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HomeMy WebLinkAboutOperating Agreement +-i OPERATING AGREEMENT FOR CUTTING EDGE SELF-STORAGE ADT,LLC (A UTAH LIMITED LIABILITY COMPANY) THIS OPERATING AGREEMNTeratin Agreement")the"Operating P g reement"g ) is entered into by the undersigned (the"Members"), effective as of the 2"d day of November, 2006. RECITAL The Members desire to form CUTTING EDGE SELF-STORAGE ADT, LLC, a limited liability company(the"LLC"),under Utah Limited Liability Company Act for the purposes set forth herein, and,accordingly, desire to enter into this Operating Agreement in order to set forth the terms and conditions of the business and affairs of the LLC and to determine the rights and obligations of its Members. NOW,THEREFORE,the Members,Intending to be legally bound by this Operating Agreement, hereby agree that the limited liability company Operating Agreement of the LLC shall be as follows: ARTICLE 1 DEFINITIONS When used in this Operating Agreement,the following terms shall have the meanings set forth below. 1.1 "Act"means the Utah Limited Liability Company Act as currently in effect. 1.2 "Capital Contributions(s)"means the amount of cash and the agreed value of property, services rendered, or promissory note or other obligation to contribute cash or property or to perform services contributed by the Capital Contributions plus the Members' additional Capital Contributions, if any,made pursuant to Sections 4.1 and 4.2,respectively. 1.3 "Code"means the Internal Revenue Code of 1986 and the regulations promulgated thereunder, as amended from time to time (or any corresponding provision or provisions of succeeding law). 1.4 "Member"means one of the undersigned or the assignee or transferee of the Member Pursuant to this Operating Agreement. 1.5 "Membership Units"shall mean one or more units owned by a Member out of the 1000 issued and outstanding Membership Units, as designated on Exhibit A attached hereto (as it may be amended from time to time) and set forth opposite the Members' names. Each Membership Units represents a percentage ownership in the LLC. Such percentage is sometimes herein referred to as a Members' "Ownership Interest" and it is computed by dividing the number of MMembership Units owned by a Member by the total number of issued and outstanding embership Units. Holders of Membership Units shall be entitled to vote on all matters on which Members may vote or consent in this Operating Agreement or under the Act. 1.6 "Person"means any individual,partnership,firm, corporation,Limited Liability Company, joint-stock company,trust or other entity. 1 6.4 Tax Matters Member. Stephan A. Ross ARTICLE VII RIGHTS AND DUTIES OF MANAGERS 7.1 Management. The business and affairs of the LLC shall be managed by its Manager or Co- Manager hereafter referred to as "manager". Except for situations in which the approval of the Members is expressly required by this Operating Agreement or by nonwaivable provisions of the Act,the Managers shall have the exclusive, sole, full and complete authority,power and discretion to manage and control the business,affairs and properties of the LLC,to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the management of the LLC's business. At any time when there is more than one Manager,any one Manager may take any action permitted to be taken by the Managers,unless the approval of more than one of the Managers is expressly required pursuant to this Operating Agreement or the Act. The Managers may create a Board of Director,President,Vice President,Treasurer, and Assistant Secretary,to act on behalf of the LLC with such power and authority as the Managers or Board of Directors may delegate to any such Person. Tracy Lyman is hereby designated as the Manager and Stephan A. Ross is hereby designated as Co-Manager. 7.2 Number,Tenure and Qualifications. The LLC shall at all times during the entire Term of this Operating Agreement be managed solely and exclusively by only those Managers elected by the Members. The Managers shall serve and continue in such office for the term of the LLC,unless sooner replaced by another Manager elected by a majority vote of the Members at any meeting of the Members,or unless removed by operation of law,by order or decree of any court of competent jurisdiction,or upon the events of bankruptcy of a Member or upon the death, disability, resignation, or other failure to serve of any Manager. 7.3 Certain Powers of Managers. Without limiting the generality of section 7.1,the Managers shall have the power and authority, on behalf of the LLC: (a) To acquire or lease property from any Person as the Managers may determine whether or not such Person is directly or indirectly affiliated or connected with any Manager or Member; (b) To borrow money for the LLC from banks, other lending institutions,the Managers, Members, or affiliates of the Managers or Members on such terms as the Managers deem appropriate, and in connection therewith,to hypothecate, encumber and grant security interests in the assets of the LLC to secure repayment of the borrowed sums. No debt shall be contracted or liability incurred by or on behalf of the LLC except by the Managers, or to the extent permitted under the Act, by agents or employees of the LLC expressly authorized to contract such debt or incur such liability by the Managers; such acts shall be pursued only with the written consent of both managers. (c) To purchase liability and other insurance to protect the LLC's property and business; (d) To hold and own LLC real and personal properties in the name of the LLC. • 6 � 1 (e) To invest LLC funds in time deposits, short-term governmental obligations, commercial paper or other investments; requires the written consent of both managers. (f) Upon the affirmative vote of the Members holding at least sixty percent(60%)of all Percentage Interests,to sell or otherwise dispose of all or substantially all of the assets of the LLC as part of a single transaction or plan as long as such disposition is not in violation of or a cause of a default under any other agreement to which the LLC may be bound; (g) To execute on behalf of the LLC all instruments and documents,including,without limitation, checks; drafts,note and other negotiable instruments; mortgages or deeds of trust; security agreements;financing statements; documents providing for the acquisition,mortgage or disposition of the LLC's property; assignments,bills of sale; leases;and any other instruments or documents necessary to the business of the LLC; (h) To employ accountants, legal counsel managing agents or other experts to perform services for the LLC; requires the written consent of both managers. (i) To enter into any and all other agreements on behalf of the LLC, in such forms as the Managers may approve; (j) To do and perform all other acts as may be necessary or appropriate to the conduct of the LLC's business. Unless authorized to do so by this Operating Agreement or by the Managers of the LLC,no attorney-in-fact,employee or other agent of the LLC shall have any power or authority to bind the LLC in any way,to pledge its credit or to tender it liable for any purpose. No member shall have any power or authority to bind the LLC unless the Member has been authorized by the Managers to act as an agent of the LLC in accordance with the previous sentence. 7.4 Liability for Certain Acts. Each Manager shall perform his duties as Manager in good faith, in a manner he or she reasonably believes to be in the best interests of the LLC, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. A Manager shall not be liable to the LLC or to any Member for any loss or damage sustained by the LLC or any Member,unless the loss or damage shall have been the result of fraud,deceit, gross negligence,willful misconduct,unlawful acts, or a wrongful taking by the Manager. 7.5 No Exclusive Duty to LLC. A Member or Manager shall not be required to manage the LLC as their sole and exclusive function and they may have other business interests and engage in activities in addition to those relating to the LLC,whether or not such venture may be considered competitive with,or a business opportunity that would be beneficial to,the LLC. Neither the LLC nor any Member shall have any right,by virtue of this Operating Agreement,to share or participate in such other investments or activities of a Manager or to the income or proceeds derived therefrom. 7.6 Bank Accounts. The Managers may from time to time open bank accounts in,the name of the LLC, and the Managers shall be the sole signatory thereon. 7.7 Indemnity of the Members, Employees and Other Agents. The LLC shall,to the maximum extent permitted under the Act,indemnify and make advances for expenses to Managers, its employees, and other agents. 7.8 Resignation. Any Manager of the LLC may resign at any time by giving written notice to the Members of the LLC. The resignation of any Manager shall take effect upon receipt of notice 7 vv,L014VVO VO;40 rtid c .4/01004 W161,1116 r.,(iKC IfIJUU1 • „r, IN WITNESS WHEREOF,this Operating Agreement has been made and executed by the Members effective as of the date first written above. I MEMBER/ • DATE / Ail 64-__ iff2,/,‘„ Stephan A. lass: Co-Manager (Mans: ng Member of Cutting Edge Development L.C.) s11iCL'Ara.J11 .nimallk. I / o . -racym 'er. er • (Manag. _ aa_"" ":'a ember of ADT Storage L.C.) . 1 • I 4 r i . e 1 18 I I