and outstanding.
WHEREAS, under the Operating Agreement, "Consent of the Members" means the
written consent or approval of Members holding more than fifty percent (50%) of the total
number of Units in the LLC then issued and outstanding.
WHEREAS, the undersigned wish to amend the Operating Agreement to provide that the
LLC shall be operated at all times so as to qualify as either a "real estate operating company" or a
"venture capital operating company", as defined by Department of Labor Regulations Section
2510.3-101(d) and (e).
NOW, THEREFORE, the undersigned agree to add the following new Section 1.05 to the
Operating Agreement:
"1.05 Operations. Beginning effective as of September 29, 2008: (i) the
Managers are authorized and directed to take all actions that they deem necessary to
qualify the LLC as either a "real estate operating company" or a `venture capital
operating company", as defined by Department of Labor Regulations Section 2510.3-
101(d) and (e), and (ii) the Managers are further directed to maintain such qualification at
all times thereafter.
Except as otherwise provided above, all of the terms and provisions of the Operating
Agreement shall remain in full force and effect, and the parties hereto agree to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written. This Amendment maybe
executed in counterparts, which taken together will be deemed an original.
MANAGERS:
Robert Westergard
Rebecca W Lambert
George A. Violin
ACCEPTED AND AGREED TO BY:
APPLE TRUST
ROSE TR
B G""
y By:
obert Westergard, Agent c_
ROTH IRA FB/O BRENT
W. LAMBERT
By:
Hereunto duly authorized
PLAID TRUST
By:
David W.C. Putnam, Agent
Gerry A Jb ey
irard, Agent
AaronB. Ston
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written. This Amendment may be
executed in counterparts, which taken together will be deemed an original.
MANAGERS:
Robe Westergard
2('r?;
ebecca W. Lambert
George A. Violin
ACCEPTED AND AGREED TO BY:
APPLE TRUST
By:
Robert Westergard, Agent
ROTH IRA F/B/O BRENT
W. LAMBERT
By:
Hereunto duly authorized
PLAID TRUST
By:
David W.C. Putnam, Agent
Camille Girard
Gerry Aubrey
Aaron B. R n
ROSE TRUST
By:
Camille Girard, Agent
Gerry Aubrey
Aaron B. ton
2
rN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Operating Agreement as of the day and year first above written. This Arnendmernt may be
executed in counterparts, which taken together will he deemed an original.
MANAGERS:
Robert Westergard
Rebecca W. Lambert
George . Violin
ACCEPTED AND AGREED TO BY:
APPLE TRUST
By:
Robert Westergard, Agent
ROTH IRA FB/0 BRENT
W. LAMBERT
By:
Hereunto duly authorized
PLAID TRUST
By:
David W.C. Putnam, Agent
Camille Girard
Gerry Au4Rn-
ROSETRUST
Aaron B.
By:
Camille Girard, Agent
Gerry Aubrey
t k1
Aaron B.tston
THOMAS J. BOMBARDIER, M.D.
MONEY PURCHASE PENSION PLAN
& TRUST
Hereunto duly authorized
IRA F/B/O LUKE M. LAMBERT
By:
Hereunto duly authorized
o:4doc Lihr00rbu&r.Vg691 dos
THOMAS J. BOMBARDIER, M.D.
MONEY PURCHASE PENSION PLAN
& TRUST
Hereunto duly authori�
IRA FB/O LUKE M. LAMBERT
By:
Hereunto dul authorized
VO& minaR-Dit7' .mxJ ^..t .. ' B uwz