CC - Affidavit Authority to Sign SCS Investments LLC RESTATED THIRD AMENDMENT TO OPERATING AGREEMENT
OF SCS INVESTMENTS LLC
(Replacement of a Manager/Power of Attorney/Addition of Officers)
THIS RESTATED THIRD AMENDMENT TO THE OPERATING AGREEMENT OF
SCS INVESTMENTS LLC ("Amendment") is made by Steven C. Smith("SS")and Rebecca B.
Smith("RS") dated effective as of October 25, 2018. The undersigned representing the majority
of the interests of members of SCS Investments LLC, an Idaho limited liability company
("Company"),hereby make the following amendment to the Operating Agreement dated
effective March 22, 2004 ("Operating Agreement"):
Recitals
A. SCS Investments LLC, an Idaho limited liability company ("Company")was formed
pursuant to that certain Operating Agreements of SCS Investments LLC dated effective
March 22,2004.
B. SS and RS, as the sole Members in the Company, constitute a"Majority Vote"required
to amend the Operating Agreement pursuant to Sections 2.12 and 15.12.
C. The Members desire to add SCS Management LLC as a Manager, and remove Hawkins-
Smith Management,Inc. as a Manager;
D. The Members desire to authorize the appointment of one or more individuals to act as
legal agents under a Power of Attorney; and
E. The Members desire to appoint Officers of the Company, listed in Schedule 1, granting
such Officers the authority as described below.
Agreement
1. This Restated Third Amendment shall supersede and replace any and all previous Third
Amendments.
2. Section 3.3 is Amended as follows:
a. SCS Management LLC is hereby added as a Manager to replace Hawkins-Smith
Management, Inc.;
b. Hawkins-Smith Management, Inc. is hereby removed as a Manager;
c. Steven C. Smith shall remain as a Manager;
Restated Third Amendment to Operating Agreement 1
of SCS Investments LLC
d. Section 3.3 of the Operating Agreement shall allow for two(2) Managers. All
remaining parts of Section 3.3 shall remain the same.
3. A new Section 3.9 is added, and shall read as follows:
Section 3.9 Attorney in Fact. Any Member or Manager may make,constitute and appoint one
or more individuals to serve as its true and lawful attorney(s) in fact in name,place and stead,
and such attorney(s) in fact shall have full power and authority to manage the business affairs of
the Company and to make all decisions with respect to such management as provided herein and
as provided within the instrument making such appointment.
4. Anew Section 3.10 is added, and shall read as follows:
Section 3.10 Officers. The Manager(s) may, by unanimous vote, delegate all or some of their
authority to manage the business and affairs of the Company to one or more Officers, who may,
but are not required to, be a Member(s) or Manager(s) of the Company. In the event that Officers
are appointed,the following provisions shall apply. The Officers of the Company shall be a Chief
Executive Officer, President, Chief Financial Officer and Secretary. The Company may also have
such other Officers as may be appointed by the Manager(s). Any number of offices may be held
by the same person, except that the post of Secretary and President shall not be held by the same
individual. The Officers of the Company shall be elected by a majority vote of the Manager(s)and
each shall serve at the pleasure of the Manager(s). Election or appointment of any Officer shall not
of itself create a contract right. A Manager may also be an Officer. Officers of the Company shall
receive such compensation as the Manager(s) may approve from time to time. Any Officer may
be removed, either with or without cause, by the Manager(s), at any meeting thereof, or by any
Officer upon whom such power of removal may be conferred by the unanimous vote of the
Manager(s). Any Officer may resign at any time by giving written notice to the Manager(s) and
such resignation shall take effect upon the receipt of such notice or at any later time specified
therein. A vacancy in any office because of death, resignation, removal, disqualification, or any
other cause shall be filled in the manner prescribed in this Agreement. The Officers appointed and
elected by the Manager(s) shall manage the Company's operations under the direction and
supervision of the Manager(s),as further described below and as limited by Section 4.1.
(a) The Chief Executive Officer and shall have all general powers and duties of
management and shall direct overall strategy of the Company.
i. Without limiting the foregoing, the Chief Executive Officer is authorized
on the Company's behalf to make all decisions regarding the following
matters (except for those decisions requiring Member approvals or
delegation by the Members as stated in Section 4.1):
a. The development, sale, lease or other disposition of the Property;
b. The purchase or other acquisitions of assets of all kinds;
c. The management of all or any part of the Company's Property;
d. The borrowing of money and the granting of security interests in the
Property (including loans from Members);
Restated Third Amendment to Operating Agreement 2
of SCS Investments LLC
e. The prepayment, refinancing, or extension of any mortgage
affecting the Property;
f. The compromise or release of any of the Property's claims or debts;
and
g. The employment of persons,firms,or corporations for the operation
and management of the Property;
In the exercise of the Chief Executive Officer's management powers, the President is authorized
to execute and deliver:
h. All contracts, conveyances, assignments, leases, subleases,
franchise agreements, licensing agreements, management contracts
and maintenance contracts covering or affecting the Property
i. All checks, drafts, and other orders for the payment of Company
funds;
j. All promissory notes, mortgages, deeds, deed of trust, security
agreements, and other similar documents; and
k. All other instruments of any kind or character relating to the
Company's affairs whether like or unlike the foregoing.
(b) The President shall, subject to the control of the Manager(s), have general
supervision,direction and control of the day-today business and the Officers of
the Company. The President shall have the general powers and duties of
management and shall have such other powers and duties as may be from time
to time assigned by the Manager(s) of the Company.
j. Without limiting the foregoing, the President is authorized on the
Company's behalf to make all decisions regarding the following matters
(except for those decisions requiring Member approvals or delegation by
the Members as stated in Section 4.1):
a. The development, sale, lease or other disposition of the Property;
b. The purchase or other acquisitions of assets of all kinds;
c. The management of all or any part of the Company's Property;
d. The borrowing of money and the granting of security interests in the
Property (including loans from Members);
e. The prepayment, refinancing, or extension of any mortgage
affecting the Property;
f. The compromise or release of any of the Property's claims or debts;
and
g. The employment of persons, firms,or corporations for the operation
and management of the Property;
In the exercise of the President's management powers, the President is authorized to execute and
deliver:
Restated Third Amendment to Operating Agreement 3
of SCS Investments LLC
h. All contracts, conveyances, assignments, leases, subleases,
franchise agreements, licensing agreements, management contracts
and maintenance contracts covering or affecting the Property
i. All checks, drafts, and other orders for the payment of Company
funds;
j. All promissory notes, mortgages, deeds; deed of trust, security
agreements,and other similar documents; and
k. All other instruments of any kind or character relating to the
Company's affairs whether like or unlike the foregoing.
(c) In the absence or disability of the President, the Chief Financial Officer shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon the President. The Chief
Financial Officer shall be the principal financial officer of the Company and be
responsible for to keep and cause to be dept adequate and correct accounts of
properties and business transactions of the Company. The Chief Financial
Officer shall have such other powers and perform such other duties as from time
to time may be prescribed for them respectively by the Manager(s), the
President, or this Agreement.
(d) The Secretary shall keep or cause to be kept at the principal office a book of
minutes of all meetings and actions of the Members, Managers, and Officers,
with the time and place of holding such meetings, the names of those present,
and the proceedings thereof. The Secretary shall keep or cause to be kept at the
principal office copies of this Agreement, an updated list of all Members and
their respective Membership Interests and addresses, of all Managers and their
respective Membership Interests and addresses, all Managers and their
respective addresses, and all Officers and their respective addresses. The
Secretary shall give notice,or cause notice to be given,to all meetings for which
notice is required. If the Secretary fails to act, notice may be given by any other
Officer of the Company.The Secretary shall maintain records of the mailing or
other delivery of notices and documents to Members, Managers, and Officers
as prescribed by this Agreement or the Members.
(e) Indemnity of the Officers. The Company shall indemnify, defend and hold
harmless its Officers to the fullest extent permitted by law, provided that such
action in any given situation was taken in accordance with the Operating
Agreement and applicable law.
(f) Standard of Conduct for Officers. No Officer shall be liable to the Company or
to any Manager or Member for any loss or damage sustained by the Company
or any Manager or Officer unless the loss or damage shall have been the result
of gross negligence or willful misconduct of the Officer. The Officers of the
Company shall not be liable to third parties for losses or damages for conduct
as an Officer except to the extent that the Act,as it now exists or may hereafter
be amended, prohibits elimination or limitation of Officer liability.
Restated Third Amendment to Operating Agreement 4
of SCS Investments LLC
The Officers appointed, including the Chief Executive Officer, President, and the Secretary, are
identified and listed on Schedule 1, which is included in this Amendment. A Statement of
Authority listing the Officers appointed and elected by the Manager(s)may be filed with the Idaho
Secretary of State pursuant to Idaho Code Section 30-25-302(a). The rank of the Officers is fixed
by the order in which they are listed on Schedule 1. Upon the death, resignation or removal of an
Officer, the Manager(s), upon the filling of the vacancy created thereby, shall amend this
Agreement by replacing Schedule 1 attached hereto with an updated list of all such Officers and
may file an updated Statement of Authority with the Idaho Secretary of State reflecting the change
in Officers.
Restated Third Amendment to Operating Agreement 5
of SCS Investments LLC
SCHEDULE 1
1. Chief Executive Officer. Steven C. Smith
2. President. Michael A. Hall
3. Chief Financial Officer. April Bull
4. Secretary. April Bull
(End of Text; Signature on the Following Page)
Restated Third Amendment to Operating Agreement 6
of SCS Investments LLC
SIGNED effective as of the Effective Date.
MEMBERS:
C. RE7BtGCA B. SMITH
Manager and r— Member
Restated Third Amendment to Operating Agreement 7
of SCS Investments LLC