PZ - Second Amended Operating Agreement North American Management LLC SECOND AMENDED AND RESTATED OPERATING AGREEMENT
FOR
NORTH AMERICAN MANAGEMENT, LLC
This Second Amended and Restated Operating Agreement("Agreement")is effective as of January 1,2020
(the "Effective Date") and made by and among the parties listed on the signature page hereof("Parties")
with reference to the following facts:
A. On October 1, 2002, Articles of Organization of North American Management, LLC ("the
Company"), a limited liability company organized under the laws of the State of Utah, were filed
with Utah State of Utah Department of Commerce and the Members of the company entered into
an Operating Agreement (the "Original Agreement")for the Company on October 12002.
B. WHEREAS on January 1, 2014 the parties adopted the First Amended and Restated Operating
Agreement which set forth the following changes to the Original Agreement:
Section 5.1 was changed to read:
5.1 Management. The Company shall managed as set forth in the Articles and the
management is vested in the managers. As at the Effective Date the co-managers are John
Robertson and James Petersen and each alone have the power to transact the business of the
Company.
NOW THEREFORE, the parties by this agreement set forth the following changes to the First Amended
and Restated Operating Agreement:
1. EXHIBIT"A "of Second Amended and Restated Operating Agreement replaces Exhibit "A" of First
Amended and Restated Operating Agreement.
2. Any reference in the Original Agreement to Exhibit A will at the Effective Date refer to Exhibit A of
this Agreement and any reference in the First Amended and Restated Operating Agreement will at the
Effective Date refer to Exhibit A of this Agreement.
3.All other parts and sections of the Original Agreement and the First Amended and Restated Operating
remain unchanged and are in full force as at the Effective Date.
IN WITNESS WHEREOF,the parties have executed the Agreement as of the Effective Date.
GOLD STREAM, LLC
A Utah limit Liability Company
By: �c
Its: /�7/�r✓.•dQR—
ALM Holdings L1,��
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EXHIBIT"A"
NORTH AMERICAN MANAGEMENT, LLC
LIST OF MEMEBRS,CAPITAL,AND PERCENTAGES
Member's name Capital Percentages
GOLD STREAM, LLC $ 100.00 67%
ALM HOLDINGS LLC $100.00 33%
FIRST AMENDED AND RESTATED OPERATING AGREEMENT
FOR
NORTH AMERICAN MANAGEMENT, LLC
This First Amended and Restated Operating Agreement ("Agreement") is effective as of January 1, 2014
(the "Effective Date")and made by and among the parties listed on the signature page hereof("Parties")
with reference to the following facts:
A. On October 1, 2002, Articles of Organization of North American Management, LLC ("the
Company"), a limited liability company organized under the laws of the State of Utah,were filed
with Utah State of Utah Department of Commerce and the Members of the company entered into
an Operating Agreement(the "Original Agreement")or the Company on October 12002.
NOW THEREFORE, the parties by this Agreement set forth the following changes to the Original
Agreement:
1. Section 5.1 is hereby changed to read:
5.1 Management. The Company shall managed as set forth in the Articles and the
management is vested in the managers. As at the Effective Date the co-managers are John
Robertson and James Petersen and each alone have the power to transact the business of the
Company.
2. Exhibit A of this Agreement replaces Exhibit A the Original Agreement.
3. Any reference in the Original Agreement to Exhibit A will at the Effective Date refer to Exhibit A of
this Agreement.
4. All other parts and sections of the Original Agreement remain unchanged and are in full force as at
the Effective Date.
IN WITNESS WHEREOF,the parties have executed the Agreement as of the Effective Date.
GOLD STREAM, LLC
A Utah limited Liability Company
By:
Its: 1V119-A119 is 2
EXHIBIT A
LIST OF MEMBERS,CAPITAL,AND PERCENTAGES
Members name Capital Percentages
GOLD STREAM,LLC $100.00 100%
OPERATING AGREEMENT
OF
NORTH AMERICAN MANAGEMENT,LLC
THIS OPERATING AGREEMENT (this "Agreement") is entered into OCTOBER 1,
2002, by and among the signatories hereto, who have agreed to organize and operate a limited
liability company in accordance with the provisions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties, intending legally
to be bound, agree as follows:
SECTION 1
DEFINED TERMS
In this Agreement, the following capitalized terms shall have the meaning specified in this
Section 1. Other terms may be defined in the text of this Agreement; and, throughout this
Agreement, those terms shall have the meanings respectively ascribed to them.
"Act" means the Utah Revised Limited Liability Company Act, Utah Code Ann. 1953, as
amended from time to time.
"Adjusted Capital Account Deficit" means, with respect to any Interest Holder, the deficit
balance, if any, in the Interest Holder's Capital Account as of the end of the relevant taxable year,
after giving effect to the following adjustments:
(i) the deficit shall be decreased by the amounts which the Interest Holder is obligated to
restore pursuant to Section 4.4.2 of this Agreement or is deemed obligated to restore pursuant to
Regulation Sections 1.704-2(g)(1) and (i)(5) (i.e., the Interest Holder's share of Minimum Gain and
Member Minimum Gain); and
(ii) the deficit shall be increased by the items described in Regulation Sections
1.704-1(b)(2)(10(d)(4), (5) and(6).
"Affiliate"means, with respect to any Member, any Person: (i)which owns more than 50%
of the voting interests in the Member, or (ii) in which the Member owns more than 50% of the
voting interests, or(ill) in which more than 50% of the voting interests are owned by a Person who
has a relationship with the Member described in clause (i) or(ii) above.
"Agreement"means this Operating Agreement, as amended from time to time.
"Articles"means the Company's Articles of Organization.
"Capital Account" means the account to be maintained by the Company for each Interest
Holder in accordance with the following provisions:
491051.1
(i) An Interest Holder's Capital Account shall be credited with the Interest Holder's Capital
Contributions, the amount of any Company liabilities assumed by the Interest Holder(or which are
secured by Company property distributed to the Interest Holder), the Interest Holder's allocable
share of Profit and any item in the nature of income or gain specially allocated to the Interest
Holder pursuant to the provisions of Section 4 (other than Section 4.3.3).
(ii) An Interest Holder's Capital Account shall be debited with the amount of money and
the fair market value of any Company property distributed to the Interest Holder, the Interest
Holder's allocable share of Loss, and any item in the nature of expenses or losses specially
allocated to the Interest Holder pursuant to the provisions of Section 4 (other than Section 4.3.3).
(ill) If any Interest is transferred pursuant to the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the extent the Capital Account is
attributable to the transferred Interest. If the book value of Company property is adjusted pursuant
to Section 4.3.3, the Capital Account of each Interest Holder shall be adjusted to reflect the
aggregate adjustment in the same manner as if the Company had recognized gain or loss equal to
the amount of such aggregate adjustment.
(iv) It is intended that the Capital Accounts of all Interest Holders shall be maintained in
compliance with the provisions of Regulation Section 1.704-1(b), and all provisions of this
Agreement relating to the maintenance of Capital Accounts shall be interpreted and applied in a
manner consistent with that Regulation.
"Capital Contribution:" means the total amount of cash and the fair market value of any
other assets contributed (or deemed contributed under Regulation Section 1.704-1(b)(2)(iv)(d)) to
the Company by a Member, net of liabilities assumed or to which the assets are subject.
"Cash Flow" means all cash funds derived from operations of the Company (including
interest received on reserves), without reduction for any non-cash charges,but less cash funds used
to pay current operating expenses and to pay or establish reasonable reserves for future expenses,
debt payments, capital improvements, and replacements as determined by the Members. Cash
Flow shall not include Capital Proceeds but shall be increased by the reduction of any reserve
previously established.
"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.
"Company" means the limited liability company formed in accordance with this
Agreement.
"Division" means the Division of Corporations and Commercial Code of the Department
of Commerce of the State of Utah.
"Interest" means a Person's share of the Profits and Losses of, and the right to receive
distributions from, the Company.
491051.1 2
"Interest Holder"means any Person who holds an Interest, whether as a Member or as an
unadmitted assignee of a Member.
"Involuntary Withdrawal" means, with respect to any Member, the occurrence of any of
the death, retirement, bankruptcy, resignation, expulsion, or dissolution or a Member, or any other
event that terminates the continued eligibility for membership of a Member in the Company.
"Member" means each Person signing this Agreement and any Person who subsequently
signs this Agreement and is admitted as a Member of the Company.
"Member Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(i) for
"partner nonrecourse debt minimum gain."
"Membership Rights"means all of the rights of a Member in the Company, including that
Member's: (1) Interest, (ii) right to inspect the Company's books and records, (iii) right to
participate in the management of and vote on matters coming before the Company to the extent
permitted by the Act, the Articles and this Agreement, and (iv) right to act as an agent of the
Company,unless this Agreement or the Articles provide otherwise.
"Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(d). Minimum
Gain shall be computed separately for each Interest Holder in a manner consistent with the
Regulations under Code Section 704(b).
"Negative Capital Account"means a Capital Account with a balance of less than zero.
"Percentage"means, as to a Member, the percentage set forth after the Member's name on
Exhibit A, as amended from time to time, and as to an Interest Holder who is not a Member, the
Percentage of the Member whose Interest has been acquired by such Interest Holder, to the extent
the Interest Holder has succeeded to that Member's Interest.
"Person" means and includes an individual, corporation, partnership, association, limited
liability company, trust, estate, or other entity.
"Positive Capital Account"means a Capital Account with a balance greater than zero.
"Profit" and "Loss" mean, for each taxable year of the Company (or other period for
which Profit or Loss must be computed), the Company's taxable income or loss determined in
accordance with Code Section 703(a),with the following adjustments:
(i) all items of income, gain, loss, deduction, or credit required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in computing taxable income or loss; and
(ii) any tax-exempt income of the Company, not otherwise taken into account in computing
Profit or Loss, shall be included in computing taxable income or loss; and
491051.1 3
(Ili) any expenditures of the Company described in Code Section 705(a)(2)(B) (or treated
as such pursuant to Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account
in computing Profit or Loss, shall be subtracted from taxable income or loss; and
(iv) gain or loss resulting from any taxable disposition of Company property shall be
computed by reference to the adjusted book value of the property disposed of, notwithstanding the
fact that the adjusted book value differs from the adjusted basis of the property for federal income
tax purposes; and
(v) in lieu of the depreciation, amortization, or cost recovery deductions allowable in
computing taxable income or loss, there shall be taken into account the depreciation computed-
based upon the adjusted book value of the asset; and
(vi) notwithstanding any other provision of this definition, any items which are specially
allocated pursuant to Section 4.3 of this Agreement shall not be taken into account in computing
Profit or Loss.
"Regulation"means the income tax regulations, including any temporary regulations, from
time to time promulgated under the Code.
"Transfer", when used as a noun, means any voluntary sale, hypothecation, pledge,
assignment, attachment, give, or other transfer, and, when used as a verb,means voluntarily to sell,
hypothecate, pledge, assign, gift, or otherwise transfer.
"Voluntary Withdrawal- means a Member's dissociation with the Company by means
other than a Transfer or an Involuntary Withdrawal.
SECTION 2
FORMATION AND NAME; OFFICE; PURPOSE; TERM
2.1. Organization. The parties hereby organize a limited liability company under the
Act and the provisions of this Agreement and, for that purpose, have caused or will cause Articles
to be prepared, executed, and filed with the Division.
2.2. Name of the Company. The name of the Company shall be "NORTH
AMERICAN MANAGEMENT, LLC." The Company may do business under that name and
under any other name or names upon which the Members agree. If the Company does business
under a name other than that set forth in Articles, then the Company shall register such assumed
name as required by law.
2.3. Purpose. The Company is organized for the purposes set forth in the Articles. The
Members expressly intend that the Company shall always be classified and operated as a
partnership for federal income tax purposes. Each Member hereby agrees to execute and deliver
to the Company, or file with the Internal Revenue Service, any election or other document, as
reasonably determined by any Member to be necessary or desirable, confirming or implementing
the provisions of this paragraph.
491051.1 4
2.4. Term. The term of the Company began or will begin upon the filing of the Articles
with the Division and shall continue for the term set forth in the Articles, unless the Company's
existence is sooner terminated pursuant to Section 7 of this Agreement.
2.5. Registered Office and Agent. The name of the Company's registered agent and the
registered office of the registered agent in the State of Utah shall be as set forth in the Articles.
2.6. Members. The name, address and Percentage of each Member are set forth on
Exhibit A.
SECTION 3
MEMBERS; CAPITAL; CAPITAL ACCOUNTS
3.1. Initial Capital Contributions. Upon the execution of this Agreement, the Members
shall contribute to the Company cash in the amounts respectively set forth on Exhibit A.
3.2. Additional Capital Contributions. No Member shall have any personal liability for
any obligation of the Company. However, to the extent additional contributions to capital are
needed, as reasonably determined by the Members, each Member will contribute its pro-rata
share thereof(in accordance with their respective Interests) not later than 15 days before the date
such funds are needed as determined by the Members, provided that at least 15 days notice in
writing and reasonably satisfactory evidence of the need therefor shall be provided. If and so
often as any Member fails to advance its share of such funds within the time herein stipulated,
one or more of the non-defaulting Members (on a pro-rata basis if more than one Member elects
to do so) may advance the defaulting Member's share, and each such contributing Member may
elect to either (1) treat his advance as a loan to such defaulting Member bearing interest at a rate
4% in excess of the generally prevailing national prime rate (or its equivalent) in effect from time
to time, but not to exceed the highest rate allowable at law, secured by a lien against the
defaulting Member's Interest; or (2) elect to have the respective Interests of the parties adjusted
in accordance with their total capital contributions then to date. Any such loan shall be repaid
within 90 days after the non-defaulting Member's first advance to which such loan relates, failing
which the non-defaulting Member may foreclose such lien as a mortgage of real property. In the
event of any loan arising under clause (1) above, any profits, cash or other distribution to the
defaulting Member attributable to its Interest shall be automatically applied to the repayment of
such loan until the same has been repaid in full.
3.3. No Interest on Capital Contributions. Neither Members nor Interest Holders shall
be paid interest on their Capital Contributions.
3.4. Return of Capital Contributions. Except as otherwise provided in this Agreement,
no Interest Holder shall have the right to receive any return of any Capital Contribution.
3.5. Form of Return of Capital. Except as otherwise provided in this Agreement, if an
Interest Holder is entitled to receive a return of a Capital Contribution, the Interest Holder shall not
have the right to receive anything but cash in return of the Interest Holder's Capital Contribution,
irrespective of the nature of the Member's contribution.
491051.1 5
3.6. Capital Accounts. A separate Capital Account shall be maintained by the Company
for each Interest Holder.
3.7. Loans. Any Member may, at any time, make or cause a loan to be made to the
Company in any amount and on those terms upon which the Company and the Member agree.
SECTION 4
PROFIT,LOSS,AND DISTRIBUTIONS
4.1. Distribution of Cash Flow. Cash Flow for each taxable year of the Company shall
be distributed to the Interest Holders in proportion to their Percentages no later than seventy-five
(75) days after the end of the taxable year.
4.2. Allocation of Profit or Loss. After giving effect to the special allocations set forth
in Section 4.3, for any taxable year of the Company, Profit or Loss shall be allocated to the Interest
Holders in proportion to their Percentages.
4.3. Regulatory Allocations
4.3.1. Qualified Income Offset. No Interest Holder shall be allocated Losses or
deductions if the allocation causes the Interest Holder to have an Adjusted Capital Account Deficit.
If an Interest Holder receives (1) an allocation of Loss or deduction (or item thereof) or (2) any
distribution, which causes the Interest Holder to have an Adjusted Capital Account Deficit at the
end of any taxable year, then all items of income and gain of the Company (consisting of a pro rata
portion of each item of Company income, including gross income and gain) for that taxable year
shall be allocated to that Interest Holder,before any other allocation is made of Company items for
that taxable year, in the amount and in proportions required to eliminate the excess as quickly as
possible. This Section 4.3.1 is intended to comply with, and shall be interpreted consistently with,
the "qualified income offset" provisions of the Regulations promulgated under Code Section
704(b).
4.3.2. Minimum Gain Chargeback. Except as set forth in Regulation Section
1.704-2(f)(2), (3), and (4), if, during any taxable year, there is a net decrease in Minimum Gain,
each Interest Holder, prior to any other allocation pursuant to this Section 4, shall be specially
allocated items of gross income and gain for such taxable year (and, if necessary, subsequent
taxable years) in an amount equal to that Interest Holder's share of the net decrease of Minimum
Gain, computed in accordance with Regulation Section 1.704-2(g)(2). Allocations of gross income
and gain pursuant to this Section 4.3.2 shall be made first from gain recognized from the
disposition of Company assets subject to nonrecourse liabilities (within the meaning of the
Regulations promulgated under Code Section 752), to the extent of the Minimum Gain attributable
to those assets, and thereafter, from a pro rata portion of the Company's other items of income and
gain for the taxable year. It is the intent of the parties hereto that any allocation pursuant to this
Section 4.3.2 shall constitute a"minimum gain chargeback"under Regulation Section 1.704-2(f).
4.3.3. Contributed Property and Book-ups. In accordance with Code Section
704(c) and the Regulations thereunder, as well as Regulation Section 1.704-1(b)(2)(iv)(d)(3),
491051.1 6
income, gain, loss, and deduction with respect to any property contributed (or deemed contributed)
to the Company shall, solely for tax purposes,be allocated among the Interest Holders so as to take
account of any variation between the adjusted basis of the property to the Company for federal
income tax purposes and its fair market value at the date of contribution (or deemed contribution).
If the adjusted book value of any Company asset is adjusted as provided herein, subsequent
allocations of income, gain, loss, and deduction with respect to the asset shall take account of any
variation between the adjusted basis of the asset for federal income tax purposes and its adjusted
book value in the manner required under Code Section 704(c) and the Regulations thereunder.
4.4. Liquidation and Dissolution
4.4.1. If the Company is liquidated, the assets of the Company shall be distributed
to the Interest Holders in accordance with the balances in their respective Capital Accounts, after
taking into account the allocations of Profit or Loss pursuant to Section 4.2, if any, and
distributions, if any, of cash or property pursuant to Section 4.1.
4.4.2. No Interest Holder shall be obligated to restore a Negative Capital Account.
4.5. General
4.5.1. Except as otherwise provided in this Agreement, the timing and amount of
all distributions shall be determined by the Members.
4.5.2. If any assets of the Company are distributed in kind to the Interest Holders,
those assets shall be valued on the basis of their fair market value, and any Interest Holder entitled
to any interest in those assets shall receive that interest as a tenant-in-common with all other
Interest Holders so entitled. Unless the Members otherwise agree, the fair market value of the
assets shall be determined by an independent appraiser who shall be selected by the Members. The
Profit or Loss for each unsold asset shall be determined as if the asset had been sold at its fair
market value, and the Profit or Loss shall be allocated as provided in Section 4.2 and shall be
properly credited or charged to the Capital Accounts of the Interest Holders prior to the distribution
of the assets in liquidation pursuant to Section 4.4.
4.5.3. All Profit and Loss shall be allocated, and all distributions shall be made
to the Persons shown on the records of the Company to have been Interest Holders as of the last
day of the taxable year for which the allocation or distribution is to be made. Notwithstanding
the foregoing, unless the Company's taxable year is separated into segments, if there is a Transfer
or an Involuntary Withdrawal during the taxable year, the Profit and Loss shall be allocated
between the original Interest Holder and the successor on the basis of the number of days each
was an Interest Holder during the taxable year; provided, however, the Company's taxable year
shall be segregated into two or more segments in order to account for Profit, Loss, or proceeds
attributable to any extraordinary nonrecurring items of the Company.
4.5.4. The Members are hereby authorized, upon the advice of the Company's tax
counsel, to amend this Section 4 to comply with the Code and the Regulations promulgated under
Code Section 704(b); provided,however, that no amendment shall materially affect distributions to
an Interest Holder without the Interest Holder's prior written consent.
491051.1 7
SECTION 5
MANAGEMENT: RIGHTS,POWERS,AND DUTIES
5.1. Management. The Company shall be managed as set forth in the Articles.
5.2. Meetings of and Voting by Members
5.2.1. Calling and Notice. A meeting of the Members may be called at any time
by any Member. Meetings of Members shall be held at the Company's principal place of business.
Not less than ten (10) nor more than ninety (90) days before each meeting, the Person calling the
meeting shall give written notice of the meeting to each Member entitled to vote at the meeting.
The notice shall state the time, place, and purpose of the meeting. Notwithstanding the foregoing
provisions, each Member who is entitled to notice waives notice if before or after the meeting the
Member signs a waiver of the notice which is filed with the records of Members' meetings, or is
present at the meeting in person or by proxy. Unless this Agreement provides otherwise, at a
meeting of Members, the presence in person or by proxy of Members holding not less than 51% of
the Percentages then held by Members constitutes a quorum. A Member may vote either in person
or by written proxy signed by the Member or by the Member's duly authorized attorney-in-fact.
5.2.2. Majority Rules. Except as otherwise provided in this Agreement, the
affirmative vote of Members holding 51% or more of the Percentages then held by Members shall
be required to approve any matter coming before the Members.
5.2.3. Informal Action. In lieu of holding a meeting, the Members may vote or
otherwise take action by a written instrument indicating the consent of Members signing the
consent.
5.3. Personal Services
5.3.1. Personal Services of Members. No Member shall be required to perform
services for the Company solely by virtue of being a Member.
5.3.2. Compensation of Members for Management Services. Unless approved
by Members holding 51% of the Percentages then held by Members, no Member shall be entitled
to compensation for management or other services performed for the Company.
5.3.3. Reimbursement of Members. Upon substantiation of the amount and
purpose thereof, the Members shall be entitled to reimbursement for direct out-of-pocket expenses
actually and reasonably incurred in connection with the business and affairs of the Company.
5.4. Duties of Parties
5.4.1. Extent of Liability. A Member shall not be liable, responsible, or
accountable in damages or otherwise to the Company or to any other Member for any action taken
or any failure to act on behalf of the Company within the scope of the authority conferred on the
491051.1 8
Member by this Agreement or by law, unless the action was taken or omission was made
fraudulently or in bad faith or unless the action or omission constituted gross negligence.
5.4.2. Member's Other Businesses. Except as otherwise expressly provided in
Section 5.4.3, nothing in this Agreement shall be deemed to restrict in any way the rights of any
Member, or of any Affiliate of any Member, to conduct any other business or activity whatsoever,
and no Member shall be accountable to the Company or to any other Member for that business or
activity even if the business or activity competes with the Company's business. The organization
of the Company shall be without prejudice to the Members' respective rights (or the rights of their
respective Affiliates) to maintain, expand, or diversify such other interests and activities and to
receive and enjoy profits or compensation therefrom. Each Member waives any rights the Member
might otherwise have to share or participate in such other interests or activities of any other
Member and such Member's Affiliates.
5.4.3. Dealings with Members. Each Member understands and acknowledges that
the conduct of the Company's business may involve business dealings and undertakings with
Members and their Affiliates. In any of those cases, those dealings and undertakings shall be at
arm's length and on commercially reasonable terms.
5.5. Liability and Indemnification of Members
5.5.1. Liability of Member. A Member shall not be liable, responsible, or
accountable, in damages or otherwise, to any other Member or the Company for any act performed
by the Member with respect to Company matters, except for fraud, gross negligence, or an
intentional breach of this Agreement.
5.5.2. Indemnification of Member. The Company shall indemnify each Member
for any inaction or act performed by the Member with respect to Company matters, except for
fraud, gross negligence, or an intentional breach of this Agreement.
SECTION 6
WITHDRAWALS OF MEMBERS
6.1. Voluntary Withdrawal. No Member shall have the right or power to Voluntarily
Withdraw from the Company.
6.3. Involuntary Withdrawal. Immediately upon the occurrence of an Involuntary
Withdrawal, the successor, if any, of the withdrawn Member shall thereupon become an Interest
Holder but shall not become a Member. If the Company is continued as provided in Section 7.1.3,
the successor Interest Holder shall have all the rights of an Interest Holder but shall not be entitled
to require the Company to purchase the Interest Holder's Interest in the Company.
491051.1 9
SECTION 7
DISSOLUTION AND LIQUIDATION
7.1. Events of Dissolution. The Company shall be dissolved upon the happening of any
of the following events:
7.1.1. when the period fixed for its duration in Section 2.4 has expired;
7.1.2. upon the unanimous written agreement of the Members; or
7.1.3. the occurrence of an Involuntary Withdrawal, unless the remaining
Members, within ninety (90) days after the occurrence of the Involuntary Withdrawal,
unanimously elect to continue the business of the Company pursuant to the terms of this
Agreement.
7.2. Procedure for Winding Up and Distribution by Members. If the Company
is dissolved, the remaining Members shall wind up its affairs. On winding up of the Company, the
assets of the Company shall be distributed, first, to creditors of the Company including Interest
Holders who are creditors, in the order of priority as provided by law, except those liabilities to
Members on account of their Capital Contributions, and then to the Interest Holders in accordance
with Section 4.4 of this Agreement.
SECTION 8
ADMISSION OF ADDITIONAL MEMBERS
8.1. Unanimous Consent of Members. With the unanimous written consent of all the
Members, additional Interests may be sold by the Company and additional Members may be
admitted as Members of the Company.
8.2. Definition of Additional Member. For purposes of this Section 8, "additional
Member" shall include an existing Member who acquires an additional Interest from the Company.
8.3. Amendment to Exhibit A. Each additional Member's required initial Capital
Contribution, Percentage, and the Percentages of all other Members shall be in such proportion as
shall be agreed by all of the Members and set forth in a written amendment to Exhibit A attached
hereto. Unless otherwise specified on that amendment to Exhibit A, such new Member's Capital
Account shall begin with a balance equal to the value of such new Member's Capital Contribution
received by the Corporation.
8.4. Additional Member Bound by This Agreement. Before becoming a Member, or
receiving Membership Rights for any additional Interest acquired, such additional Member must
agree in writing, in a form reasonably satisfactory to the Company, to be bound by this Agreement
and the amendment to Exhibit A referred to in Section 8.3 regarding the additional Interest and
Membership Rights required, and must also provide to the Company such additional Member's
taxpayer identification number, and initial tax basis in any property contributed to the Company.
491051.1 10
SECTION 9
BOOKS,RECORDS,ACCOUNTING,AND TAX ELECTIONS
9.1. Bank Accounts. All funds of the Company shall be deposited in a bank account or
accounts opened in the Company's name. The Members shall determine the institution or
institutions at which the accounts will be opened and maintained, the types of accounts, and the
Persons who will have authority with respect to the accounts and the funds therein.
9.2. Books and Records. The Members shall keep or cause to be kept complete and
accurate books and records of the Company and supporting documentation of transactions with
respect to the conduct of the Company's business. The books and records shall be maintained in
accordance with sound accounting practices. Those books and records, together with the records
described under Act Section 48-2b-119(1), shall be kept at the Company's principal place of
business and shall be available for inspection and copying by the Members at all reasonable times
during ordinary business hours. Any copying shall be at the expense of the Member requesting the
copy.
9.3. Annual Accounting Period. The annual accounting period of the Company shall be
its taxable year. The Company's taxable year shall be selected by the Members, subject to the
requirements and limitations of the Code.
9.4. Reports to Members. Within seventy-five (75) days after the end of each taxable
year of the Company, the Members shall cause to be sent to each Person who was a Member at any
time during the taxable year then ended a complete accounting of the affairs of the Company for
the taxable year then ended. In addition,within seventy-five (75) days after the end of each taxable
year of the Company, the Members shall cause to be sent to each Person who was an Interest
Holder at any time during the taxable year then ended, that tax information concerning the
Company which is necessary for preparing the Interest Holder's income tax returns for that year.
At the reasonable request of any Member, and at the Member's expense, the Members shall cause
an audit of the Company's books and records to be prepared by independent accountants for the
period requested by the Member.
SECTION 10
GENERAL PROVISIONS
10.1. Amendments to Agreement. Except for amendments to Exhibit A incident to
admission of(i) a transferee of an Interest as a Member pursuant to Section 6, and (ii) an additional
Member pursuant to Section 8, this Agreement (including Exhibit A) may be amended only with
the written consent of all the Members.
10.2. Further Assurances. Each Member shall execute all certificates and other
documents and shall do all such filing, recording, publishing, and other acts as the Members deem
appropriate to comply with the requirements of law for the formation and operation of the
Company and to comply with any laws, rules, and regulations relating to the acquisition, operation,
or holding of the property of the Company.
491051.1 11
10.3. Notifications. Any notice, demand, consent, election, offer, approval, request, or
other communication (collectively a "notice") required or permitted under this Agreement must be
in writing and either delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested. A notice must be addressed to an Interest Holder at the Interest Holder's
last known address on the records of the Company. A notice to the Company must be addressed to
the Company's registered office. A notice delivered personally will be deemed given only when
acknowledged in writing by the person to whom it is delivered. A notice that is sent by mail will be
deemed given three (3)business days after it is mailed. Any party may designate, by notice to all of
the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed
to those substitute addresses or addressees.
10.4. Specific Performance. The parties recognize that irreparable injury will result from
a breach of any provision of this Agreement and that money damages will be inadequate to fully
remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of the
provisions of this Agreement, any party who may be injured (in addition to any other remedies
which may be available to that party) shall be entitled to one or more preliminary or permanent
orders (i) restraining and enjoining any act which would constitute a breach, or (ii) compelling the
performance of any obligation which, if not performed,would constitute a breach.
10.5. Entire Agreement. This Agreement, including all Exhibits hereto, constitutes the
entire and exclusive understanding and statement of the agreement among the Members. It
supersedes all prior written and oral statements, including any prior representation, statement,
condition, or warranty.
10.6. Exhibits. All Exhibits attached hereto and referenced herein are incorporated into
this Agreement as substantive provisions thereof.
10.7. Applicable Law. All questions concerning the construction, validity, and
interpretation of this Agreement and the performance of the obligations imposed by this
Agreement shall be governed by the internal law, not the law of conflicts, of the State of Utah.
10.8. Headings. The headings used in this Agreement are inserted as a matter of
convenience only and do not define, limit, or describe the scope of this Agreement or the intent of
the provisions hereof.
10.9. Interpretation. This Agreement represents the wording selected by the parties
hereto to define their agreement and no rule of strict construction shall apply against any party or
subsequent signatory hereto. Whenever the context reasonably permits, the singular shall include
the plural, the plural shall include the singular, and the whole shall include any part thereof.
Pronouns in any gender shall include both other genders as the context may require.
10.10. Binding Provisions. This Agreement is binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, administrators, personal and legal representatives,
successors, and assigns.
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10.11. Jurisdiction and Venue. Any suit involving any dispute or matter arising under this
Agreement may only be brought in the United States District Court for the District of Utah or any
Utah State Court having jurisdiction over the subject matter of the dispute or matter. All Members
hereby consent to the exercise of personal jurisdiction by any such court with respect to any such
proceeding.
10.12. Attorneys' Fees. If any party hereto is required to institute legal action to enforce
that party's rights under this Agreement, the prevailing party shall be entitled, in addition to all
other remedies, to an award of all reasonable attorneys' fees and expenses of litigation incurred in
that action.
10.13. Severability. If any provision in this Agreement is invalid or unenforceable, such
provision shall be construed, limited or, if necessary, severed but only to the extent necessary to
eliminate such invalidity or unenforceability and the other provisions of this Agreement shall
remain unaffected.
10.14. No Conflict. Each party hereto warrants to the Company and the other parties that
such party has the right to enter into this Agreement and that this Agreement presents no conflict
with any obligation of such party to any third party.
10.15. Estoppel Certificate. Each Member shall, within ten (10) days after written request
by any Member, deliver to the requesting Person a certificate stating, to the Member's knowledge,
that: (a) this Agreement is in full force and effect, (b) this Agreement has not been modified except
by any instrument or instruments identified in the certificate, and (c) there is no default under this
Agreement by the requesting Person, or if there is a default,the nature and extent thereof.
10.16. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which, when taken together,
constitute one and the same document. The signature of any party to any counterpart shall be
deemed a signature to, and may be appended to, any other counterpart.
10.17. Facsimile Signatures. The parties hereto agree that transmission to any other party
hereto or the Company of this Agreement with such party's facsimile signatures shall suffice to
bind the party transmitting same to this Agreement in the same manner as if such party's original
signature had been delivered. Without limitation of the foregoing, each party who transmits this
Agreement with such parry's facsimile signature covenants to deliver the original thereof to the
other parties as soon as possible thereafter.
SECTION 11
TRANSFER AND BUY-SELL PROVISIONS
11.1 Restriction Against Transfer. No Member shall transfer all or any part of its
Interest at any time except in accordance with the provisions of this Article. Any purported
transfer in violation thereof shall be void and shall not transfer all or any part of any Interest.
Any Member may, however, transfer any or all of its Interest to a trust or entity controlled by
such Member without any prior consent or approval as long as the transferring Member
491051.1 13
continues to control the same and is the only representative of the transferee for purposes of
participating in the affairs of the Company. In the event of any transfer of all or any part of any
Interest to a then non-Member transferee, the transferee shall become a Member of the Company
only if the transferee first consents in writing to be bound by the provisions of this Agreement,
and then only if the remaining Members unanimously consent in writing to such substitution;
otherwise, the transferee shall have only the same rights as a non-partner assignee in a limited
partnership under Utah law.
11.2 Right of First Refusal. In the event any Member shall at any time desire to
transfer all or any of its Interest (the "Subject Interest"), other than by a transfer permitted
under Section 11.1, such Member (the "Transferor") shall give written notice thereof (the
"Offer Notice") to the other Members (the "Optionees"), and the Optionees shall have the first
right and option to purchase the Subject Interest. The Offer Notice shall set forth the name of the
Transferor, a description of the proposed transfer, including the name of the proposed transferee,
the amount of the Subject Interest, and the purchase price and any other terms and conditions of
the proposed transfer. If any of the Optionees exercise such option to purchase the Subject
Interest, the purchase price and terms of sale for the Subject Interest shall be the same as those
set forth in the Offer Notice, or as set forth in Sections 11.5 and 11.6, at the choice of the
exercising Optionees. If none of the Optionees exercises its right to purchase the Subject Interest
before the end of the "Exercise Period" defined below, the Transferor, within a period of 90 days
from the expiration of the Exercise Period, may transfer the Subject Interest as proposed in the
Offer Notice. If the Subject Interest is to be transferred after the expiration of the Exercise
Period, or transferred on terms other than those specified in the Offer Notice (including the
specific proposed transferee), such transfer shall be considered a new proposal, and shall again
be subject to the option granted in this Section and the procedures and requirements set forth
herein.
11.3 Purchase Upon Death, Disability, Bankruptcy, Involuntary Transfer,
Withdrawal, Etc. Upon the occurrence of any "Triggering Event" as defined below regarding
any Member (also referred to herein as a "Transferor") which does not result in the liquidation
of the Company, the other Members (also referred to herein as "Optionees") may, at their
option, purchase, and the Transferor (which term shall include its estate, conservator, spouse,
other successor in interest, etc., as applicable) shall sell, all of the Interest then or thereafter
owned by the Transferor (also referred to herein as a "Subject Interest"), at the price and on the
terms provided in Sections 11.5, 11.6 below. "Triggering Events" are defined as a Member's
death, long-term disability (long-term being defined for purposes hereof as any continuous
period of six months or longer, or any cumulative period of six months within any 18 month
period), bankruptcy, insolvency, receivership or assignment for the benefit of creditors,
involuntary transfer (including, without limitation, any award to an ex-spouse in connection with
a divorce; and provided that in the event of any involuntary transfer the purchase option shall
apply only to the involuntarily transferred portion of the Interest), failure of a Member to
participate in a meaningful manner in the management of the Company, regardless of reason, for
any continuous period in excess of 90 days or for any cumulative period of 90 days within any
12 month period, failure to make additional capital contributions within 30 days after call
therefor and/or any entity Member's "Change of Ownership" as defined below. For purposes of
this Agreement, the term "disabled" shall mean the physical or mental inability to participate in
491051.1 14
a meaningful manner in the management of the Company as determined by two qualified
physicians. For purposes of this Agreement, the term "Change of Ownership" shall mean any
cumulative transfer of more than 20% of the ownership of any entity Member, or in any entity
which directly or indirectly controls the same, or the transfer of any controlling or managing
interest in any of the foregoing. Any Interest subject to the purchase option under this Section is
referred to as a"Subject Interest".
11.4 Exercise of Option. Upon receiving an Offer Notice or otherwise becoming
aware of the occurrence of any Triggering Event, the Optionees shall have 30 days (the
"Exercise Period") to exercise their respective options to purchase the Subject Interest. If there
are two or more Optionees who elect to so purchase the Subject Interest, each electing Optionee
may purchase a percentage thereof equal to that Optionee's percentage of all Interests owned by
all Optionees electing to purchase the Subject Interest. If any Optionee does not wish to purchase
all of the Interest for which it has an option, the other Optionees may purchase the same in
proportion to their relative Interests at that time by giving notice thereof to the Transferor within
15 days after the expiration of the Exercise Period.
11.5 Determination of Purchase Price. The purchase price to be paid for an Interest, if
the same is determined under this Section, shall be the appraised value thereof as determined by
an independent appraiser who shall be selected by the Members.
11.6 Terms of Sale. In the event the terms of a sale pursuant to this Article are to be
determined in accordance with the provisions of this Section, the purchase price shall be paid at a
closing and as described below, unless otherwise agreed by the parties:
a. Closing. The closing of such sale (the "Closing") shall take place at the
principal office of the Company at 11:00 a.m., local time, within 30 days after the latter to occur
of: (1) the date on which any necessary determination of the purchase price of the Subject
Interest has been made; (2) in the case of a purchase and sale as provided in Section 11.2, the
exercise of the last applicable purchase option; and (3) in the case of a purchase and sale other
than as provided in Section 11.2, the latter of the date on which all Optionees become aware of
the Triggering Event.
b. Terms of Sale. Unless otherwise agreed to by the parties to the sale, the
purchasing Optionees shall pay to the Transferor at the Closing an amount at least equal to 10%
of the purchase price, with the balance, if any, due in 120 equal successive monthly installments
beginning on the first monthly anniversary date of the Closing and on the same day of each
month thereafter until paid in full. Interest on unpaid installments shall accrue at an adjustable
rate equal to the nationally prevailing prime rate (or its successor) from time to time, adjusted on
the first day of each month based on the rate publicly announced on the last business day of the
preceding month. Accrued interest shall be payable on the same dates that principal installments
are due. Such obligation shall be evidenced by a negotiable promissory note issued by the
purchaser, which promissory note may be prepaid in whole or in part at any time and without
penalty. All such promissory notes shall be subordinate and junior in payment priority to all
other debts and obligations of the Company except payments to other Members. If more than one
491051.1 15
such promissory note is outstanding at any time, all such notes shall be paid on a pro-rata basis
out of funds available for such payment purposes.
11.7 Buy-Sell Option.
a. Offer. Any Member (the "Offeror") may at any time make a firm offer
(the "Offer") to all of the other Members (the "Offerees") to purchase all of the Offerees'
Interests. The Offer shall be in writing and shall set forth the purchase price per Interest and the
terms for payment thereof. Notwithstanding the foregoing, the purchase price per Interest shall
not be less than 120% of the amount of the purchase price which would have been paid pursuant
to Section 11.5 at the time of the Offer had the purchase/sale arisen at such time under
circumstances requiring the purchase price to be determined under that Section.
b. Acceptance/Rejection. The Offerees shall have a period of 30 days from
receipt of the Offer within which one or more of the Offerees (on a pro rata basis if among more
than one Offeree) may elect in writing to purchase the Offeror's Interest at the same price per
Interest and upon the same terms as are contained in the Offer. If none of the Offerees so elect to
purchase the Interest of the Offeror, all of the Offerees shall be deemed to have elected to sell
their Interests to the Offeror in accordance with the Offer.
C. Closing. The closing of any sale and purchase pursuant to this Section
shall take place within 30 days after the end of the Offerees' 30 day election period described
above.
11.8 Member Discipline. Any Member may be disciplined by the Company for
committing any of the following acts (the "Violations"):
a. improper use or misappropriation of Company funds or assets;
b. willful violation of Company policy or willful commission of any act that
exposes the Company to legal liability, including, without limitation, illegal discrimination or
sexual harassment;
c. inappropriate or unprofessional conduct damaging or disparaging to the
Company's reputation or business interests; or
d. any fraudulent, deceitful or dishonest act with respect to any other Member.
Upon commission by a Member of any Violation, the other Members may, but are not required
to, take the following actions against the Member committing the Violation(the"Violator"):
(i) place the Violator on probation for a period of up to one year, during
which time the Violator's conduct and contributions to the Company shall be evaluated by the
other Members; and
491051.1 16
(ii) following such probationary period, either expel the Violator from the
Company, extend the probationary period for an additional period of up to one year, or place the
Violator back in good standing with the Company.
Violators shall be suspended from all rights to participate in the management of the Company
during any probationary periods. Expelled Members shall immediately lose all rights to
participate in the management of the Company, and upon expulsion shall be bought out of their
interests as provided in Sections 11.5 and 11.6, provided that the amount of any monetary
damage caused to the Company or the remaining Members shall be deducted from the purchase
price to be paid for the expelled Member's Interest.
11.9 Limited Repurchase. Each of the Members acknowledges that neither it nor its
legal representative has the right to compel the purchase of its Interest by the other Members
except as may be provided in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
WELLINGTON FAMILY LIMITED PARTNERSHIP,
a Texas limited part ership
By: l
491051.1 17
EXHIBIT A
LIST OF MEMBERS, CAPITAL, AND PERCENTAGES
Member's Name Initial Cash Capital Contribution Percentages
WELLINGTON FAMILY
LIMITED PARTNERSHIP $100.00 100%
491051.1 18
Agreements
and
Resolutions
JANUARY 1, 2020
GOLD STREAM, LLC
ALM HOLDINGS LLC
RE: North American Management, LLC
Dear Glen,
I am writing this letter ro confirm the agreement that Gold Stream, LLC hereby agrees to transfer 33%of
its membership interest in North American Management, LLC to ALM HOLDINGS LCC effective as at
January 1,2020.The signatures below shall evidence the consent of such transfers.
Sincerely
John Robertson
Manager of Gold Stream, LLC
Accepted:
ALM Holdings LLC
By its Manager
RESOLUTION OF THE MANAGER
OF
North American Management LLC
WHERE AS, it is deemed to be in the best interest of the company and its members;
And
WHERE AS,the manager pursuant to Article 5, 1 of the Operating Agreement for North American
Management LLC dated October 1, 2002 manages the entity and that manager by Articles of
Organization names the initial Manager as John Robertson
NOW THEREFORE, BE IT RESOLVED THAT:
The manager hereby appoints James R Petersen as additional Manager of North American Management
LLC.Therefor both John Robertson and James R Petersen has equal and full authority as managers and
each alone have the power to transact the business North American Management LLC.
I have hereto set my hand:
This 1st day of January, 2015
John Robertson
Manager of North American Management LLC
I hereby accept the a e ppointment to manager of North American Management LLC.
James R. Petersen
January 1, 2014
Wellington Family Limited Partnership
Gold Stream LLC
Re: North American Management LLC
Dear James,
I am writing this letter to confirm the agreement that Wellington Family Limited Partnership
hereby agrees to transfer its entire ownership interest in North American Management LLC to Gold
Stream LLC effective immediately.The signatures below shall evidence the consent of such transfers.
Sincerely
John Robertson
Manager of Wellington Family Limited Partnership
Accepted:
Gold Stream LLC
By its Manager