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OPERATING AGREEMENT for _ _[NAME]_ _, _ _[e.g., LLC/a limited liability company]_ _
A. This operating agreement is entered into as of _ _[date]_ _ by _ _[names]_ _ (referred to individually as a Member and collectively as the Members).
B. The Members desire to form a limited liability company (Company) under the Beverly-Killea Limited Liability Company Act.
C. The Members enter into this Agreement to form and provide for the governance of the Company and the conduct of its business, and to specify their relative rights and obligations.
B. The Members have formed a limited liability company under the Beverly-Killea Limited Liability Company Act. The Articles of Organization of the Company filed with the California Secretary of State on _ _[date]_ _, are adopted and approved by the Members.
C. The Members enter into this Agreement to provide for the governance of the Company and the conduct of its business, and to specify their relative rights and obligations.
Now therefore, the Members agree as follows:
ARTICLE I: DEFINITIONS
Capitalized terms used in this Agreement have the meanings specified in this Article or elsewhere in this Agreement and when not so defined will have the meanings set forth in California Corporations Code §17001.
1.1. “Act” means the Beverly-Killea Limited Liability Company Act (California Corporations Code §§17000-17656), including amendments from time to time.
1.2. “Adjusted Capital Contribution” is defined in Article IV, Section 4.6(a).
1.3. “Adjusted Capital Account Deficit” is defined in Article IV, Section 4.3(a).
1.4. “Affiliate” of a Member or Manager means any Person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Member or Manager. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through membership, ownership of voting securities, by contract, or otherwise.
1.5. “Agreement” means this operating agreement, as originally executed and as amended from time to time.
1.6. “Articles of Organization” is defined in Corporations Code §17001(b) as applied to this Company.
1.7. “Assignee” means a Person who has acquired a Member’s Economic Interest in the Company, by way of a Transfer in accordance with the terms of this Agreement, but who has not become a Member.
1.8. “Assigning Member” means a Member who by means of a Transfer has transferred an Economic Interest in the Company to an Assignee.
1.9. “Available Cash” means all net revenues from the Company’s operations, including net proceeds from all sales, refinancings, and other dispositions of Company property that the Manager, in the Manager’s sole discretion, deems in excess of the amount reasonably necessary for the operating requirements of the Company, including debt reduction and Reserves.
1.10. “Book Adjustments” means, for any item of Company property for a given fiscal year, adjustments with respect to Book Value for depreciation, cost recovery, or other amortization deduction or gain or loss computed in accordance with Treasury Reg §1.704-1(b)(2)(iv)(g), including Book Depreciation.
1.11. “Book Depreciation” means, for any item of Company property for a given fiscal year, a percentage of depreciation or other cost recovery deduction allowable for federal income tax purposes for that item during that fiscal year equal to the result (expressed as a percentage) obtained by dividing (1) the Gross Asset Value of that item at the beginning of the fiscal year (or the acquisition date during the fiscal year) by (2) the federal adjusted tax basis of the item at the beginning of the fiscal year (or the acquisition date during the fiscal year). If the adjusted tax basis of an item is zero, the Manager may determine Book Depreciation, provided that he or she does so in a reasonable and consistent manner.
1.12. “Capital Account” means, with respect to any Member, the account reflecting the capital interest of the Member in the Company, consisting of the Member’s initial Capital Contribution maintained and adjusted in accordance with Article III, Section 3.5.
1.13. “Capital Contribution” means, with respect to any Member, the amount of money _ _[, or services rendered or to be rendered,]_ _ and the fair market value of any property contributed to the Company (net of liabilities secured by the contributed property that the Company is considered to assume or take “subject to” under Internal Revenue Code §752) in consideration of a Percentage Interest held by that Member. A Capital Contribution will not be deemed a loan.
1.14. “Capital Event” means a sale or disposition of any of the Company’s capital assets, the receipt of insurance and other proceeds on account of an involuntary conversion of Company property, the receipt of proceeds from a refinancing of Company property, or a similar event with respect to Company property or assets.
1.15. “Company” means the company named in Article II, Section 2.2 of this Agreement.
1.16. “Company Minimum Gain” is defined in Article IV, Section 4.3(b).
1.17. “Confidential Information” is defined in Article X, Section 10.2.
1.18. “Corporations Code” (“Corp C”) means the California Corporations Code.
1.19. “Economic Interest” means a Person’s right to share in the income, gains, losses, deductions, credit, or similar items of the Company, and to receive distributions from the Company under this Agreement or under the Act, but does not include any other rights of a Member, including the right to vote, the right to participate in the management of the Company, or, except as provided in Corp C §17106, any right to information concerning the business and affairs of the Company.
1.20. “Electronic transmission by the Company” and “electronic transmission to the Company” have the meanings set out in Corp C §17001(o)(1)-(2).
1.21. “Encumber” means the act of creating or purporting to create an Encumbrance, whether or not perfected under applicable law.
1.22. “Encumbrance” means, with respect to any Membership Interest, or any part of it, a mortgage, pledge, security interest, lien, proxy coupled with an interest (other than as contemplated in this Agreement), option, or preferential right to purchase.
1.23. “Gross Asset Value” means, for any item of property of the Company, the item’s adjusted basis for federal income tax purposes, except:
(a) The initial Gross Asset Value of any item of property contributed by a Member to the Company will be the fair market value of that property, as mutually agreed by the contributing Member and the Company;
(b) The Gross Asset Value of any item of Company property will be adjusted as of the following times: (1) the acquisition of an interest or additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (2) the distribution of money or other property (other than a de minimis amount) by the Company to a Member as consideration for an Economic Interest in the Company; and (3) the liquidation of the Company within the meaning of Treasury Reg §1.704-1(b)(2)(ii)(g); provided, however, that adjustments under clauses (1) and (2) above will be made only if the Members have determined that the Company must revalue its assets in accordance with Treasury Reg §1.704-1(b)(2)(iv)(f);
(c) The Gross Asset Value of any Company asset distributed to any Member will be the book value of that asset on the date of distribution; and
(d) The Gross Asset Value of Company assets will be increased (or decreased) to reflect any adjustments to the adjusted tax basis of those assets under IRC §734(b) or 743(b), subject to the limitations imposed by IRC §755 and only to the extent that those adjustments are taken into account in determining Capital Accounts under Treasury Reg §1.704-1(b)(2)(iv)(m), and if the Gross Asset Value of an asset has been determined or adjusted under paragraph (a), (b), or (d) of this Section 1.23, that Gross Asset Value will thereafter be adjusted by the Book Adjustments, if any, taken into account for the asset for purposes of computing Profits and Losses.
1.24. “Initial Members” means those Persons whose names are set forth _ _[in the first sentence of/in Exhibit A to]_ _ this Agreement.
1.25. “Involuntary Transfer” means, with respect to any Membership Interest, or any part of it, any Transfer or Encumbrance, whether by operation of law, under court order, foreclosure of a security interest, execution of a judgment or other legal process, or otherwise, including a purported transfer to or from a trustee in bankruptcy, receiver, or assignee for the benefit of creditors.
1.26. “IRC” means the Internal Revenue Code of 1986, as amended, and any successor provision.
1.27. “Losses.” See Article IV, Section 4.2.
1.28. “Majority of Members” means a Member or Members whose Percentage Interests represent more than 50 percent of the Percentage Interests of all the Members.
1.29. “Manager” means the Person named in Article II, Section 2.9, or the Person who from time to time succeeds any Person as a Manager and who, in either case, is serving at the relevant time as a Manager.
1.30. “Member” means an Initial Member or a Person who otherwise acquires a Membership Interest, as permitted under this Agreement, and who has not ceased to be a Member under Article VIII or for any other reason.
1.31. “Member Nonrecourse Debt” is defined in Article IV, Section 4.3(c).
1.32. “Member Nonrecourse Debt Minimum Gain” is defined in Article IV, Section 4.3(d).
1.33. “Member Nonrecourse Deductions” is defined in Article IV, Section 4.3(e).
1.34. “Membership Interest” means a Member’s entire interest and rights in the Company, collectively, including the Member’s Economic Interest, any right to Vote or participate in management, and any right to information concerning the business and affairs of the Company.
1.35. “Nonrecourse Deductions” is defined in Article IV, Section 4.3(f).
1.36. “Nonrecourse Liability” is defined in Article IV, Section 4.3(g).
1.37. “Notice” means a notice in writing required or permitted under this Agreement. A notice will be deemed given or sent when deposited, as certified mail or for overnight delivery, postage and fees prepaid, in the United States mails; when delivered to Federal Express, United Parcel Service, DHL WorldWide Express, or Airborne Express, for overnight delivery, charges prepaid or charged to the sender’s account; when personally delivered to the recipient; when transmitted by electronic transmission by or to the Company (see §1.20); or when delivered to the home or office of a recipient in the care of a person whom the deliverer has reason to believe will promptly communicate the notice to the recipient.
Addresses for the purpose of giving notice are as follows:
_ _[Name of party]_ _: _ _[address]_ _ _ _[e-mail]_ _ _ _[fax number]_ _
_ _[Name of party]_ _: _ _[address]_ _ _ _[e-mail]_ _ _ _[fax number]_ _
_ _[Name of party]_ _: _ _[address]_ _ _ _[e-mail]_ _ _ _[fax number]_ _
Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified will be deemed effective as of the first date that the notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service.
Any party may change its address, electronic mail address, or fax number by giving the Manager Notice of the change.
1.38. “Percent of the Members” means the specified total of Percentage Interests of all the Members.
1.39. “Percentage Interest” means a fraction, expressed as a percentage, the numerator of which is the total of a Member’s Capital Account and the denominator of which is the total of all Capital Accounts of all Members.
1.40. “Person” means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, whether domestic or foreign.
1.41. “Profits” and “Losses” are defined in Article IV, Section 4.2.
1.42. “Proxy” has the meaning set forth in the first paragraph of Corp C §17001(ai). A Proxy may not be transmitted orally.
1.43. “Regulations” (“Reg” or “Treasury Reg”) means the income tax regulations promulgated by the United States Department of the Treasury and published in the Federal Register for the purpose of interpreting and applying the provisions of the Code, as those Regulations may be amended from time to time, including corresponding provisions of applicable successor regulations.
1.44. “Reserves” means the aggregate of reserve accounts that the Manager, in the Manager’s sole discretion, deems reasonably necessary to meet accrued or contingent liabilities of the Company, reasonably anticipated operating expenses, and working capital requirements.
1.45. “Successor in Interest” means an Assignee, a successor of a Person by merger or otherwise by operation of law, or a transferee of all or substantially all of the business or assets of a Person.
1.46. “Tax Item” means each item of income, gain, loss, deduction, or credit of the Company.
1.47. “Tax Matters Partner” means the Person designated under Article VI, Section 6.6.
1.48. “Transfer” means any sale, assignment, gift, Involuntary Transfer, Encumbrance, or other disposition of a Membership Interest or any part of a Membership Interest, directly or indirectly, other than an Encumbrance that is expressly permitted under this Agreement.
1.49. “Triggering Event” is defined in Article VIII, Section 8.4.
1.50. “Vote” means a written consent or approval, a ballot cast at a meeting, or a voice vote.
1.51. “Voting Interest” means, with respect to a Member, the right to Vote or participate in management and any right to information concerning the business and affairs of the Company provided under the Act, except as limited by the provisions of this Agreement. A Member’s Voting Interest will be directly proportional to that Member’s Percentage Interest.
1.52. “Writing” includes any form of recorded message capable of comprehension by ordinary visual means.