PZ - Operating Guidelines OPERATING GUIDELINES
OF
LINDER HOLDINGS, LLC
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.......................................................................................................... 1
1.1. Scope.................................................................................................................................... 1
1.2. Defined Terms ..................................................................................................................... 1
ARTICLE 2. ORGANIZATION.................................................................................................... 2
2.1. Formation of the Company.................................................................................................. 2
2.2. Name of the Company......................................................................................................... 2
2.3. Registered Agent and Location of Records......................................................................... 2
2.4. Purposes of the Company.................................................................................................... 2
2.5. Term of Existence................................................................................................................2
2.6. Name and Address of Initial Member.................................................................................. 2
ARTICLE 3. DISPOSITION AND CREATION OF MEMBERSHIP INTERESTS.................... 3
3.1. Transfer of Membership Interests........................................................................................ 3
3.2. Requirements for Admission of a New or Substitute Member............................................ 3
3.3. Rights of Transferees........................................................................................................... 3
3.4. Creating New or Additional Membership Interests............................................................. 3
3.5. Effect of Admitting New Members or Transferring Interests ............................................. 3
ARTICLE 4. MANAGEMENT OF THE COMPANY.................................................................. 3
4.1. Management of the Company.............................................................................................. 3
4.2. Tenure of Managers............................................................................................................. 3
4.3. Removal...............................................................................................................................4
4.4. Managers Need Not Be Members........................................................................................4
4.5. Powers and Authority of Managers .....................................................................................4
4.6. Manner of Acting................................................................................................................. 5
4.7. Compensation of Managers ................................................................................................. 6
4.8. Managers as Fiduciaries....................................................................................................... 6
ARTICLE 5. BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS ................................ 7
5.1. Maintenance of Books and Records .................................................................................... 7
5.2. Tax Year and Accounting Method....................................................................................... 7
ARTICLE 6. INDEMNIFICATION............................................................................................... 7
ARTICLE 7. DISSOLUTION, LIQUIDATION AND TERMINATION...................................... 7
7.1. Events of Dissolution........................................................................................................... 7
7.2. Exclusivity of Events........................................................................................................... 8
7.3. Winding Up.......................................................................................................................... 8
ARTICLE 8. GENERAL PROVISIONS ....................................................................................... 8
8.1. Entire Agreement; Amendments.......................................................................................... 8
8.2. Required Amendments......................................................................................................... 9
8.3. Power of Attorney................................................................................................................ 9
8.4. Nominees ............................................................................................................................. 9
8.5. Severability.......................................................................................................................... 9
8.6. Parties and Successors Bound.............................................................................................. 9
8.7. Lack of Formalities.............................................................................................................. 9
8.8. Investment Representation................................................................................................... 9
8.9. Rights of Creditors and Third Parties Under these Guidelines.......................................... 10
8.10. Mediation and Arbitration of Disputes............................................................................ 10
8.11. Waiver of Rights to Partition........................................................................................... 10
8.12. Applicable Law................................................................................................................ 10
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8.13. Headings and Captions .................................................................................................... 10
8.14. Number and Gender......................................................................................................... 10
8.15. Counterparts..................................................................................................................... 10
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Operating Guidelines
of
Linder Holdings, LLC
A Utah Limited Liability Company
These Operating Guidelines of Linder Holdings, LLC, effective as of March 5, 2019, are
executed and adopted by Aspen Cove Holdings, Inc., a Utah corporation (hereafter referred to as
a "Member" or "the Member"). Pursuant to the Act, these Operating Guidelines shall
constitute the operating agreement of the Company.
ARTICLE 1. DEFINITIONS
1.1. Scope. For purposes of these Guidelines, unless the language or context clearly
indicates that a different meaning is intended, capitalized terms have the meanings specified in
this article.
1.2. Defined Terms.
1.2.1. "Act" means the Utah Revised Uniform Limited Liability Company Act
and any successor statute, as amended from time to time.
1.2.2. "Certificate" means the certificate of organization filed with the Division
to organize the Company as a limited liability company, including any amendments.
1.2.3. "Company" means Linder Holdings, LLC, a Utah limited liability
company.
1.2.4. "Division" means the Utah Department of Commerce, Division of
Corporations and Commercial Code.
1.2.5. "Guidelines" means these Operating Guidelines, including any
amendments, supplements, or modifications thereto, which shall constitute the Company's
operating agreement.
1.2.6. "Manager" means a Person, whether or not a Member, who is vested with
authority to manage the Company in accordance with Article 4.
1.2.7. "Member" means an initial member of the Company and any Person who
is subsequently admitted as an additional or substitute member of the Company pursuant to the
terms of these Guidelines.
1.2.8. "Membership Interest" or "Interest" means a Member's percentage
interest in the Company, consisting of the Member's right to share in profits, receive
distributions, participate in the Company's governance, approve the Company's acts, participate
in the appointment and removal of a Manager, and receive information pertaining to the
Company's affairs, all to the extent set forth herein. The initial Member owns 100% of the
Company. Changes in Membership Interests after the date that the Company's Certificate is filed
with the Division will be reflected in the Company's records. The allocation of Membership
Interests reflected in the Company's records from time to time is presumed to be correct for all
purposes of these Guidelines and the Act.
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1.2.9. "Person' means any individual, association, cooperative, corporation, trust,
partnership,joint venture, limited liability company, or other legal entity.
1.2.10. "Transfer" means, with respect to an Interest, a sale, pledge,
encumbrance, lien, assignment, gift or any other disposition by a Member, whether voluntary,
involuntary, or by operation of law.
1.2.11. "Transferee" means a Person who acquires a Membership Interest by
Transfer from a Member or another Transferee and is not admitted as a Member in accordance
with these Guidelines. Notwithstanding anything herein to the contrary, a Transferee shall not
have the rights of a Member set forth in Article 1.2.8, other than the right to receive distributions
as set forth herein.
ARTICLE 2. ORGANIZATION
2.1. Formation of the Company. The Company has been organized as a Utah limited
liability company pursuant to the Act. In accordance with Article 8.5 below, the rights and
obligations of the Members shall be as set forth in the Act unless these Guidelines provide
otherwise. The initial capital contribution of the Member is set forth in the books and records of
the Company.
2.2. Name of the Company. The name of the Company is Linder Holdings, LLC, and all
Company business shall be conducted in that name or such other name as the Member may select
from time to time and which is in compliance with applicable laws.
2.3. Registered Agent and Location of Records. The registered agent of the Company
in the State of Utah shall be the registered agent named in the Certificate or such other Person or
Persons, as the Manager may designate from time to time in accordance with the Act. Any
records of the Company required to be maintained by the Act shall be kept at the office identified
in the Certificate, or at such other office as the Manager may designate from time to time,
consistent with the Act.
2.4. Purposes of the Company. The Company is organized to transact any and all
businesses for which limited liability companies may be formed under the Act.
2.5. Term of Existence. The Company commenced on the date its Certificate was
deemed filed with the Division and shall continue in existence until the expiration of the time
stated in the Certificate or, to the extent the Certificate does not address the duration of the
Company, as determined pursuant to the Act, or until such earlier time as may be determined in
accordance with the terms of these Guidelines.
2.6. Name and Address of Initial Member. The name and address of the initial Member
are:
Name Address
Aspen Cove Holdings, Inc. 3400 Mayflower Ave., Suite 505
Lehi, Utah 84043
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ARTICLE 3. DISPOSITION AND CREATION OF MEMBERSHIP INTERESTS
3.1. Transfer of Membership Interests. The Member may Transfer all or any part of the
Member's Membership Interest to any other Person at any time. With the exception of an
involuntary transfer of an Interest to a creditor of the Member, any Person to whom an Interest is
Transferred shall immediately become a Member of the Company, unless the Member specifies
otherwise in a written transfer document. A creditor of the Member who acquires an Interest by
means of an involuntary Transfer shall be a mere Transferee.
3.2. Requirements for Admission of a New or Substitute Member. No Transferee
shall have the right to become a Member without the consent of the Member, the granting or
denial of which shall be within the Member's sole and absolute discretion.
3.3. Rights of Transferees. If a Transferee is not admitted as a Member, he, she or it
shall be entitled to receive the allocations and distributions attributable to the transferred Interest,
but he, she or it shall not be entitled to inspect the Company's books and records, receive an
accounting of the Company's financial affairs, or otherwise take part in the Company's business
or exercise the rights of a Member under these Guidelines or the Act.
3.4. Creating New or Additional Membership Interests. The Member may admit
additional Persons to the Company as Members and Membership Interests may be created and
issued to those Persons on such terms and conditions as the Member determines at the time of
admission. The terms of admission or issuance must specify the interests in Company capital
applicable to the new interests.
3.5. Effect of Admitting New Members or Transferring Interests. If two or more
Persons ever own Interests in the Company simultaneously, the federal and state income tax
treatment of the Company will change significantly. Therefore, before transferring an Interest in
the Company or creating and issuing a new Interest, the Member should consult with a
competent tax advisor.
ARTICLE 4. MANAGEMENT OF THE COMPANY
4.1. Management of the Company. The Company will be manager-managed. The
Company will initially be managed by one Manager appointed by the Member from time to time.
The Member from time to time may establish and change the number of Managers. The name
and address of the initial Manager are:
Name Address
Derek Maxfield 3400 Mayflower Ave., Suite 505
Lehi, Utah 84043
4.2. Tenure of Managers. Managers shall serve for an indefinite period, except that: (a)
a Manager may resign at any time by giving written notice to the Members at least 30 days prior
to the effective date of the resignation; (b) a Manager who is a natural person shall cease to be a
Manager upon his or her death or at such time as he or she is adjudicated incompetent; (c) a
Manager who is a legal entity other than a natural person shall cease to be a Manager upon its
dissolution; and (d) a Manager shall cease to be a Manager at such time as he, she or it files, or
fails to successfully contest, a petition seeking liquidation, reorganization, arrangement,
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readjustment, protection, relief, or composition in any state or federal bankruptcy, insolvency,
reorganization, or receivership proceeding.
4.3. Removal. Except as established by contract, a Manager may be removed by the
Member at any time, with or without cause.
4.4. Managers Need Not Be Members. A Manager need not also be a Member.
4.5. Powers and Authority of Managers. Except for matters on which the Member's
approval is required by these Guidelines or the Act (not including matters with respect to which
the Act permits these Guidelines to govern), the Managers of the Company shall have full power,
authority, and discretion to manage and direct the Company's business, affairs, and properties,
including, without limitation, the following specific powers:
4.5.1. General Management Powers.
4.5.1.1. Disposition of Assets. To make all decisions relating to the sale,
lease, or other disposition of the Company's assets;
4.5.1.2. Purchase Assets. To purchase or acquire assets of all kinds for
the conduct of the Company's business;
4.5.1.3. Management of the Company's Business. To manage all or any
part of the Company's assets and business, including adopting equity incentive plans for
employees and agents and the qualification of the Company to do business in any state, territory,
dependency, or country;
4.5.1.4. Borrow Money. To borrow money and grant security interests in
the Company's assets (including loans from Members), and prepay, refinance, or extend any
mortgage affecting the Company's assets;
4.5.1.5. Compromise or Release Claims. To compromise or release any
of the Company's claims or debts;
4.5.1.6. Employment of Agents. To select and remove all officers, agents,
and employees of the Company, and to employ any Person for the operation and management of
the Company's business, and set or determine such Persons' compensation and benefits; and
4.5.1.7. Tax Elections. To make all elections available to the Company
under any federal or state tax law or regulation.
4.5.2. Power to Bind the Company. Each Manager may execute and deliver:
4.5.2.1. Contracts and Conveyances. All contracts, conveyances,
assignments, leases, subleases, franchise agreements, licensing agreements, management
contracts, and maintenance contracts covering or affecting the Company's assets;
4.5.2.2. Checks and Payments. All checks, drafts, and other orders for
the payment of the Company's funds;
4.5.2.3. Mortgages and Promissory Notes. All promissory notes,
mortgages, deeds of trust, security agreements and other similar documents;
4.5.2.4. Certificates, Articles, and Reports. All articles, certificates, and
reports pertaining to the Company's organization, qualification, and dissolution;
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4.5.2.5. Tax Returns and Reports. All tax returns and reports; and
4.5.2.6. Miscellaneous. All other instruments of any kind or character
relating to the Company's affairs.
4.6. Manner of Acting. The Managers may act with respect to any matter within the
scope of their authority at a meeting of Managers or pursuant to formal or informal procedures
adopted at a meeting of Managers. Procedures that may be adopted at a meeting of Managers
include, without limitation, the establishment of dates and times for regular meetings, procedures
pursuant to which the Managers may approve a matter without a meeting, and the delegation of
duties and responsibilities with respect to which the delegate may act without approval or
ratification by the other Managers. At any time that there is only one Manager acting, such
Manager may manage and administer the affairs of the Company in any manner it, he or she
deems appropriate. Notwithstanding the foregoing, at any time that there is more than one
Manager, the Managers shall be required to observe the following procedures.
4.6.1. Special Meetings. Special meetings of the Managers may be called by any
Manager or the Member at any time.
4.6.2. Written Consent. Except as expressly provided otherwise, any action
required to be taken at a meeting of the Managers or any other action which may be taken at a
meeting of the Managers, may be taken without a meeting if the consent is in writing, sets forth
the action taken, and is signed by Managers having at least the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all Managers were
present and voting. Prompt notice of the taking of the action without a meeting by less than
unanimous consent of the Managers shall be given in writing to those Managers who were
entitled to vote but did not consent in writing.
4.6.3. Telephonic Meetings. The Managers may participate in and act at any
meeting of Managers through the use of a conference telephone or other communications
equipment by means of which all Persons participating in the meeting can hear each other.
Participation in such meeting shall constitute attendance and presence in person at the meeting of
any Manager so participating.
4.6.4. Quorum. A majority of Managers present at any meeting of Managers will
constitute a quorum. No action may be taken at any meeting of Managers in the absence of a
quorum.
4.6.5. Required Approval. The decision of a majority in number of the Managers
present at any meeting at which a quorum is present controls with respect to any matter arising
within the scope of their authority. At any time there is an even number of Managers serving, the
Managers may adopt any reasonable procedure for breaking deadlocks, including without
limitation asking for input or a decision from the Company's professional advisors or other
experts, or mediating any dispute; however, if no such procedure is in place at the time a
deadlock occurs between the Managers (or is agreed to afterward), the decision resulting in such
deadlock shall be submitted to the Member at a special meeting for resolution.
4.6.6. Dissent. A Manager may be absolved from personal liability with respect to
any decision or action of the Managers which he, she or it voted against or did not participate in
by registering in the Company's records a written dissent from such action or decision within 30
days after receiving notice of the decision. A dissenting Manager will nevertheless act with the
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other Managers in any way necessary or appropriate to effectuate the decision of the majority, so
long as such decision or action is not illegal.
4.7. Compensation of Managers. No Manager shall receive compensation for its, his or
her management and supervision of the Company's business, unless a reasonable amount of
compensation is agreed to by the Member.
4.8. Managers as Fiduciaries.
4.8.1. Duties Owed. Each Manager owes a fiduciary duty of loyalty and
fiduciary duty of care to the Company and its Member as described in Sections 48-3a-409(2) and
(3) of the Act as of the date hereof, as such duties have been modified or altered by these
Guidelines as explained below. To the maximum extent permitted by law, Managers shall owe
no fiduciary duties to the Company or its Member other than those described in the immediately
preceding sentence. Notwithstanding anything to the contrary contained in these Guidelines, and
as permitted by Section 48-3a-112(4)(c) of the Act, if any portion of these Guidelines (including
without limitation Article 4.8.4 and other portions of this Article 4.8) conflicts or is otherwise
inconsistent with aspects or components of the duty of loyalty and duty of care described in the
Act, these Guidelines shall control to the maximum extent permitted by law, meaning that, so
long as the same is not unconscionable or against public policy, such aspects or components of
such duties otherwise set forth in the Act shall be deemed eliminated, limited or otherwise
altered, as the case may be, consistent with or to the extent required by the terms contained in
these Guidelines. Furthermore, a specific act or transaction that would otherwise violate the
applicable duty of loyalty may be authorized or ratified by the Member after full disclosure of all
materials facts; if such authorization occurs, such act or transaction shall be permitted. All
Managers and the Member shall discharge all duties and obligations arising hereunder or the Act
and exercise any rights consistently with the contractual obligations of good faith and fair
dealing.
4.8.2. Exculpation. To the maximum extent permitted by law, a Manager will not
be liable to the Company or the Member for an act or omission done in good faith to promote the
Company's best interests, unless the act or omission involves or constitutes bad faith, willful
misconduct or recklessness.
4.8.3. Justifiable Reliance. A Manager may rely on the Company's records
maintained in good faith and on information, opinions, reports, or statements received from any
Person pertaining to matters that the Manager reasonably believes to be within the Person's
expertise or competence; provided, however, that nothing in these Guidelines shall be deemed to
authorize intentional misconduct or knowing violation of law.
4.8.4. Permitted Transactions. No Manager shall be required to manage the
Company as such Manager's sole and exclusive function. Each Manager and such Manager's
affiliates shall be free to engage in any activity (including activities or businesses that are
competitive with or otherwise relate to the Company or its business) on their own or by the
means of any entity, and the "corporate opportunity doctrine," as such doctrine has been
described under general corporation law, as well as each Manager's fiduciary duty of loyalty, as
it applies to outside business activities and opportunities, are hereby eliminated or otherwise
altered consistent herewith to the maximum extent allowed by the Act. Without limiting the
foregoing, no Manager or such Manager's affiliates shall be required to refer opportunities to the
Company or to account for any benefits from transactions entered into in good faith that are in
any way connected with the Company or its business.
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4.8.5. Self-Dealing. A Manager (or such Manager's affiliate) may enter into a
business transaction with the Company if the terms of the transaction are no less favorable to the
Company than those of a similar transaction with an independent third party. Approval or
ratification by the Member constitutes conclusive evidence that the terms satisfy the foregoing
condition,but such approval or ratification is not required to satisfy such condition.
ARTICLE 5. BOOKS,RECORDS, REPORTS AND BANK ACCOUNTS
5.1. Maintenance of Books and Records. The Company shall keep books and records of
accounts at the office of the Company set forth in the Certificate or at such other office as the
Manager may designate from time to time, consistent with the Act. In addition, the Company
shall maintain the following at its principal place of business: (a) a current list in alphabetical
order of the full name and last known business address of each Member; (b) a copy of the
stamped Certificate and all amendments thereto, together with executed copies of any powers of
attorney pursuant to which any document has been executed; (c) copies of the Company's
federal, state, and local income tax returns and reports and financial statements, if any, for the
three most recent years; (d) copies of these Guidelines and any amendments thereto; and (e)
unless contained in these Guidelines, the Certificate, or in any amendments thereto, a writing
setting out: (i) the amount of cash, a description and statement of the agreed value of the other
property or services contributed by each Member and which each Member has agreed to
contribute; (ii) the items as to which or events on the happening of which any additional
contributions agreed to be made by each Member are to be made; (iii) any right of a Member to
receive, or of the Members to make, distributions which include a return of all or any part of the
Member's contribution; and (iv) any events upon the happening of which the Company is to be
dissolved and its affairs wound up. Records kept pursuant to this paragraph are subject to
inspection and copying at the reasonable request, and at the expense, of any Member during
ordinary business hours.
5.2. Tax Year and Accounting Method. The Company's tax and fiscal years shall be
the calendar year, unless otherwise determined by the Manager. The Company shall use the cash
method of accounting, unless otherwise determined by the Manager.
ARTICLE 6. INDEMNIFICATION
The Company shall indemnify each Member, Manager, employee, or agent for all
expenses, losses, liabilities, and damages that such Person actually and reasonably incurs in
connection with (a) the defense or settlement of any action arising out of or relating to the
conduct of the Company's activities as long as such Person acted in good faith and in a manner
which he, she or it reasonably believed to be in the best interest of the Company, and, in the case
of a criminal proceeding, had no reasonable cause to believe that his, her or its conduct was
illegal; or (b) the protection of the Company's property. However, the Company shall not
indemnify any Person in any action in which such Person is adjudged to be liable for breach of a
fiduciary duty owed to the Company or the Member under the Act or these Guidelines.
ARTICLE 7. DISSOLUTION,LIQUIDATION AND TERMINATION
7.1. Events of Dissolution. The Company shall be dissolved and shall commence
winding up its affairs upon the first to occur of the following: (a) the time fixed in the Certificate
as the expiration of the term of the Company (as applicable); (b) the consent of the Member in
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writing; (c) any event which makes it unlawful or impossible to carry on the Company's
business; or(d) at such time as there is no longer at least one Member of the Company.
7.2. Exclusivity of Events. Unless specifically referred to in Article 7.1, or otherwise
provided for by Sections 48-3a-701(4)(a) or(5) of the Act, no event, including any other event of
dissolution prescribed by the Act, will result in the Company's dissolution.
7.3. Winding Up. Upon dissolution, the affairs of the Company shall be wound up as
required by or otherwise in conformity with Sections 48-3a-703(1), (2)(a) and(5) of the Act and
the following:
7.3.1. Appointment of Liquidator. Upon the Company's dissolution, the
Manager will appoint a liquidator, who may but need not be the Manager or the Member. The
liquidator will wind up and liquidate the Company in an orderly, prudent, and expeditious
manner in accordance with the following provisions of this article.
7.3.2. Final Accounting. The liquidator will make proper accountings beginning
with the date on which the event of dissolution occurred to the date on which the Company is
finally and completely liquidated.
7.3.3. Duties and Authority of Liquidator. The liquidator will make adequate
provision for the discharge of all of the Company's debts, obligations, and liabilities (including
liabilities to the Member as a creditor). The liquidator may sell, encumber, or retain for
distribution in kind any of the Company's assets.
7.3.4. Final Distribution. The liquidator will distribute any assets remaining after
the discharge or accommodation of the Company's debts, obligations, and liabilities to the
Member.
7.3.5. Required Filings. The liquidator will file with the Division such
statements, certificates, and other instruments, and take such other actions, as are reasonably
necessary or appropriate to effectuate and confirm the cessation of the Company's existence,
consistent with the Act.
ARTICLE 8. GENERAL PROVISIONS
8.1. Entire Agreement; Amendments. These Guidelines constitute the entire agreement
between and among the Member, the Manager and the Company relating to: (a) relations
between the Member and the Company; (b) the rights and duties of a person in the capacity of a
Manager; (c) the business, activities and affairs of the Company and the management and
conduct of such business, activities and affairs; and (d) the means and conditions for amending
these Guidelines. In other words, these Guidelines are the only Operating Agreement(as defined
in the Act) of the Company, and completely amend, change, supersede and replace all prior
discussions, statements, expressions, negotiations, understandings, impressions, course of
dealing, writings, documents, email messages, text messages, and other communications—
whether oral, implied, written, or in a record or any other medium—relating to the Company or
its business, activities and affairs or to the matters listed above. Except as provided in Article 8.2
below, these Guidelines may be amended or modified from time to time only by written
instrument signed by both the Member and the Manager. This is the only and exclusive manner
in which these Guidelines may be amended.
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8.2. Required Amendments. The Certificate may only be amended as approved by both
the Manager and Member, provided that the Member and Manager will execute and file any
amendment to the Certificate required by the Act. If any such amendment results in
inconsistencies between the Certificate and these Guidelines, the Guidelines will be considered
to have been amended in the manner necessary to eliminate the inconsistencies.
8.3. Power of Attorney. Each Member appoints each Manager, with full power of
substitution, as the Member's attorney-in-fact, to act in the Member's name and to execute and
file (a) all certificates, applications, reports, and other instruments necessary to qualify or
maintain the Company as a limited liability company in the states and foreign countries where
the Company conducts its activities, (b) all instruments that effect or confirm changes or
modifications of the Company or its status, including, without limitation, amendments to the
Certificate, and (c) all instruments of transfer necessary to effect the Company's dissolution and
termination. The power of attorney granted by this article is irrevocable, coupled with an interest,
will survive any incapacity of the Member, and shall be binding upon the Member's successors
and assigns.
8.4. Nominees. Title to the Company's assets may be held in the name of the Company
or any nominee (including any Member or Manager so acting), as the Company determines. The
Company's agreement with any nominee may contain provisions indemnifying the nominee for
costs or damages incurred as a result of the nominee's service to the Company.
8.5. Severability; Interpretation. These Guidelines are intended to be compliant with
the Act and shall be so construed and interpreted; provided, however, that, notwithstanding any
other provision contained in these Guidelines, in case of any variation or conflict between these
Guidelines and the Act concerning matters on or about which operating agreements may govern
or otherwise supersede or modify the provisions of the Act, these Guidelines shall control in each
such case and the Member and Manager hereby acknowledge and consent to the same. If any
provision of these Guidelines or the application of such provision to any Person or circumstance
shall be held invalid, the remainder of these Guidelines, or the application of such provision to
Persons or circumstances other than those to which it is held invalid, shall not be affected
thereby.
8.6. Parties and Successors Bound. Subject to other provisions hereof, these Guidelines
shall be binding upon each party and such party's respective successors, assigns, heirs, devisees,
legal representatives, executors and administrators.
8.7. Lack of Formalities. Failure of the Company to maintain records, to hold meetings
of the Members or Managers, or to observe any formalities or requirements imposed by law or
by the Certificate or these Guidelines is not a ground for imposing personal liability on any
Member, Manager, or employee for any debt, obligation or liability of the Company.
8.8. Investment Representation. The Member represents to the Company and the
Manager that (a) the Member is acquiring a Membership Interest in the Company for investment
and for the Member's own account and not with a view to its sale or distribution and (b) neither
the Company nor the Manager has made any guaranty or representation upon which the Member
has relied concerning the possibility or probability of profit or loss resulting from the Member's
investment in the Company.
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8.9. Rights of Creditors and Third Parties Under these Guidelines. These Guidelines
are entered into for the exclusive benefit of the Company, the Manager, the Member, and their
successors and assignees. These Guidelines are expressly not intended for the benefit of any
creditor of the Company, the Manager, the Member, or any other Person. Except and only to the
extent provided by applicable statute, no such creditor or third party shall have any rights under
these Guidelines. None of the terms, covenants, obligations, or rights contained in these
Guidelines is or shall be deemed to be for the benefit of any Person other than the Company, the
Manager, the Member, and their respective successor and assigns, and no such third person shall
under any circumstances have any right to compel any actions or payments by the Company,
Manager or the Member.
8.10. Mediation and Arbitration of Disputes. In case of any dispute arising under or
related to these Guidelines, the parties will first endeavor in good faith to resolve such dispute by
mediation, which shall take place in Salt Lake County, Utah, according to the then prevailing
rules and procedures of the American Arbitration Association. If the parties cannot resolve such
dispute through mediation, the parties shall then submit such dispute to binding arbitration,
which shall take place in Salt Lake County, Utah, according to the then prevailing rules and
procedures of the American Arbitration Association, where the findings and decision of the
arbitrator shall be binding upon all parties to such dispute. All fees and costs (including
reasonable attorneys' fees) incurred pursuant to the resolution of any dispute to which this article
applies shall be allocated to the losing party.
8.11. Waiver of Rights to Partition. The Member irrevocably waives any right that such
Member may have to maintain any action for partition with respect to property contributed to or
acquired by the Company.
8.12. Applicable Law. The laws of the State of Utah shall govern these Guidelines,
excluding any conflict of law rules.
8.13. Headings and Captions. The headings in these Guidelines are inserted for
convenience and identification only and are in no way intended to describe, interpret, define, or
limit the scope, extent, or intent of these Guidelines or any provision.
8.14. Number and Gender. All words used herein shall be construed to be of such
number and gender(including neuter) as the context requires or permits.
8.15. Counterparts. These Guidelines may be executed in counterparts, by original or
facsimile signature, each of which will be considered an original.
[Remainder of page intentionally left blank; signature page to follow]
10
IN WITNESS WHEREOF,the Member has executed these Guidelines to be effective as
set forth above.
MEMBER:
ASPEN COVE HOLDINGS,INC.,a Utah
I orpomtion
Name: etek P.. "field
Title:President
Acknowledged.accepted and agreed:
MANAGER:
T
Derek h axfield