OPERATING AGREEMENT OF
SOUTH TRACY INDUSTRIAL PARK, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
In accordance with the Xxxxxxx-Xxxxxx Limited Liability
Company Act and subject to the Articles of Organization, which were
filed on July 28, 1999 with the Secretary of State of California,
the members of SOUTH XXXXX INDUSTRIAL PARK, LLC, listed on the
signature page, make the following Agreement on August17, 1999
regarding the conduct of the business and affairs of SOUTH XXXXX
INDUSTRIAL PARK, LLC, a California limited liability company
("Company"):
ARTICLE 1. DEFINITION OF TERMS
1.01 When used in this Agreement, the following terms have the
meanings set forth here:
(a) "Act" means California's Xxxxxxx-Xxxxxx Limited
Liability Company Act, as set forth in Corporations Code Title 2.5.
(b) "Agreement" means this operating agreement, as
originally executed and as amended from time to time.
(c) "Articles" means the Articles of Organization for
the Company as originally filed with the Secretary of State and as
amended from time to time.
(d) "Available cash" of the Company means all cash funds
of the Company on hand from time to time (other than cash funds
obtained as contributions to the capital of the Company by the
members and cash funds obtained from loans to the Company), after
(1) payment of all operating expenses of the Company as of such
time, (2) provision for payment of all outstanding and unpaid
current obligations of the Company as of such time, and (3)
provision for a working capital reserve, as defined below.
(e) "Bankruptcy" means, and a member is deemed a
"Bankrupt Member" on, (1) the entry of a decree or order for relief
against the Member by a court of competent jurisdiction in any
involuntary case brought against the Member under any bankruptcy,
insolvency, or similar law ("Debtor Relief Laws") that generally
affect the rights of creditors and relief of debtors; (2) the
appointment of a receiver, liquidator, assignee, custodian,
conservator, trustee or similar agent under Debtor Relief Laws for
the Member or for any substantial portion of the Member's assets;
(3) the issuance of an order for the winding up and/or liquidation
of the Member's affairs; (4) the filing of a petition in any
involuntary bankruptcy case that remains undismissed or suspended
under the federal bankruptcy laws; (5) the commencement by a Member
of voluntary case under any applicable Debtor Relief Law; (6) the
written admission of a Member that the Member is unable to pay the
Member's debts as they become due; (7) the consent by any Member to
the entry of an order for relief in any involuntary case, or to the
appointment of (or the taking of possession by) a receiver,
liquidator, assignee, custodian, conservator, trustee or similar
agent under Debtor Relief Law for the Member or for any substantial
portion of the Member's assets; or (8) the making by a Member of
any general assignment for the benefit of creditors.
(f) "Capital Account" means the individual accounts
established and maintained pursuant to Paragraph 3.04.
(g) "Capital Contribution" means the total value of cash
and agreed fair market value of property and/or services
contributed and/or agreed to be contributed to the Company by each
member, as shown in Exhibit A, as the same may be amended from time
to time.
(h) "Code" means the Internal Revenue Code of 1986, as
amended. All references in this Agreement to sections of the Code
include any corresponding provision or provisions of succeeding
law.
(i) "Company" means SOUTH XXXXX INDUSTRIAL PARK, LLC, a
California limited liability company.
(j) "Entity" means any association, corporation, general
partnership, limited partnership, limited liability company, joint
stock association, joint venture, firm, trust, business trust,
cooperative, and foreign association of like structure.
(k) "Interest" in the Company means the entire ownership
interest of a member in the Company at any particular time,
including the right of the member to any and all benefits to which
a Member may be entitled as provided in this Agreement and under
the Act, together with the obligations of the member to comply with
all of the terms and provisions of this Agreement.
(l) "Manager" means an individual appointed by consent
of all Members and having the authority as set forth in this
Agreement.
(m) "Member" means each person who is an original
signatory to the Agreement and has been admitted to the Company as
a Member, or who is an assignee that has been admitted to the
Company as a Member that has not resigned, withdrawn, or been
dissolved.
(n) "Percentage Interests" of a Member means the
percentage of the Member set forth opposite the name of the Member
in Exhibit A attached to this Agreement, as the percentage may be
adjusted from time to time pursuant to the terms of this Agreement.
(o) "Principal office" means the office of the agent of
this Company as shown in its Articles.
(p) "Pro Rata Part" means the proportion that a
percentage interest of a Member bears to the aggregate interest in
the Company of all Members.
(q) "Share" refers to an interest in the Company
representing a contribution to capital. Whenever reference is made
to "percentage interest," a share may be converted into the same by
dividing a Member's number of shares by the total of all shares
outstanding.
(r) "Substitute Member" means any individual or entity
that is admitted into membership on the written consent of all
Members in accordance with Paragraph 3.11.
(s) "Tax Matters Member" means the Member chosen
pursuant to Internal Revenue Code Section 6231(a)(7) to deal with
the Internal Revenue Service on tax matters.
(t) Project means the purchase of lots 2 through 5 and
14 through 18, which is located in the City of Xxxxx, County of San
Xxxxxxx, State of California, and is preliminarily described in
Exhibit B, with an option to purchase lots 6 through 13, which is
located in the City of Xxxxx, County of San Xxxxxxx, State of
California, and is preliminarily described in Exhibit C, together
with all buildings and improvements to be constructed thereon (the
Buildings).
(u) Construction Manager means Westco Community
Builders, Inc., a California corporation. Construction Manager
shall perform all construction functions including supervision,
coordination, budgeting, the hiring of subcontractors and
consultants and other related services to achieve the construction
of the Project.
(v) Marketing Manager means Westco Community Builders,
Inc., a California corporation. The Marketing Manager shall be
responsible for making all necessary arrangements for the marketing
of the Project and its completed Buildings, including those
arrangements necessary for the sale or lease of the Buildings.
(w) Management Fee means a fee of ten thousand dollars
($10,000) per month to be paid to Member Westco Community Builders,
Inc. for its performance of the services of Construction Manager
and Marketing Manager.
(x) Financing means all loans, if any, procured by the
Company for the purpose of completing the Project, including any
construction loan.
(y) Approved Costs means all costs, including Financing
and the Management Fee, incurred in carrying out the Project.
Approved Costs include, but are not limited to: hard and soft
costs, developments costs, design and engineering costs, marketing
costs, labor costs, supplier costs, legal, administrative and
accounting costs attributable to the Project, salaries of the
project xxxxxxx, permit costs, site trailer costs, materials costs,
and insurance costs.
(z) Equity shall mean the amount of capital, in the form
of cash, supplied to the Company by a Member.
(aa) Preferred Return shall mean that twelve percent
(12%) per annum return on the amount of Equity invested by a
Member.
ARTICLE 2. ORGANIZATION OF COMPANY
2.01 Formation of Company. The Members have formed a limited
liability company under the Act by properly executing and filing
the Articles and executing this Agreement. The rights, duties, and
liabilities of the Members and the Managers are determined pursuant
to the Act, the Articles, and this Agreement.
2.02 Company Name. The name of the Company is SOUTH XXXXX
INDUSTRIAL PARK, LLC. The Company will transact business under
that name. However, the Managers may conduct business under
another name if the Managers think it advisable, provided that the
Managers comply with the Act and any other applicable laws, file
fictitious name certificates and the like, and file any necessary
amendments.
2.03 Company Purpose. The purpose of the Company is to engage
in any business activity permitted by the Act.
2.04 Duration of Company and Agreement. The duration of the
Company and this Agreement is until December 31, 2049, as provided
in the Articles, unless the Company is dissolved earlier pursuant
to Article 25.
ARTICLE 3. MEMBERS AND MEMBERSHIP INTERESTS
3.01 Names, Addresses, and Initial Capital Contributions of
Members. Members, their respective addresses, their initial
Capital Contributions to the Company, and their respective
percentage interests in the Company are set forth on Exhibit A,
attached to this Agreement and made a part of it. Each Member
agrees to make the initial contribution set out in Exhibit A within
thirty (30) days of the execution of this Agreement.
(a) In accordance with the foregoing Section 3.01, and
in order to satisfy its required Capital Contribution, the Members,
and each of them, hereby consent and agree that Member Dover
Investments Corp. shall satisfy its capital contribution
requirements by supplying the Equity for the purchase of lots
comprising the Project, the construction of the Buildings thereon,
and the subsequent sale thereof.
(b) In accordance with the foregoing Section 3.01, and
in order to fully satisfy its required Capital Contribution, the
Members, and each of them, hereby consent and agree that Member
Westco Community Builders, Inc. shall satisfy its capital
contribution requirements by performing the duties of Construction
Manager and Marketing Manager for the Project.
3.02 Future Contributions. Other than those Capital
Contributions necessary to satisfy each Member's required capital
contributions specified in Section 3.01, no Member shall be
required to make any additional contributions to the to the capital
of the Company. Additional contributions to the capital of the
Company shall be made only with the unanimous consent of the
Members. Except as provided in this Agreement, no Member may
withdraw its Capital Contributions.
3.03 Member Loans or Services. Loans or services by any
Member to the Company may not be considered to be contribution to
the capital of the Company.
3.04 Capital and Capital Accounts.
(a) The initial Capital Contribution of each Member is
as set forth in Exhibit A. No interest may be paid on any other
Capital Contribution.
(b) The Company will establish and maintain individual
Capital Accounts on behalf of each Member, including any additional
or Substituted Member who shall subsequently receive any interest
in the Company. The Capital Account of each Member consists of (1)
the amount of cash the Member has contributed to the Company, (2)
less any liabilities assumed by the Company or to which the
property is subject, plus (3) the amount of profits or income
(including tax-exempt income) allocated to the Member, less (4) the
amount of losses and deductions allocated to the Member, less (5)
the amount of all cash distributed to the Member, less (6) the fair
market value of any property distributed to the Member, net of any
liability assumed by the Member or to which the property is
subject, less (7) the Member's share of any other expenditures that
are not deductible by the Company for federal income tax purposes
or that are not allowable as additions to the basis of Company
property, and (8) subject to any other adjustments that may be
required under the Code. The Capital Account of a Member is not
affected by any adjustments to basis made pursuant to Section 743
of the Internal Revenue Code, but must be adjusted with respect to
adjustments to basis made pursuant to Section 734 of the Internal
Revenue Code.
(c) No Member has the right to withdraw his or her
Capital Contribution or to demand and receive property of the
Company or any distribution in return for his or her Capital
Contribution, except as may be specifically provided in this
Agreement or required by law. No Member may receive out of Company
property any part of his, her, or its Capital Contribution until
(1) all liabilities of the Company, except liabilities to the
Members on account of their loans, have been paid or sufficient
Company property remains to pay them, and (2) all Members consent,
unless the return of the contributions to capital is rightfully
demanded as provided in the Act.
(d) Subject to the provisions of subparagraph (c) of
this paragraph, a Member may rightfully demand the return of his or
her or its Capital Contribution (1) on the dissolution of the
Company, or (2) as may otherwise be provided in the Act. A Member
may demand and receive only cash in return for the Member's Capital
Contribution.
3.05 Admission of Additional Capital. Additional capital may
be contributed to the Company, but only on the written consent of
all Members.
3.06 Admission of Additional Members. The Members may admit
to the Company additional members to participate in the profits,
losses, available cash flow, and ownership of the assets of the
Company on such terms as are determined by all of the Members.
Admission of any additional Member requires the written consent of
all Members then having any interest in the Company. Any
additional Members are allocated gain, loss, income, or expense by
the method provided in this Agreement.
3.07 Limitation on Liability. No Member is liable under a
judgment, decree, or order of the court, or in any other manner,
for a debt, obligation, or liability of the Company, except as
provided by law. No Member is required to loan any funds to the
Company.
3.08 No Individual Authority. Unless expressly provided in
this Agreement, no Member, acting alone, has any authority to act
for, or to undertake or assume, any obligation, debt, or
responsibility on behalf of, any other Member of the Company.
3.09 No Member Responsible for Other Member's Commitment. In
the event that a Member (or a Member's shareholders, partners,
members, owners, or affiliates) has incurred any indebtedness or
obligation before the date of this Agreement that relates to or
otherwise affects the Company, neither the Company nor any other
Member has any liability or responsibility with respect to the
indebtedness or obligation unless the indebtedness or obligation is
assumed by the Company pursuant to a written instrument signed by
all Members. Furthermore, neither the Company nor any Member is
responsible or liable for any indebtedness or obligation that is
subsequently incurred by any other Member (or a Member's
shareholder, partners, members, owners, or affiliates). In the
event that a Member (or a Member's shareholders, partners, members,
owners, or affiliates; collectively called the "liable Member"),
whether before or after the date of this Agreement, incurs (or has
incurred) any debt or obligation that neither the Company nor any
of the other Members is to have any responsibility or liability
for, the liable Member must indemnify and hold harmless the Company
and the other Members from any liability or obligation they may
incur in respect of the debt or obligation.
3.10 Transfer and Assignment of Membership Interests. No
Member may assign, convey, sell, encumber, or in any way alienate
all or any part of his or her interest in the Company as a Member
without prior written consent of all other Members, which consent
may be given or withheld, conditioned or delayed (as allowed by
this Agreement or the Act), as the remaining Members may determine
in their sole discretion. Transfers in violation of this section
are effective only to the extent set forth in Subparagraph 3.13(b),
below.
3.11 Further Restrictions on Membership Transfers. No Member
may assign, convey, sell, encumber, or in any way alienate all or
any part of his, her or its interest in the Company (1) without
registration under applicable federal and state securities laws, or
unless he, she or it delivers an opinion of counsel satisfactory to
the Company that registration under those laws is not required; or
(2) if the interest to be sold or exchanged, when added to the
total of all other sold or exchanged in the preceding twelve (12)
consecutive months prior to that time, would result in the
termination of the Company under Section 708 of the Internal
Revenue Code.
3.12 Substitute Members. A transferee may become a Substitute
Member if (1) the requirements of Subsections 3.10 and 3.11, above,
are met; (2) the person executes an instrument satisfactory to the
remaining Members accepting and adopting the terms and provisions
of this Agreement; and (3) the person pays all reasonable expenses
in connection with his, her or its admission as a remaining Member.
3.13 Effect of Transfer.
(a) Any permitted transfer of all or any portion of a
Member's interest in the Company takes effect on the first day of
the month following receipt by the Members of written notice of
transfer. Any transferee of an interest in the company takes
subject to the restrictions on transfer imposed by this Agreement.
(b) On a transfer of a Member's interest in the Company
in violation of this Agreement, the transferee has no right to
participate in the management of the business and affairs of the
Company or to become a Member, but the transferee is entitled only
to receive the share of profits or other compensation by way of
income and the return of contributions to which the transferor of
the interest in the Company would otherwise be entitled.
3.14 Right of First Negotiation. If any Member desires to
transfer all or any part of his, her or its Membership Interest,
such Member shall notify the Company and the other Members in
writing of such desire and, for a period of thirty (30) days
thereafter, the Members and the Company shall negotiate with
respect to the purchase of such Member's Membership Interest.
During such period, the Member desiring to transfer such Membership
Interest may not solicit a transferee for such Membership Interest.
3.15 Right of First Refusal. If the period described in
Section 3.14 expires without an agreement being reached as to the
purchase of the Membership interest referred to therein, the Member
desiring to transfer his, her or its Membership Interest may
solicit transferees. In such event, each time a Member proposed to
transfer all or any part of his, her or its Membership interest,
such Member shall first offer such Membership Interest to the
Company and the non-transferring Members in accordance with the
following provisions:
(a) Such Member shall deliver a written notice ("Option
Notice") to the Company and the other Members stating (i) such
Member's bona fide intention to transfer such Membership Interest,
(ii) the Membership Interest to be transferred, (iii) the purchase
price and terms of payment for which the Member proposes to
transfer such Membership Interest and (iv) the name and address of
the proposed transferee.
(b) Within thirty (30) days after receipt of the Option
Notice, the Company shall have the right, but not the obligation,
to elect to purchase all or any part of the Membership Interest
upon the price and terms of payment designated in the Option
Notice. If the Option Notice provides for the payment of non-cash
consideration, the Company may elect to pay the consideration in
cash equal to the good faith estimate of the present fair market
value of the non-cash consideration offered as determined by the
Managers. If the Company exercises such right within such thirty
(30) day period, the Managers shall give written notice of that
fact to the transferring and non-transferring Members.
(c) If the Company fails to elect to purchase the entire
Membership Interest proposed to be transferred within the thirty
(30) day period described in Paragraph 3.14(b), the non-
transferring Members shall have the right, but not the obligation,
to elect to purchase any remaining share of such Membership
Interest upon the price and terms of payment designated in the
Option Notice. If the Option Notice provides for the payment of
non-cash consideration, such purchasing Members each may elect to
pay the consideration in cash equal to the good faith estimate of
the present fair market value of the non-cash consideration offered
as determined by the Managers. Within sixty (60) days after
receipt of the Option Notice, each non-transferring Member shall
notify the Managers in writing of his, her or its desire to
purchase a portion of the Membership Interest proposed to be so
transferred. The failure of any Member to submit a notice within
the applicable period shall constitute an election on the part of
that Member not to purchase any of the Membership Interest which
may be so transferred. Each Member so electing to purchase shall
be entitled to purchase a portion of such Membership Interest in
the same proportion that the Percentage Interest of such Member
bears to the aggregate of the Percentage Interests of all of the
Members electing to so purchase the Membership Interest being
transferred. In the event any Member elects to purchase none or
less than all of his, her or its pro rata share of such Membership
Interest, then the other Members can elect to purchase more than
their pro rata share.
(d) If the Company and the other Members elect to
purchase or obtain any or all of the Membership Interest designated
in the Option Notice, then the closing of such purchase shall occur
within the ninety (90) days after receipt of such notice and the
transferring Member, the Company and/or the other Members shall
execute such documents and instruments and make such deliveries as
may be reasonably required to consummate such purchase.
(e) If the Company and the other Members elect not to
purchase or obtain, or default in their obligation to purchase or
obtain, all of the Membership Interest designated in the Option
Notice, then the transferring Member may transfer the portion of
the Membership Interest described in the Option Notice not so
purchased, to the proposed transferee, providing such transfer (i)
is completed within thirty (30) days after the expiration of the
Company's and the other Members' right to purchase such Membership
Interest, (ii) complies with Paragraphs 3.10, 3.11, 3.12 and 3.13
relating to unanimous consent of Managers who are Members,
securities and tax requirements.
ARTICLE 4. POWER TO AMEND AGREEMENT
4.01 The Power to adopt, alter, amend, or repeal this
Agreement is vested entirely in the Members of the Company.
ARTICLE 5. MANAGEMENT RIGHTS IN MANAGERS
5.01 The right to exercise the powers of the Company and to
manage the business and affairs of the Company is vested entirely
in the Managers.
ARTICLE 6. ELECTION OF MANAGERS
6.01 (a) The initial Managers specified in the Articles of
Organization and/or Exhibit "A" attached hereto will serve as
Managers for the period specified in the Articles of Organization
or until resignation or removal.
(b) Managers may be elected at a special meeting called
for the purpose of electing Managers. Managers may also be
designated by the unanimous written consent of the Members.
(c) The term of service for the Managers is perpetual
unless removed by the affirmative vote of a majority of the
Members.
ARTICLE 7. REMOVAL OF MANAGERS
7.01 (a) The Members may remove a Manager before the
expiration of the Manager's term specified in this Agreement by the
affirmative vote of a majority of all of the Members.
(b) At any meeting of Members called expressly for the
purpose, a Manager may be removed for any reason, with or without
cause, on a resolution adopted by the Members.
ARTICLE 8. QUORUM OF MANAGERS
8.01 At all meetings of the Managers, two (2) of the Managers
must be present to constitute a quorum for the transaction of
business.
ARTICLE 9. ACTION BY MANAGERS
9.01 Authority. The Managers have full authority to act on
behalf of the Company and its Members in its best interest. An act
of the Managers is effective if more than a Majority in Interest of
the Managers, representing their Membership Interests, vote
approval of the act at a meeting at which a quorum of Managers is
present.
9.02 Appointment of Officers. The Managers may appoint
officers at any time. The officers of the Company, if deemed
necessary by the Managers, may include a chairperson, president,
vice president, secretary, and chief financial officer. The
officers shall serve at the pleasure of the Managers, subject to
all rights, if any, of an officer under any contract of employment.
Any individual may hold any number of offices. No officer need be
a resident of the State of California or citizen of the United
States. If a Manager is not an individual, such Manager's officers
may serve as officers of the Company if elected by the Managers.
The officers shall exercise such powers and perform such duties as
specified in this Agreement and as shall be determined from time to
time by the Managers. Any such officers duly appointed by the
Managers shall have the duties, power and authority assigned to
them by the Managers.
ARTICLE 10. REGULAR MEETINGS OF MANAGERS
10.01 Regular meetings of the Managers are held at 00000
Xxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, the principal office of
the Company. The Managers are authorized to designate, from time
to time, a place or places other than that specified above as the
place for regular meetings of the Managers.
ARTICLE 11. SPECIAL MEETINGS OF MANAGERS
11.01 Special meetings called by action of the Managers
are held at 00000 Xxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, the
principal office of the Company or a place designated by the
Managers. Written notice of the time and place of special meetings
must be delivered personally to the Managers or sent to each
Manager by United States mail or facsimile machine at the Manager's
address as shown on the records of the Company.
ARTICLE 12. NOTICE OF PURPOSE OF MANAGER MEETINGS
12.01 Notice of special meetings of the Managers must
specify the purpose of the meeting or the business to be transacted
at the meeting, in addition to the date, time and place of the
meeting.
ARTICLE 13. COMPENSATION OF MANAGERS
13.01 Members have authority to establish reasonable
compensation of all Managers for services to the Company. The
compensation may include pensions, disability benefits, and death
benefits.
ARTICLE 14. EXECUTION OF DOCUMENTS
14.01 The Managers and Members have the authority to
execute documents and instruments for the acquisition, mortgage, or
disposal of property on behalf of the Company, to open accounts,
disburse funds and otherwise bind the Company contractually. The
countersignatures of two or more Managers will be required to
authorize disbursements on behalf of the Company or bind the
Company contractually.
(a) Notwithstanding the foregoing, Member Westco
Community Builders, Inc. shall have the authority acting alone to
enter into contracts and authorize disbursements necessary to carry
out its duties as Construction Manager and Marketing Manager for
the Project; provided, however, that such authority shall not
include the power to convey title to the Project or any homes
situated thereon.
ARTICLE 15. MEETINGS OF MEMBERS
15.01 All meetings of Members must take place at 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx. The Members are authorized
to designate, from time to time, a place or places other than that
specified above as the place for meetings of the Members. Any
Member may call a special meeting by giving at least ten (10) days'
written notice to all other Members. The notice must specify the
date, time, and place of the special meeting and the purpose for
calling the meeting. Notice of the meeting must be delivered
personally to the Members or sent to each Member by United States
mail or facsimile machine at the Member's address as shown on the
records of the Company. For mailed notice, the notice must be
deposited in the United States mail at least twelve (12) days
before the time the meeting is held.
ARTICLE 16. QUORUM
16.01 At all meetings of the Members, two (2) Members must
be present to constitute a quorum for transaction of business.
ARTICLE 17. ACTIONS BY MEMBERS AND VOTING RIGHTS
17.01 Votes Required to Act. An act of the Members of
record is effective if the Majority in Interest of Members' votes
adopt the act at a meeting at which a quorum of Members is present.
The voting rights of the Members are to be distributed in
proportion to each Member's Percentage Interest as set forth in
Exhibit "A" hereto.
17.02 Actions of Tax Matters Member. The Tax Matters
Member of the Company, chosen pursuant to Internal Revenue Code
Section 6231(a)(7), is Westco Community Builders, Inc. who has the
same authority as granted by the Internal Revenue Code to a tax
matters partner.
ARTICLE 18. ACTION BY CONSENT WITHOUT MEETING.
18.01 Any action permitted to be taken by the Members may
be taken without a meeting if all Members individually or
collectively consent by signing a written approval of the action.
Any action by written consent shall have the same force and effect
as a unanimous vote of the Members.
ARTICLE 19. RECORD DATE
19.01. Only persons whose names are listed as Members in
the official records of the Company fifteen (15) days before any
meeting of the Members are entitled to notice of or to vote at that
meeting.
ARTICLE 20. VOTE BY PROXY
20.01 Members may vote either in person or by proxy.
Proxies must be executed in writing by the Members. A telegram,
cablegram, or similar transmission by the Member or a photographic,
photostatic, facsimile, or similar reproduction of a writing
executed by a Member is deemed an execution in writing for purposes
of this Agreement.
ARTICLE 21. ALLOCATIONS: DISTRIBUTIONS AND INTERESTS
21.01 Allocation of Net Income, Net Loss, or Capital
Gains. Except as may be expressly provided otherwise in this
Article 21, and subject to the provisions of Section 704(c) of the
Internal Revenue Code, the net income, net loss, or capital gains
of the Company for each fiscal year of the Company is allocated to
the Members as follows:
(a) Net Profits. Net profits shall be allocated among
the Members as follows:
(i) First to each of the Members until the
cumulative net profits allocated pursuant to this section is equal
to cumulative net loss allocated to the Member pursuant to Section
21.01(b) for any period;
(ii) Next, pari passu to the Members in the amount
of any accrued but preferred return allocable to their Capital
Contributions;
(iii) Thereafter to each of the Members pro rata
in accordance with their percentage interest.
(b) Net Loss. Net losses shall be allocated among the
Members as follows:
(i) First to the extend any net profits have been
allocated pursuant to Section 21.01(a) hereof in the following
order: first to offset any net profits allocated pursuant to
Section 21.01(a)(iii) hereof; then to offset any net profits
allocated pursuant to Section 21.01(a)(ii); and then to offset any
net profits allocated pursuant to Section 21.01(a)(i) (in each case
pro rata in proportion to the shares of net profits being offset);
(ii) Second, in proportion to the positive balances,
if any, in the Members' respective Capital Accounts, until such
balances are reduced to zero; and
(iii) Third; to the Members, pro rata, in
accordance with their Percentage Interests.
(c) Residual Allocations. Except as otherwise provided
in this Agreement, all items of Company income, gain, loss,
deduction, and any other allocations not specifically provided for
herein shall be allocated to the Members, pro rata in accordance
with their Percentage Interest.
21.02 Distributions. Periodically, but not less
frequently than at the end of each calendar quarter, and after the
payment from gross income of all Approved Costs, the net income
from net sales proceeds shall be distributed to the Members and
will be allocated as follows:
(a) First, to Dover Investments Corp. and Westco
Community Builders, Inc., pari passu, an amount equal to their
respective return of capital contributed.
(b) Second, to Dover Investments Corp. its Preferred
Return.
(c) Third, to Dover Investments, Corp. 50% of the
remaining funds available and to Westco Community Builders, Inc.
50% of the remaining funds available.
It is anticipated that the net income and all proceeds will be
distributed in accordance with the above no less frequently than
quarterly. However, the Members agree that should either Member
have tax liability or tax liabilities requiring funds, then the
Members shall authorize distributions, including any necessary
advance distributions, to that Member. Any distributions to a
Member receiving advance distributions shall be first utilized to
satisfy such advance distributions.
21.03 Allocation of Income and Loss and Distributions in
Respect of Interests Transferred.
(a) If any interest in the company is transferred, or is
increased or decreased by reason of the admission of a new Member
or otherwise, during any fiscal year of the Company, each item of
income, gain, loss, deduction, or credit of the Company for the
fiscal year must be assigned pro rata to each day in the particular
period of the fiscal year to which the item is attributable (that
is, the day on or during which it is accrued or otherwise incurred)
and the amount of each item so assigned to any day shall be
allocated to the Member based on his, her or its respective
interest in the Company at the close of the day. For the purpose
of accounting convenience and simplicity, the Company may treat a
transfer of, or an increase or decrease in, an interest in the
Company that occurs at any time during a semimonthly period
(commencing with the semimonthly period including the date of this
Agreement) as having been consummated on the first day of the
semimonthly period, regardless of when during the semimonthly
period the transfer, increase, or decrease actually occurs (that
is, sales and dispositions made during the first fifteen (15) days
of any month are deemed to have been made on the 16th day of the
month).
(b) Distributions of the Company assets in respect of
any interest in the Company shall be made only to the Members who,
according to the books and records of the Company, are holders of
record of the interests in respect of which the distributions are
made on the actual date of distribution. Neither the Company nor
any Member incurs any liability for making distributions in
accordance with the provisions of the preceding sentence, whether
or not the Company or Member has knowledge or notice of any
transfer or purported transfer of ownership of interest the Company
that has not been approved by unanimous vote of the Members.
Notwithstanding any provision above to the contrary, gain or loss
of the Company realized in connection with a sale or other
disposition of any of the assets of the company must be allocated
solely to the parties owning interests in the Company as of the
date the sale or other disposition occurs.
ARTICLE 22. REPRESENTATIONS
Each Member hereby represents and warrants to, and agrees
with, the Members and Company as follows:
22.01. He, she or it has a preexisting personal or business
relationship with the Company or one or more of its officers or
controlling persons, or by reason of his, her or its business or
financial experience, or by reason of the business or financial
experience of his, her or its financial advisor who is unaffiliated
with and who is not compensated, directly or indirectly, by the
Company or any affiliate or selling agent of the Company; he, she
or it is capable of evaluating the risks and merits of an
investment in the Company and of protecting his, her or its own
interests in connection with this investment.
22.02. He, she or it has not seen, received, been presented
with, or been solicited by any leaflet, public promotional meeting,
article or any other form of advertising or general solicitation
with respect to the sale of the Membership Interest.
22.03. He, she or it is acquiring the Membership Interest
for investment purposes for its own account and not with a view to
or for sale in connection with any distribution of all or any part
of the Membership Interest. No other person will have any direct
or indirect beneficial interest in or right to the Membership
Interest.
22.04. He, she or it is financially able to bear the
economic risk of an investment in the Membership, including the
total loss thereof.
22.05. He, she or it acknowledges that the Membership
Interest has not been registered under the Securities Act of 1933,
as amended (the Securities Act), or qualified under any blue sky
laws in reliance, in part, on his, her or its representations,
warranties and agreements herein.
22.06. He, she or it represents, warrants and agrees that
the Company is under no obligations to register or qualify the
Membership Interest under the Securities Act or under any state
securities law, or to assist it in complying with any exemption
from registration and qualification.
22.07. Without limiting the representations set forth
above, he, she or it will not make any disposition of all or any
part of the Membership Interest which will result in the violation
by it or by the Company of the Securities Act or any other
applicable securities laws.
22.08. He, she or it understands that the certificates (if
any) evidencing the Membership Interest may bear any legend
required by applicable securities laws.
22.09. He, she or it acknowledges that the Membership
Interest is a speculative investment which involves a substantial
degree of risk of loss by it of his, her or its entire investment
in the Company, that he, she or it understands and takes full
cognizance of the risk factors related to the purchase of the
Membership Interest, and that the Company is newly organized and
has no financial or operating history.
22.10. He, she or it acknowledges that there are
substantial restrictions on the transferability of the Membership
Interest pursuant to this Agreement, that there is no public market
for the Membership Interest and none is expected to develop, and
that, accordingly, it may not be possible for it to liquidate his,
her or its investment in the Company.
22.11. Neither the Members, any agent or employee of the
Company or of the Members, nor any other person has at any time
guaranteed or warranted to him, her or it that he, she or it may
freely transfer the Membership Interest, that a percentage of
profit and/or amount or type of consideration will be realized as
a result of an investment in the Membership Interest, that past
performance or experience on the part of any Member or any other
person in any way indicates the predictable results of the
ownership of the Membership Interest or of the overall Company
business, that any cash distributions from Company operations or
otherwise will be made to the Members by any specific date or will
be made at all or that any specific tax benefits will accrue as a
result of an investment in the Company.
22.12. He, she or it acknowledges that the tax consequences
to him, her or it of investing in the Company will depend on his,
her or its particular circumstances, and neither the Company, the
Members, nor any other person will be responsible or liable for the
tax consequences to him, her or it of an investment in the Company.
He, she or it will look solely to, and rely upon, his, her or its
own advisers with respect to the tax consequences of this
investment.
ARTICLE 23. INDEMNIFICATION OF MEMBERS
AND MEMBERS' FIDUCIARY DUTIES
23.01 The Company will indemnify Members for any act taken
in the capacity of a Member, other than acts that involve a breach
of fiduciary duty. The standard of the fiduciary duty a Member
owes to the Company and to its Members are those of a partner to a
partnership and to the partners of the partnership. A Member's
standard of conduct owed to the Company and other Members is to act
in the highest good faith to the Members, and a Member may not seek
to obtain an advantage in the Company affairs by the slightest
misconduct, misrepresentation, concealment, threat, or adverse
pressure of any kind.
ARTICLE 24. INDEMNIFICATION OF MANAGERS
AND MANAGERS' FIDUCIARY DUTIES
24.01. The Company shall indemnify Managers for any act
taken in the capacity of a Manager, other than acts that involve a
breach of fiduciary duty. The standard of the fiduciary duties a
Manager owes to the Company and to its Members are those of a
partner to a partnership and to the partners of the partnership.
A Manager's standard of conduct owed to the Company and other
Members is to act in the highest good faith to the Members, and a
Manager may not seek to obtain an advantage in the Company affairs
by the slightest misconduct, misrepresentation, concealment,
threat, or adverse pressure of any kind.
ARTICLE 25. COMPANY RECORDS AND REPORTS
25.01. Records and Accounting; Fiscal Year. The books and
records of the Company must be kept, and the financial position and
the results of its operations recorded, in accordance with the
accounting methods elected to be followed by the company for
federal and state income tax purposes. The books and records of
the Company must reflect all Company transactions and must be
appropriate and adequate for the Company's business. The fiscal
year of the Company for financial reporting and for federal income
tax purposes is the calendar year.
25.02. Access to Accounting Records. All books and records
of the Company must be maintained at any office of the Company or
at the Company's principal place of business, and each Member, and
his, her or its duly authorized representative, must have access to
them at the office of the Company and the right to inspect and copy
them at reasonable times.
25.03. Annual and Tax Information. The Members must use
their best efforts to cause the Company to deliver to each Member,
within sixty (60) days after the end of each fiscal year, all
information necessary for the preparation of each Member's federal
income tax return. The Members must also use their best efforts to
cause the Company to prepare, within sixty (60) days after the end
of each fiscal year, a financial report of the Company for the
fiscal year, which must contain a balance sheet as of the last day
of the year then ended, an income statement for the year then
ended, a statement of sources and applications of funds, and a
statement of reconciliation of the capital accounts of the Members.
ARTICLE 26. DISSOLUTION OF COMPANY
26.01. The Company shall be dissolved, its assets shall be
disposed of, and its affairs shall be wound up on the first to
occur of the following events:
(a) A determination by more than 50% of the Members that the
Company should be dissolved.
(b) The expiration of the Company term as stated in the
Articles.
(c) On the death, insanity, bankruptcy, retirement,
resignation, or expulsion of any Member unless at least fifty
percent (50%) of the remaining Members consent to continue the
Company within ninety (90) days of the dissolution event.
(d) At any earlier time as may be provided by applicable law.
ARTICLE 27. CONSEQUENCES OF DISSOLUTION EVENTS ON TERMINATION
OF MEMBERS' INTEREST
27.01 Dissolution Event. Upon the occurrence of the
events specified in Paragraph 25.01(c) and the remaining Members'
consent to continue the Company as specified, the Company and/or
remaining Members (Remaining Members) shall have the right to
purchase, and if such right is exercised, the Member whose actions
or conduct resulted in the dissolution event (Former Member) shall
sell, the Former Member's Membership Interest (Former Member's
Interest) as provided in this Article 26.
27.02 Withdrawal. Upon the withdrawal by a Member in the
absence of the consent of all Remaining Members, such Member shall
be treated as a Former Member, and, unless the Company dissolves as
a result of such withdrawal, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is
exercised, the Former Member shall sell, the Former Member's
Interest as provided in this Article 26.
27.03 Purchase Price. The purchase price for the Former
Member's Interest shall be the fair market value of the Former
Member's Interest as determined by an independent appraiser jointly
selected by the Former Member and by the Remaining Members holding
a majority of the remaining Membership Interests. The Company and
the Former Member shall each pay one-half of the cost of the
appraisal. Notwithstanding the foregoing, if the Dissolution Event
results from a breach of this Agreement by the Former Member, the
purchase price shall be reduced by an amount equal to the damages
suffered by the Company or the Remaining Members as a result of
such breach.
27.04 Notice of Intent to Purchase. Within thirty (30)
days after the fair market value of the Former Member's Interest
has been determined in accordance with Section 26.03, each
Remaining Member shall notify the Members in writing of his, her or
its desire to purchase a portion of the Former Member's Interest.
The failure of any Remaining Member to submit a notice within the
applicable period shall constitute an election on the part of the
Member not to purchase any of the Former Member's Interest. Each
Remaining Member so electing to purchase shall be entitled to
purchase a portion of the Former Member's Interest in the same
proportion that the Membership Interest of the Remaining Members
bears to the aggregate of the Membership Interests of all of the
Remaining Members electing to purchase the Former Member's
Interest.
27.05 Election to Purchase Less Than All of the Former
Member's Interest. If any Remaining Member elects to purchase none
or less than all or his, her or its pro rata share of the Former
Member's Interest, then the Remaining Members can elect to purchase
more than their pro rata share. If the Remaining Members fail to
purchase the entire interest of the Former Member, the Company may
purchase any remaining share of the Former Member's Interest.
27.06 Payment of Purchase Price. The Company or the
Remaining Members, as the case may be, shall pay at the closing
one-fifth (1/5) of the purchase price and the balance of the
purchase price shall be paid in four equal annual principal
installments, plus accrued interest, and be payable each year on
the anniversary date of the closing. The unpaid principal balance
shall accrue interest at the current applicable federal rate as
provided in the Code for the month in which the initial payment is
made, but the Company and the Remaining Members shall have the
right to prepay in full or in part at any time without penalty.
The obligation of each purchasing Remaining Member or the Company,
as applicable, to pay its portion of the balance due shall be
evidenced by a separate promissory note executed by the respective
purchasing Remaining Member or the Company, as applicable. Each
such promissory note shall be in an original principal amount equal
to the portion owed by the respective purchasing Remaining Member
or the Company, as applicable. The promissory note executed by
each purchasing Remaining Member shall be secured by a pledge of
that portion of the Former Member's Interest purchased by such
Remaining Member.
27.07 Closing of Former Member's Interest. The closing
for the sale of a Former Member's Interest pursuant to this Article
26 shall be held at 10:00 a.m. at the principal office of Company
no later than sixty (60) days after the determination of the
purchase price, except that if the closing date falls on a
Saturday, Sunday or California legal holiday, then the closing
shall be held on the next succeeding business day. At the closing,
the Former Member shall deliver to the Company or the Remaining
Members an instrument of transfer (containing warranties of title
and no encumbrances) conveying the Former Member's Interest. The
Former Member, the Company and the Remaining Members shall do all
things and execute and deliver all papers as may be reasonably
necessary fully to consummate such sale and purchase in accordance
with the terms and provisions of this Agreement.
ARTICLE 28. MISCELLANEOUS PROVISIONS
28.01. Complete Agreement. This Agreement and the Articles
of this Company constitute the complete and exclusive statement of
agreement among the Members with respect to the subject matter
described. This Agreement and the Articles replace and supersede
all prior agreements by and among any of the Members. This
Agreement and the Articles supersede all prior written and oral
statements; no representation, statement, or condition or warranty
not contained in this Agreement or the Articles is binding on the
Members or has any force or effect.
28.02. Governing Law. This Agreement and the rights of the
parties under this Agreement will be governed by, interpreted, and
enforced in accordance with the laws of the State of California.
28.03. Binding Effect. Subject to the provisions of this
Agreement relating to transferability, this Agreement is binding on
and inures to the benefit of the Members, and their respective
distributees, successors, and assigns.
28.04. Severability. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under the present or
future laws effective during the term of this Agreement, the
provision is fully severable; this Agreement is construed and
enforced as if the illegal, invalid, or unenforceable provision had
never comprised a part of this Agreement; and the remaining
provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid, or unenforceable
provision; and there will be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid,
or unenforceable provision as may be possible and be legal, valid,
and enforceable.
28.05. Multiple Counterparts. This Agreement may be
executed in several counterparts, each of which is deemed an
original but all of which constitute one and the same instrument.
However, in making proof only one copy signed by the party to be
charged is required.
28.06. Additional Documents and Acts. Each Member agrees
to execute and deliver additional documents and instruments and to
perform all additional acts necessary or appropriate to effectuate,
carry out, and perform all of the terms, provisions, and conditions
of this Agreement and the transactions contemplated by it.
28.07. No Third Party Beneficiary. This Agreement is made
solely and specifically among and for the benefit of the parties to
it, and their respective successors and assigns, subject to the
express provisions of the Agreement relating to successors and
assigns, and no other person has or will have any rights, interest,
or claims under this Agreement as a third-party beneficiary or
otherwise.
28.08. Tax Consequences. Members acknowledge that the tax
consequence of each Member's investment in the Company is dependent
on each Member's particular financial circumstances. Each Member
will rely solely on the Member's financial advisors and not the
Company. The Company makes no warranties as to the tax benefits
that the Members receive or will receive as a result of the
Member's investment in the Company.
28.09. Notices. Any notice to be given or to be served on
the Company or any party to this Agreement in connection with this
Agreement must be in writing and is deemed to have been given and
received when delivered to the address specified by the party to
receive the notice. Notices must be given to each Member at the
address specified in Exhibit A. Any Member or the Company may, at
any time, designate any other address in substitution of the
foregoing address to which notice will be given by giving written
notice to the other Members and the Company thirty (30) days before
the date of delivery of the notice.
28.10. Amendments. All Amendments to this Agreement must
be in writing and signed by all of the Members.
28.11. Title to Company Property. Legal title to all
property of the Company must be held and conveyed in the name of
the Company.
28.12. Reliance on Authority of Person Signing Agreement.
In the event that a Member is not a natural person, neither the
Company nor any Member will (1) be required to determine the
authority of the individual signing this Agreement to make any
commitment or undertaking on behalf of the entity or to determine
any fact or circumstance bearing on the existence of the authority
of the individual, or (2) be required to see to the application or
distribution of proceeds paid or credited to individuals signing
this Agreement on behalf of the entity.
28.13 Banking. All funds of the Company shall be
deposited in one or more accounts with one or more recognized
financial institutions in the name of the Company, at such
locations as shall be determined by the Managers. The Managers
shall determine, by unanimous resolution, those persons authorized
to withdraw funds from such accounts and the amount such persons
are authorized to withdraw.
IN WITNESS THEREOF, the undersigned have executed this
Agreement, to be effective as of the date that the Articles of
Organization of the Company are accepted for filing by the
Secretary of State.
MEMBERS:
WESTCO COMMUNITY BUILDERS, INC.
a California corporation
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Its: President
DOVER INVESTMENTS CORP.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxx
Its: Chief Executive Officer
Exhibit A
CAPITAL CONTRIBUTION OF MEMBERS AND ADDRESSES OF MEMBERS
AND MANAGER AS OF
SOUTH XXXXX INDUSTRIAL PARK, LLC
Member's Name: Westco Community Builders, Inc.
a California Corporation
Member's Address: 0000 Xxxxxx Xxxxxx,
Xxx Xxxxxxx, XX 00000
Member's Capital
Contribution: $10.00 (See Section 3.01(b) of the
Operating Agreement)
Member's Percentage
Interest: 50%
Member's Name: Dover Investments Corporation
a Delaware Corporation
Member's Address: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Member's Capital
Contribution: $10.00 (See Section 3.01(a) of the
Operating Agreement)
Member's Percentage
Interest: 50%
Managers Name: Managers Address:
Westco Community Builders, Inc. 0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Dover Investments Corporation 000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
