Loading...
HomeMy WebLinkAboutL_2nd Amended and Restated LLC Agreement, iCap Pacific NW Management2ND AMENDED AND RESTATED OPERATING AGREEMENT FOR ICAP PACIFIC NW MANAGEMENT, LLC The undersigned, currently the sole Member of iCap Pacific NW Management, LLC does hereby enter into this contract and operating agreement for the operation of the above named limited liability company, hereinafter referred to as the "Company" or "Entity." Intent of the Parties It is the specific intent of the parties to this operating agreement to form a limited liability company under state law that is to be treated (for federal income tax purposes only) as a disregarded entity until additional Members, if any, gain membership and then the entity is to be classified as a partnership for federal income tax purposes. II Office The principal office of the Company is located at 10900 NE 8th Street, Suite 1000, Bellevue, WA 98004. The Company may have such other offices, either within or without the state as the Members may designate, or as the business of the Company may require. The registered office of the Company is required by the Act to be maintained in the state of Washington. III Purposes This limited liability company is organized to conduct any lawful business permitted under RCW 25.15.030 or its successor. IV Duration of the Company The Company was formed when the Certificate of Formation was executed and filed with the office of the Secretary of State in accordance with and pursuant to the Act. The Company will continue perpetually from the date of its formation unless sooner terminated upon the happening of any of the following events: (a) the sale of all or substantially all of the Company's assets; (b) the affirmative vote of a two-thirds (2/3) of the Members; or (c) termination required by operation of law. V Allocation of Profits and Losses If and when there is more than one Member, the Members shall determine the income tax allocations of profits, losses, and other items at least thirty (30) days before the filing of the Company's federal income tax return. When there is only one Member the entity does not have standing for federal partnership tax treatment but rather, is treated as a disregarded entity. Therefore, the sole Member reports the profits and losses for federal income tax purposes on the Member's personal income tax form (e.g. IRS Form 1040, Schedule C or E). VI Capital Contributions The Member(s) agree to share in all post formation capital contributions, profits, and surplus of the Company according to the percentage of their beneficial interest. New Members are required to make a capital contribution as a condition of becoming a Member. Conditions of membership are to be determined on a case by case basis by the existing Members. Each Member owns an undivided beneficial interest in the business and Company based on their capital accounts. VII Additional Capital Contributions When, if ever, there is more than one Member, then the Members may contribute in proportionate amounts, any additional capital deemed necessary for the operation of the Company upon request of the Manager, provided, however, that in the event any Member deems it advisable to refuse or fails to contribute his/her/its share of any or all of such additional capital, then the other Members or any one of them may contribute the additional capital not paid in by such refusing Member and shall receive therefor an increase in the proportionate share of the Member's interest or interests in the entire Company in direct proportion to the said additional capital contributed. Unless otherwise agreed, the right to make up additional capital contributions of a refusing Member shall be available in the same order as the right to purchase in the case of withdrawal or death of a Member, as -set forth in paragraphs XVIII and XIX. VIII Division of Profits and Losses If and when there is more than one Member, then each of the new Members shall own a profits interest in the Company as set forth in paragraph VI, entitled "Capital Contributions," except as the same may hereafter vary or change as provided in paragraph VII, entitled "Additional Capital Contributions," and except as otherwise permitted in writing by Altius Development, Inc. When there is more than one Member, all profits of the Company enterprise shall be shared by each of said Members according to their respective percentage of capital interest. A separate capital account shall be maintained for each Member. No Member shall make any withdrawals from capital without prior approval of the Company Manager. If the capital account of the Member becomes impaired, his/her/its share of subsequent Company profits shall be first credited to his/her/its capital account until that account has been restored. 2 IX Rights and Duties of the Parties This entity is to be Manager managed. The Company Managers shall be Chris Christensen and Jim Christensen. Each Manager shall have full power and authority to perform all acts on behalf of the Company necessary for the conduct of the Company's business without prior approval from the other Manager. X Costs, Expenses, and Loans Except as herein provided, no Member shall be compensated for services performed in carrying out the operations of the Company. No salaries or individual compensation shall be payable for normal management activities without the consent of the Company. The Company may employ non -Members at a designated salary. Members may serve in other capacities with or without compensation. XI Members Duties and Restrictions If and when there is more than one Member, then no Member, without the consent of a majority interest of the Members, may endorse any note, act as an accommodation party, or otherwise become surety for any person in any transaction involving this Company. If there is more than one Member, then no Member shall borrow or lend money, or make, deliver or accept any commercial paper, or execute any mortgage, security agreement, bond, or lease, or purchase or contract to purchase, or sell or contract to sell any property for or of the Company without consent of the majority interest of Members. If there is more than one Member, no Member shall mortgage or grant a security interest in its share of the membership interest or do any act detrimental to the best interest of the Company or which would make it impossible to carry on the ordinary purpose of the Company. If there is more than one Member then no Member has authority to act for the Company absent clear written authority. XII Indemnification The Company may indemnify any Member, managing Member, Manager, officer, employee or agent against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her/it, in connection with any action, suit or proceeding, if the Member(s) determine that he/she/it acted in good faith in a manner that he/she/it reasonably believed to be in the best interest of the Company. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or on a plea of nolo contendere or its equivalent, will not in itself create a presumption that the person did or did not act in good faith and in a manner which he/she/it reasonably believed to be in the best interest of the Company and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her/its conduct was unlawful. 3 XIII Banking All funds of the Company shall be deposited in its name in such checking account or accounts as shall be designated by the Manager. All withdrawals therefrom are to be made upon written bank instruments, which must be signed by an authorized Member. XIV Books The Company books shall be maintained at the Company offices, to be retained by the Entity, and each Member shall have access thereto. The books shall be kept on a calendar year basis, and shall be closed and balanced at the end of each tax year. Each party to this operating agreement hereby covenants and agrees to cause all known business transactions pertaining to the purpose of the Company, to be entered properly and completely into said books. The Company is to furnish copies of annual financial statements to the Members and prepare annual tax returns, if required, in a timely manner. XV Insurance During the course of the term for which this Company is formed, the Company may carry liability insurance in such amounts as are deemed appropriate by the Member(s). XVI Voluntary Terminations If the Company is dissolved, the Members shall proceed with reasonable promptness to liquidate the Company. The assets of the Company shall be distributed in the following order: A. To pay or provide for the payment of all Company liabilities to creditors other than Members, and liquidating expenses and obligations; B. To pay debts owing to Members other than for capital and profits; C. To pay debts owing to Members in respect to capital; and D. To pay debts owing to Members in respect to profits. XVII Withdrawal of Member by Sale A. If there is more than one Member, then any Member desiring to sell his/her/its share and interest in the Company shall give the right of first refusal to purchase said share and 1i interest to the remaining Members at the same price as that being offered by a bona fide buyer. Each Member electing to purchase has the right to purchase that percentage of the share being sold obtained by dividing his/her/its respective percentage of the Company by the total percentage of all Members electing to purchase. B. When there is more than one Member the unanimous consent of all Members is required for a Member to sell his/her/its share to a non -Member or for an assignee of a Member to become a Member. XVIII Death of a Member If there is only one Member and that Member dies, the Member's heirs shall petition a court of competent jurisdiction to appoint a conservator to wind up the Entity. In the event of the death of a Member when there is more than one Member, then the deceased's heir or heirs shall be entitled only to succeed to the economic share and interest of the deceased Member, but shall have no voting rights in Company decisions. The Company may, upon unanimous consent of the remaining Members, as soon as practicable, provide a document by which the remaining Members personally affirm and accept all the terms, conditions and provisions of this operating agreement binding themselves to continue the same business in writing. XIX Distributions Prior to dissolution, as income is received by the Company, its accounts determined and tax returns filed, the Members shall determine funds available for distribution. Upon liquidation, a reasonable reserve as reasonably determined shall be established to cover contingent liabilities, if any. Liquidation of the Company need not be delayed provided that such amounts are properly escrowed and arrangement made for performance of such services as may be required in the interest of the Company. Escrows, reserves or liquidating accounts may be established as escrows or otherwise, which activity need not unduly delay the termination of the Company for all other purposes. XX Amendment of Operating Agreement When there is more than one Member, then this operating agreement may be altered, amended or repealed and a new operating agreement may be adopted only by a majority vote of the Members at any annual, regular or special meeting of the Members or by unanimous written resolution. XXI Violation of this Operating Agreement If there is more than one Member, then any Member who violates any term, condition, or provision of this operating agreement shall keep and save harmless the Company's property and 5 shall also indemnify the other Members from any and all claims, demands, and actions of every kind and nature whatsoever which may arise out of or by reason of such violation of any terms and conditions of this operating agreement. XXII Capital Accounts -Income and Credits of Members When there is more than one Member, the Company shall maintain for each Member a capital account which reflects that Member's separate distributive share, whether or not distributed, of each class or item of the Company income, gain, loss, deduction, or credit described in the IRS sections 702 and 704. If it is determined that a Member's allocation of income, gain, loss, deduction, or credit does not have substantial economic effect then his/her/its distributive share of such income, gain, loss, deduction, or credit shall be determined in accordance with his/her/its interest in the Entity. Any special allocations of income, gain, loss, or deduction for each Member are to be specified in an exhibit to this Agreement. Upon liquidation, each Member must restore any deficits in his/her/its capital account. XXIII Lack of Authority If there is more than one Member, then no Member has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditure that has not been approved by a majority interest of the Members or such greater interest required by the LLC agreement, the Certificate of Formation or applicable law. XXIV Miscellaneous A. Counterparts. This LLC agreement may be executed in counterparts, all of which shall be deemed to be one and the same instrument, and it shall be sufficient for each party to have executed at least one, but not necessarily the same, counterpart. B. Governing Law, Successors, Severability. This Agreement shall be governed by the laws of the State of Washington as such laws are applied by Washington courts to agreements entered into and to be performed in Washington by and between residents of Washington, and shall, subject to the restrictions on transferability set forth herein, bind and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto. If any provision of this Agreement shall be held to be invalid, the remainder of this Agreement shall not be affected thereby. C. No Waiver. The failure of any Member to seek redress for violation, or to insist on strict performance, of any covenant or condition of this Agreement shall not prevent a subsequent act which would have constituted a violation from having the effect of an original violation. 2 D. Other Business Ventures. Any Member or any shareholder, director, Member, employee, Affiliate or other Person holding a legal or beneficial interest in any entity which is a Member or Manager, may engage in or possess an interest in other business ventures (including ventures in competition with the Company) of every nature and description, independently or with others. IN WITNESS WHEREOF, the parties have hereunto set their hands effective this 1St day of March, 2017. MEMBER: ICAP EQUITY, LLC By: iCap Pacific NW Management, LLC, A Washington limited liability company By: Chris C#istensen Its: Manager MANAGERS: Chris Christ sen 7