Loading...
HomeMy WebLinkAboutCC - Operating Agreement - Orchard Park LIMITED LIABILITY COMPANY OPERATING AGREEMENT among ORCHARD PARK DEVELOPMENT, LLC and THE MEMBERS NAMED HEREIN dated as of <<c k _ 32022 THIS OPERATING AGREEMENT is made effective as of .2022 by and among those Persons (the"Members") identified in Exhibit"A". NOW, THEREFORE, in consideration of the mutual covenants and conditions herein, the Members agree that,pursuant to the Act,the following shall constitute the Operating Agreement, as amended from time-to-time., for Orchard Park Development,LLC, "the Company) a Idaho limited liability company: ARTICLE I ORGANIZATION Section 1.01 Formation and Qualification. The Members have formed a limited liability company (the"Company") under the Idaho Uniform Limited Liability Company Act (the "Act") by filing a Article of Organization with the Idaho Secretary of State. Section 1.02 Governing Law.This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Idaho including the Act as amended from time-to-time.,without regard to Idaho's conflicts of laws principles. The rights and liabilities of the Members shall be determined pursuant to the Act and this Agreement.To the extent that any provision of this Agreement is inconsistent with any provision of the Act,this Agreement shall govern to the extent permitted by the Act. Section 1.03 Name. The name of the Company shall be Orchard Park Development LLC. The business of the Company may be conducted under that name or,in compliance with applicable laws,any other name that the Management Members deem appropriate or advisable.The Management Members on behalf of the Company shall file any certificates,articles, fictitious business name statements and the like, and any amendments and supplements thereto, as the Management Members consider appropriate or advisable. Section 1.04 Term.The term of the Company commenced on the filing of the Articles of Organization and shall be perpetual unless dissolved as provided in this Agreement. Section 1.05 Office and Agent.The principal office of the Company shall be at such place or places of business within or without the State of Idaho as the Management Members may determine. The Company shall continuously maintain a registered agent in the State of Idaho as required by the Act.The registered agent shall be as stated in the Articles or as otherwise determined by the Management Members. Section 1.06 Purpose of Company. The purpose of the Company shall be: (A) to engage in any lawful business subject to any provisions of law governing or regulating such business within the State of Idaho (B) to exercise all other powers necessary to reasonably be connected with the Company's business which may legally be exercised by limited liability companies under the Act;and (C) to engage in all activities necessary, customary, convenient or incident to any of the foregoing. ARTICLE 11 MEMBERSHIP INTERESTS,AND MANAGEMENT Section 2.01 Initial Members. The initial Members of the Company are the Members who are identified in Exhibit `A". Section 2.02 Classification of Membership Interests.The Company shall issue Investor Membership Units ("Investor" or"Investor Units"),to the Investor Members (the "Investor Members") listed on Exhibit"A"in the respective Membership Unit Percentages as shown on said Exhibit. The Investor Members shall not have the right to vote. The Investor Membership Units shall be valued at$50,000 and there shall be a limit of 24 Investor Membership Units available. The Company shall also issue Management Membership Units, to the Management Members (the "Management Members") listed on Exhibit "A" in the respective Membership Unit Percentages as shown on said Exhibit. The Management Members shall have the right to vote upon all matters upon which Members have the right to vote under the Act or under this Agreement, in the Company. Unless the context requires otherwise, in this Agreement, the terms "Member" or "Members," without the qualifiers "Investor" or "Management" refer to the Investors and Management Members collectively. Section 2.03 Percentage Ownership.A Member's Ownership Interest ("Ownership Interest") is the total of his interests,together with all of the rights, as a Member or Manager of the Company,that arise from such interests. The Percentage Ownership Interest ("Percentage Ownership Interest") of a Member shall be calculated by adding together that Member's Capital Account, and then dividing this sum by the total of all of the Members' Capital Accounts. The Members shall have the initial Ownership and Percentage Ownership in the Company that are identified in Exhibit A,immediately following the making of the capital contributions set forth therein. Section 2.04 Voting. Except as otherwise provided or permitted by this Agreement, Management Members shall in all cases,in their capacity as Members of the Company,act collectively, and,unless otherwise specified or permitted by this Agreement,unanimously. Except as otherwise provided or permitted by this Agreement,no Member acting individually,in his capacity as a Member of the Company, shall have any power or authority to sign for,bind or act on behalf of the Company in any way, to pledge the Company's credit,or to render the Company liable for any purpose. Section 2.05 Liability of Members.All debts, obligations and liabilities of the Company, whether arising in contract,tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member. Section 2.06 New Members.The Management Members may issue additional Investor or Management Member Units and thereby admit a new Member or Members, as the case may be,to the Company, only if such new Member: (i) is approved unanimously by the Management Members; (ii) delivers to the Company the required capital contribution; (iii) agrees in writing to be bound by the terms of this Agreement by becoming a party hereto;and (iv) delivers such additional documentation as the Members shall reasonably require to so admit such new Member to the Company. Upon the admission of a new Member or Members,as the case may be, to the Company, the capital accounts of Members, and the calculations that are based on the capital accounts, shall be adjusted appropriately and as provided herein. Section 2.07 Transfer and Assignment of Interests.A Member may not sell,assign, transfer or otherwise dispose of all or part of his Ownership Interest without first making a written offer to sell such Ownership Interests to the other Members or the Company at a mutually agreed upon price. If the Company or such other Members decline the purchase of the Ownership Interest within thirty (30) days, and the sale or assignment is made and the Members fail to approve this sale or assignment unanimously then,the purchaser or assignee shall have no right to vote nor participate in the management of the business or other affairs of the Company.The purchaser or assignee shall only be entitled to receive the share of the profits or other compensation by way of income and the return of contributions to which that Member would otherwise be entitled. In the event of a Member's bankruptcy or other involuntary transfer of interest, such as a creditor obtaining a lien or a charging order against a Member's interest,this act shall constitute a material breach of this Agreement by such Member. The creditor or claimant shall only be considered an Assignee and shall have no right to become a Member or have rights to participate in the affairs of the Company nor have the right to participate as a Member or Manager in any regard. Said creditor or claimant shall only be entitled to receive the share of profit and losses,or the return of capital,to which the Member would otherwise have been entitled. In the event of a charging order, bankruptcy, lien or other involuntary transfer,the Management Members may unanimously elect that the Company purchase all or any part of the Ownership Interests that are in question.The price shall be equal to one-half(1/2) of the fair market value of such Ownership Interests.Written notice of such purchase shall be provided to the creditor or claimant within sixty (60) days. ARTICLE III CAPITAL ACCOUNTS Section 3.01 Initial Capital Contributions. Each original Member to this Agreement shall make an initial Capital Contribution to the Company in accordance with Exhibit"A" at the time of each Member's execution of this Agreement. No Member shall be entitled to withdraw any part of its Capital Account or to receive any distribution from the Company, except as otherwise provided in this Agreement. Section 3.02 Capital Accounts.A separate capital account shall be maintained for each Member's ownership interest. The capital account of each Member shall be increased by: (i) the amount of any cash and the fair market value of any property contributed to the Company by such Member (net of any liability secured by such contributed property that the Company is considered to assume or take subject to), (ii) the amount of income or profits allocated to such Member. The capital account or accounts of each Member shall be reduced by: (i) the amount of any cash and the fair market value of any property distributed to the Member by the Company (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to on account of his ownership interest), (ii) the amount of expenses or loss allocated to the Member. If any property other than cash is distributed to a Member,the Capital Accounts of the Members shall be adjusted as if the property had instead been sold by the Company for a price equal to its fair market value and the proceeds distributed. Guaranteed Payments ("Guaranteed Payments") for salary,wages, fees,payments on loans,rents, etc.,may be made to the Members, only upon approval by the Management Members. Guaranteed Payments shall not be deemed to be distributions to the Members on account of their Ownership Interests,and shall not be charged to the Members' capital accounts. No Member shall be obligated to restore any negative balance in his Capital Account. No Member shall be compensated for any positive balance in his Capital Account except as otherwise expressly provided herein.The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with the provisions of Regulations Section 1.704-1(b)(2) and shall be interpreted and applied in a manner consistent with such Regulations.The Members agree that the initial Capital Accounts of the Members on the date hereof equals the Initial Capital Contribution as set forth on Exhibit"A," as may be amended from time-to-time. Section 3.03 Additional Contributions. If, at any time or times hereafter, the Management Members shall determine that additional capital is required by the Company,the Management Members shall determine the amount of such additional capital and the anticipated time such additional capital will be required;whether such additional capital shall be provided by the Members by way of additional Capital Contributions or by way of loans from Members. No Member shall be obligated,at any time, to guarantee or otherwise assume or become liable for any obligations of the Company or to make any additional Capital Contributions advances or loans to the Company,unless such obligations are specifically accepted and agreed to by such Member. Section 3.04 The capital account of Orchard Park Manager,LLC, shall be funded with a transfer of real property (Lot 11) to the Company,and shall be valued at the sum of$1,000,000.00, and a$1,000,000.00 capital account. Said property shall be available for securing a development construction loan to be obtained for development purposes. In the event construction has not commenced on said lot within eighteen (18) months following the date of Company formation, Orchard Park Manager,LLC,shall have a first right to repurchase the land for the sum of $1,000,000.00 via a withdrawal of its Capital Account by return of Lot 11. ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS Section 4.01 Allocations of Profits and Losses.Profits and Losses, after deducting any Guaranteed Payment, shall be allocated among the Members in proportion to their Percentage Ownership Interests.Any special allocations necessary to comply with the requirements set forth in I.R.C. 704 and the corresponding Regulations,including,without limitation,the qualified income offset and minimum gain chargeback provisions contained therein,shall be made if the Management Members deem these actions to be appropriate. Section 4.02 Distributions. Subject to applicable law and any limitations elsewhere in this Agreement,the Management Members shall determine the amount and timing of all distributions of cash, or other assets,by the Company. Except as otherwise provided in this Agreement, all distributions shall be made to all of the Members,in proportion to their Percentage Ownership Interests. Except as otherwise provided in this Agreement, the decision as to whether to make distributions shall be within the sole discretion of the Management Members.All such distributions shall be made only to the Members who,according to the books and records of the Company, are the holders of record on the actual date of distribution. The Management Members may base a determination that a distribution of cash may be made on a balance sheet,profit and loss statement, cash flow statement of the Company or other relevant information. Neither the Company nor the Members shall incur any liability for making distributions. Section 4.03 Form of Distribution. No Member has the right to demand and receive any distribution from the Company in any form other than money, except as provided herein or by any Exhibit hereto, or any unanimously approved modification hereto or thereto. No Member may be compelled to accept from the Company a distribution of any asset in kind in lieu of a proportionate distribution of money being made to other Members except on the dissolution and winding up of the Company. Section 4.04 Criteria for Distribution. Proceeds from either lease or sale of the development property shall be as follows: (a) Payment of any and all construction, construction financing,including but not limited to principal and interest, and other costs approved by the Manager;then (b) Distribution to the Investor Members pro-rata to the extent of cash equity capital contributions up to the amount of$1,200,000.00;then (c) Profits are to be split 50/50 as between the Management Member, and the Investor Members. ARTICLE V MEETINGS AND VOTING Section 5.01 Notice of Meetings. If any action on the part of the Management Members is to be proposed at the meeting,then written notice of the meeting must be provided to each of the Management Member not less than ten (10) days or more than sixty (60) days prior to the meeting. Notice may be given in person,by fax,by first class mail, or by any other written communication, including e-Mail, charges prepaid, at the Management Members' address listed in Exhibit"A."The notice shall contain the date, time and place of the meeting and a statement of the general nature of this business to be transacted there. Section 5.02 Meetings. The Company shall have no predetermined annual or regular meetings of the Members. However, any Management Member or Members with a collective ownership percentage of 30% or more may call a meeting of the Management Members at any time. No action may be taken at a meeting that was not proposed in the notice of the meeting,unless all Management Members consent unanimously.Any meeting may be adjourned upon the vote,and subsequent approval, of the majority of the Management Membership Interests represented at the meeting. Section 5.03 Quorum. Members holding at least fifty-one percent (51%) of the Membership Interests in the Company represented in person,by telephone or by proxy, shall constitute a quorum at any meeting of Members. In the absence of a quorum at any such meeting, the Members may adjourn the meeting for a period not to exceed sixty days. Section 5.04 Voting. Except as expressly set forth elsewhere in this Agreement or otherwise required by law,all actions requiring the vote of the Management Members may be authorized upon the vote of those Members collectively holding a majority of the Management Membership Interests in the Company. The following actions require the unanimous vote of all Management Members,who are not the transferors of a Membership Interest: (i) making an amendment to the Certificate of Formation or this Agreement; (ii) absolving any Member from the obligation of making a capital contribution or returning money or property that was distributed to such Member in violation of law or this Agreement; (iii) approving the sale,transfer,assignment or exchange of a Member's interest in the Company and the admission of the transferee as a Member with full rights therein;and/or (iv) purchasing,by the Company or its nominee,the Membership Interest of a transferor Member. ARTICLE VI MANAGEMENT AND DUTIES Section 6.01 Management by Manager;Election and Appointment.The Company shall be managed by one or more Managers elected and/or appointed by the Management Members. Managers,who may be individuals or entities,may be chosen from among the Members or may be other individuals or entities who are not Members. The name of the initial Manager is Joe Huarte. The Management Members,by a majority vote, shall elect and appoint as many Managers as the Management Members determine shall be in the best interest of the Company, though not less than one. If there are two or more Managers,one of the Managers shall be elected to take the position of Chief Operating Manager by a majority vote of the Management Members.The Chief Operating Manager shall be held responsible for managing the operations of the Company and shall carry out the decisions of the Members and the Managers. Managers shall serve until they resign or their successors are duly elected and appointed by the Management Members. Section 6.02 Delegation of Powers.The Manager(s) are authorized on the Company's behalf to bind the Company to contracts and obligations, and to do or cause all acts to be done deemed necessary or appropriate to carry out or further the business of the Company.All decisions and actions of the Managers shall be made by majority vote of the Managers as provided in this Agreement. Except as otherwise provided in the Act or in this Agreement, the Managers have in their power to authorize or decide the following: (i) employment of persons or institutions for the operation and management of the Company affairs; (ii) execution of all checks, drafts and money orders for the payment of Company funds; (iii) delivery and execution of promissory notes, loans or security agreements; (iv) purchase or acquisition of Company assets; (v) sale,lease or other disposition of Company assets; (vi) granting security interests in the Company assets in exchange for capital; (vii) pre-payment or refinancing of any loan secured by the Company assets;and (viii) execution and delivery of all contracts, franchise agreements,licensing agreements, assignments, leases, and subleases which affect the Company assets. Section 6.03 Compensation.Any Manager whom renders services to the Company shall be entitled to compensation upon approval by the Management Member(s).The Company shall reimburse all direct out-of-pocket expenses incurred by the Manager(s)while managing the Company. Section 6.04 Indemnification.Unless otherwise provided by law or expressly assumed, a person who is a Member or Manager,or both, shall not be liable for the acts, debts, or liabilities of the Company, except to the extent any related loss results from fraud,gross negligence or willful or wanton misconduct on the part of such Member or the material breach of any obligation under this Agreement or of the fiduciary duties owed to the Company or the other Members by such Member. In addition, the Company shall, to the fullest extent allowed by law,indemnify, save and hold harmless and pay all judgments and claims against the Members,and each of such Member's agents, legal representatives,heirs, affiliates, successors,and/or assigns from,against,an in respect of any and all liability,loss, damage,and expense incurred or sustained by the indemnified party in connection with the activities of the Company or in dealing with third parties on behalf of the Company,including all costs and attorney's fees,as incurred,and any amounts expended in the settlement of any claims of liability,loss, or damage to the fullest extent allowed by law. ARTICLE VII ACCOUNTING, RECORDS,AND REPORTING Section 7.01 Books and Records. The Company shall maintain complete and accurate accounts in proper books of all transactions of or on behalf of the Company and shall enter or cause to be entered therein a full and accurate account of all transactions on behalf of the Company. The Company's books and accounting records shall be kept in accordance with such accounting principles (which shall be consistently applied throughout each accounting period) as the Management Members may determine to be convenient and advisable. The Company shall maintain at its principal office all of the following: (i) a current list of the full name and last known business or residence address of each Member in the Company,together with, for each Member,the Capital account,including entries to these accounts for contributions and distributions; (ii) the Ownership Interest,Percentage Ownership and Voting Interests; (iii) a copy of the Certificate of Formation and any and all amendments thereto together with executed copies of any powers of attorney pursuant to which the Certificate or any amendments thereto have been executed; (iv) copies of the Company's federal, state and local income tax or information returns and reports,if any, for the six most recent taxable years; (v) a copy of this Agreement and any and all amendments hereto together with executed copies of any powers of attorney pursuant to which this Agreement or any amendments thereto have been executed; (vi) copies of the financial statements of the Company,if any, for the six most recent fiscal years and the Company's books and records as they relate to the internal affairs of the Company for at least the current and past four fiscal years; (vii) true and full information regarding the status of the business and financial condition of the Company;and true and full information regarding the amount of cash and a description and statement of the agreed value of any other property or services contributed by each Member and which each Member has agreed to contribute in the future,and the date on which each became a Member. Section 7.02 Inspection of Books and Records. Each Member has the right, on reasonable request for purposes reasonably related to the interest of the person as a Member or a Manager, to: (a) inspect and copy during normal business hours any of the Company's records described in Section 7.01; and (b) obtain from the Company promptly after their becoming available a copy of the Company's federal, state,and local income tax or information returns for each fiscal year. Section 7.03 Accountings.As soon as is reasonably practicable after the close of each fiscal year,the Management Members shall make or cause to be made a full and accurate accounting of the affairs of the Company as of the close of that fiscal year and shall prepare or cause to be prepared a balance sheet as of the end of such fiscal year, a profit and loss statement for that fiscal year and a statement of Members' equity showing the respective Capital Accounts of the Members as of the close of such fiscal year and the distributions,if any,to Members during such fiscal year, and any other statements and information necessary for a complete and fair presentation of the financial condition of the Company,all of which the Managers shall furnish to each Member. In addition,the Company shall furnish to each Member information regarding the Company necessary for such Member to complete such Member's federal and state income tax returns.The Company shall also furnish a copy of the Company's tax returns to any Member requesting the same. On such accounting being made,profits and losses during such fiscal year shall be ascertained and credited or debited,as the case may be,in the books of account of the Company to the respective Members as herein provided. Section 7.04 Filings.The Management Members, at Company expense, shall cause the income tax returns for the Company to be prepared and timely filed with the appropriate authorities. The Management Members, at Company expense, shall also cause to be prepared and timely filed with appropriate federal and state regulatory and administrative bodies amendments to, or restatements of, the Certificate and all reports required to be filed by the Company with those entities under the Act or other then current applicable laws,rules,and regulations. If the Company is required by the Act to execute or file any document and fails, after demand, to do so within a reasonable period of time or refuses to do so,any Member may prepare, execute and file that document with the Idaho Secretary of State. Section 7.05 Bank Accounts. The Company shall maintain its funds in one or more separate bank accounts in the name of the Company, and shall not permit the funds of the Company to be co-mingled in any fashion with the funds of any other Person. Section 7.06 Partnership Representative.The Management Members may,in their exclusive discretion,appoint,remove and replace a Partnership Representative at any time or times. The Management Members shall from time-to-time. cause the Company to make such tax elections as they deem to be in the interests of the Company and the Members generally.The Partnership Representative,as described in I.R.C. � 6223(a), shall represent the Company (at the Company's expense) in connection with all examinations of the Company's affairs by tax authorities,including resulting judicial and administrative proceedings,and shall expend the Company funds for professional services and costs associated therewith. ARTICLE VIII DISSOLUTION AND WINDING UP Section 8.01 Dissolution.The Company shall be dissolved,its assets shall be disposed of, and its affairs wound up on the first to occur of. the entry of a decree of judicial dissolution pursuant to the Act;the unanimous approval of the Management Members;or the completion of the development. Section 8.02 Winding Up. On the occurrence of an event specified in Section 8.01, the Company shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets and satisfying the claims of its creditors.The Management Members shall be responsible for overseeing the winding up and liquidation of Company, shall take full account of the assets and liabilities of Company, shall cause such assets to be sold or distributed, and shall cause the proceeds therefrom,to the extent sufficient therefor, to be applied and distributed as provided in Section 8.04. The Management Members shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose addresses appear on the records of the Company. The Members shall be entitled to reasonable compensation for such services. Section 8.03 Distributions in Find.Any noncash assets distributed to the Members shall first be valued at their fair market value to determine the profit or loss that would have resulted if such assets were sold for such value. Such profit or loss shall then be allocated pursuant to this Agreement, and the Members' Capital Accounts shall be adjusted to reflect such allocations.The amount distributed and charged against the Capital Account of each Member receiving an interest in a distributed asset shall be the fair market value of such interest (net of any liability secured by such asset that such Member assumes or takes subject to). The fair market value of such asset shall be determined by the Management Members, or if any Management Member objects,by an independent appraiser (and any such appraiser must be recognized as an expert in valuing the type of asset involved) selected by a Majority of the Management Members. Section 8.04 Order of Payment of Liabilities on Dissolution.After a determination that all known debts and liabilities of the Company in the process of winding up,including,without limitation, debts and liabilities to Members who are creditors of the Company,have been paid or adequately provided for,the remaining assets shall be distributed to the Members in proportion to their positive Capital Account balances,after taking into account profit and loss allocations for the Company's taxable year during which liquidation occurs. Section 8.05 Adequacy of Payment.The payment of a debt or liability,whether the whereabouts of the creditor is known or unknown,shall have been adequately provided for if payment thereof shall have been assumed or guaranteed in good faith by one or more financially responsible Persons or by the United States government or any agency thereof, and the provision, including the financial responsibility of the Person,was determined in good faith and with reasonable care by the Members to be adequate at the time of any distribution of the assets pursuant to this Section.This Section shall not prescribe the exclusive means of making adequate provision for debts and liabilities. Section 8.06 Compliance with Regulations.All payments to the Members on the winding up and dissolution of Company shall be strictly in accordance with the positive capital account balance limitation and other requirements of Regulations Section 1.704-1(b)(2)(ii)(d),as the Management Members deem appropriate. Section 8.07 Limitations on Payments Made in Dissolution. Except as otherwise specifically provided in this Agreement, each Member shall only be entitled to look solely to the assets of the Company for the return of such Member's positive Capital Account balance and shall have no recourse for such Member's Capital Contribution or share of profits (on dissolution or otherwise) against any other Member. Section 8.08 Certificate of Cancellation. The Management Members conducting the winding up of the affairs of the Company shall cause to be filed in the office of, and on a form prescribed by the Idaho Secretary of State, a certificate of cancellation of the Certificate on the completion of the winding up of the affairs of the Company. ARTICLE IX EXCULPATION AND INDEMNIFICATION Section 9.01 Exculpation of Members. No Member shall be liable to the Company or to the other Members for damages or otherwise with respect to any actions taken or not taken in good faith and reasonably believed by such Member to be in or not opposed to the best interests of the Company,except to the extent any related loss results from fraud,gross negligence or willful or wanton misconduct on the part of such Member or the material breach of any obligation under this Agreement or of the fiduciary duties owed to the Company or the other Members by such Member. Section 9.02 Indemnification by Company. The Company shall indemnify,hold harmless and defend the Members,in their capacity as Members,Managers, or Officers, from and against any loss, expense, damage or injury suffered or sustained by them by reason of any acts or omissions arising out of their activities on behalf of the Company or in furtherance of the interests of the Company,including but not limited to any judgment,award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action,proceeding or claim,if the acts or omissions were not performed or omitted fraudulently or as a result of gross negligence or willful misconduct by the indemnified party. Reasonable expenses incurred by the indemnified party in connection with any such proceeding relating to the foregoing matters may be paid or reimbursed by the Company in advance of the final disposition of such proceeding upon receipt by the Company of (i)written affirmation by the Person requesting indemnification of its good-faith belief that it has met the standard of conduct necessary for indemnification by the Company;and (ii) a written undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such Person has not met such standard of conduct,which undertaking shall be an unlimited general obligation of the indemnified party but need not be secured. Section 9.03 Insurance.The Company shall have the power to purchase and maintain insurance on behalf of any Person who is or was a Member or an agent of the Company against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person's status as a Member or an agent of the Company,whether or not the Company would have the power to indemnify such Person against such liability under Section 10.02 or under applicable law. ARTICLE X MISCELLANEOUS Section 10.01 Management Members shall be entitled to the following: a. Leasing Commissions at market rates, b. Financing Placement Fees at market rates; C. Development Fees at market rates; d. Reconveyance Broker fees (at market rates or pursuant to the line item budget identified in the sources and uses pro forma). Section 10.02 Authority. This Agreement constitutes a legal,valid, and binding agreement of the Member,enforceable against the Member in accordance with its terms. The Member is empowered and duly authorized to enter into this Agreement (including the power of attorney herein) under every applicable governing document,partnership agreement, trust instrument, pension plan, charter, certificate of incorporation,bylaw provision,or the like.The Person,if any, signing this Agreement on behalf of the Member is empowered and duly authorized to do so by the governing document or trust instrument,pension plan,charter, certificate of incorporation,bylaw provision,board of directors or stockholder resolution or the like. Section 10.03 Indemnification by the Members. Each Member hereby agrees to indemnify and defend the Company,the other Members and each of their respective employees,agents, partners,members, shareholders,officers and directors and hold them harmless from and against any and all claims,liabilities,damages,costs,and expenses(including,without limitation,court costs and attorney's fees and expenses) suffered or incurred on account of or arising out of any breach of this Agreement by that Member. Section 10.04 Disputes among Members. The Members agree that in the event of any dispute or disagreement solely between or among any of them arising out of,relating to or in connection with this Agreement or the Company or its organization, formation,business or management ("Member Dispute"),the Members shall use their best efforts to resolve any dispute arising out of or in connection with this Agreement by good-faith negotiation and mutual agreement.The Members shall meet at a mutually convenient time and place to attempt to resolve any such dispute. However,in the event that the Members are unable to resolve any Member Dispute, such parties shall first attempt to settle such dispute through a nonbinding mediation proceeding. In the event any party to such mediation proceeding is not satisfied with the results thereof,then any unresolved disputes shall be finally settled in accordance with an appropriate judicial proceeding with jurisdiction and venue in Ada County,Idaho. Section 10.05 Notices. Except as otherwise expressly provided herein,any notice, consent, authorization or other communication to be given hereunder shall be in writing and shall be deemed duly given and received when delivered personally,when transmitted by facsimile if receipt is acknowledged by the addressee, one business day after being deposited for next-day delivery with a nationally recognized overnight delivery service,or three business days after being mailed by first class mail, charges and postage prepaid,properly addressed to the party to receive such notice at the address set forth in the Company's records. Notices may also be sent via electronic mail to the last known email address for the Member,and shall be deemed duly given and received twenty-four hours after the email is sent. Section 10.06 Severability. If any provision of this Agreement,or the application of such provision to any Person or circumstance,shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement,or the application of such provision to Persons or circumstances other than those to which it is held to be invalid or unenforceable, shall not be affected thereby. Section 10.07 Binding Effect. Subject to Section 2.07,this Agreement shall bind and inure to the benefit of the parties and their respective Successors. Section 10.08 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original,but all of which together shall constitute one and the same instrument. Section 10.09 Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between or among the parties,regarding the subject matter hereof. Section 10.10 Further Assurances. Each Member shall provide such further information with respect to the Member as the Company may reasonably request, and shall execute such other and further certificates,instruments and other documents,as may be necessary and proper to implement, complete and perfect the transactions contemplated by this Agreement. Section 10.11 Headings; Gender;Number;References. The headings of the Sections hereof are solely for convenience of reference and are not part of this Agreement.As used herein, each gender includes each other gender, the singular includes the plural and vice versa,as the context may require. All references to Sections and subsections are intended to refer to Sections and subsections of this Agreement, except as otherwise indicated. Section 10.12 Parties in Interest. Except as expressly provided in the Act,nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any Persons other than the Members and their respective Successors nor shall anything in this Agreement relieve or discharge the obligation or liability of any third Person to any party to this Agreement,nor shall any provision give any third Person any right of subrogation or action over or against any party to this Agreement. Section 10.13 Amendments.All amendments to this Agreement shall be in writing and signed by all of the Members to the agreement at the time of the amendment. Section 10.14 Attorneys' Fees. In any dispute between or among the Company and one or more of the Members,including,but not limited to,any Member Dispute,the prevailing party or parties in such dispute shall be entitled to recover from the nonprevailing party or parties all reasonable fees, costs and expenses including,without limitation,attorneys'fees,costs and expenses, all of which shall be deemed to have accrued on the commencement of such action,proceeding or arbitration. Attorneys' fees shall include,without limitation, fees incurred in any post-award or post- judgment motions or proceedings, contempt proceedings,garnishment,levy, and debtor and third party examinations, discovery,and bankruptcy litigation, and prevailing party shall mean the party that is determined in the arbitration,action or proceeding to have prevailed or who prevails by dismissal, default or otherwise. Section 10.15 Remedies Cumulative. Subject to Section 10.04,remedies under this Agreement are cumulative and shall not exclude any other remedies to which any Member may be lawfully entitled. Section 10.16 Jurisdiction and Venue/Equitable Remedies.The Company and each Member hereby expressly agrees that if,under any circumstances,any dispute or controversy arising out of or relating to or in any way connected with this Agreement shall,notwithstanding Section 10.04,be the subject of any court action at law or in equity, such action shall be filed exclusively in the courts of the State of Idaho or of the United States of America located in the county of Ada as selected by the Member that is the plaintiff in the action, or that initiates the proceeding or arbitration. Each Member agrees not to commence any action, suit or other proceeding arising from, relating to, or in connection with this Agreement except in such a court and each Member irrevocably and unconditionally consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action,and hereby grants jurisdiction to such courts and to any appellate courts having jurisdiction over appeals from such courts or review of such proceedings.Because the breach of the provisions of this Section would cause irreparable harm and significant injury to the Company and the other Members,which would be difficult to ascertain and which may not be compensable by damages alone, each Member agrees that the Company and the other Members will have the right to enforce the provisions of this Section by injunction, specific performance or other equitable relief in addition to any and all other remedies available to such party or parties without showing or proving any actual damage to such parties. Members will be entitled to recover all reasonable costs and expenses,including but not limited to all reasonable attorneys' fees,expert and consultants' fees,incurred in connection with the enforcement of this Section. Section 10.17 Independent Counsel. Each Member has read this Agreement and acknowledges that: (a) counsel for the Company prepared this Agreement on behalf of the Company; (b) such Member has been advised that a conflict may exist between such Member's interests,the interests of the other Members,and/or the interests of the Company; this Agreement may have significant legal,financial planning,and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity, to seek the advice of independent counsel regarding such consequences. IN WITNESS NXIHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED Orchar Park nager,LLC By: _70-C HV442--mr Its: Mike Presser Tony Tseng (c) this Agreement may have significant legal, financial planning,and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised, and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED Orchard Park Manager,LLC By: Its: Mike Presser 02/14/2022 Tony Tseng (c) this Agreement may have significant legal, financial planning, and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised, and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED Orchard Park Manager,LLC By: Its: Mike Presser Tony Tseng this Agreement may have significant legal,financial planning,and/or tax consequences to such Member, (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED --P 01,Naweof member] [Date of si guature] [Name,of member] [Date of signature] (Name of member] [Date of signature] (c) this Agreement may have significant legal, financial planning, and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised, and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED Feb 3 2022 Noreen F. Shook [Name of member] [D ate of signature] (Name of member) [Date of signatiss-o) JName of member] /Date of signature] C) IIIIS Agreement may have Tel-al,financral planning and/or(;)N-, consequelic"to f;IUch Nlember; (d) counsel for the Company has tuadc no representations to such Member regarding�,,uch Conscquences;and (e) such Mernber has been advised,and hi., had the.opportutiltv,to seek- the .1dvice of independent counsel regarding§uch consequences, I\ X\'IINI"-,S WHERE'OF, this Limited lAability Company Operating A�7ecntent has bect, du1% t'v cijtvd lix or on behalf of the parties hereto a-,crl the date first above written. SIGNATURE DxrED Ax flo,e if Plezrib er'", Date qf s�,,walitre,- ryas ol ier Dale of-r kwatlm' (c) this Agreement may have significant legal,financial planning,and/or tax consequences to such Member, (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED 2 - - 72-c= 2. (Name of member] [Date of signature/ (Name of member] (Date of signature] [Name of member] /Date of signature] (-A ig, and x V-1 this Agreement may have significant legal, financial planning, ta, consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity, to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED A [Nance ofmemberjl [Date of jignafia Vj' liVame qj*wez)vber1 ID ate of jignatuirl [Name qfmemberl IDate of jignamn] (c) this Agreement may have significant legal,financial planning, and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNAT70RE DATED Orchard Park Manager,LLC By: Its: Mike Presser Tony Tseng this Agreement may have significant legal, financial planning, and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences; and (e) such Member has been advised,and has had the opportunity, to seek the advice of independent counsel regarding such consequences. IN WITNESS WHERFOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED 04 W% By: Its: Mike Presser Tony Tsent (c) this Agreement may have significant legal, financial planning, and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences; and (e) such Member has been advised, and has had the opportunity, to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNA URE DATED CZ The Le rr an ami 7rust Dated 10/10/17 By: Mark Lehman, l rustee [Name of member] (Date of signature] [Name of member] (Date of signature] [Name of member] [Date of signature] this Agreement may have significant legal,financial planning,and/or tax consequences to such Member; (d) counsel for the Company has made no representations to such Member regarding such consequences;and (e) such Member has been advised,and has had the opportunity,to seek the advice of independent counsel regarding such consequences. IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement has been duty executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED d lame of member' nawre7[Date of sig r7 [ATame qfmembm' [Date qf si [Name oj*member." [Date of sigtaivre,:' (c) this Agreement may, have significant legal, financial planning,and/or tax consequences to such'Member; (d) counsel for the Company has made no representations to such Member regarding such consequence.,-,-.and (e) such Member has been advised,and has had the opportunity,to seek the advice of independent counsel regarding such consequences. 1\�, ' XVIT1\1ESS WHEREOF, this Limited Liability Company Operating Agreement has been duly executed by or on behalf of the parties hereto as of the date first above written. SIGNATURE DATED T , e oftiie j�erj' fl-)ate qf si gnalitrej Naltle ref ivmihe [Dale qfsi,gnalurej s WIN [Date of ianaloirj ,Natue qf ' bet]