OPERATING AGREEMENT
OF
LAST TECHNOLOGY STOP, LLC
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT is made and entered
into this 13th day of August, 2013, by and among the undersigned parties (who are the initial
Members).
W I T N E S S E T H:
In consideration of the mutual covenants and agreements hereinafter contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
FORMATION OF COMPANY AND
INVESTMENT REPRESENTATIONS
Section 1.01 Formation. On December 13, 2006, the Company was formed as a
Washington Limited Liability Company by executing and delivering the Articles of Organization
to the Secretary of State of Washington in accordance with the provisions of the Washington Act.
Section 1.02
Name. The name of the Company is LAST TECHNOLOGY STOP, LLC.
Section 1.03 Principal Place of Business. The principal place of business of the Company
within the State of Washington is 6410 Eula Street, Redmond, Washington 30300. Company may
locate its place(s) of business and registered office at any other place or places as the Manager may
from time to time deem advisable.
Section 1.04 Registered Office and Registered Agent. The Company's initial registered
office shall be at the office of its registered agent at 600 West Moore Street, Suite 1200, Redmond,
Washington 30300, and the name of its initial registered agent at such address is James A. Doe, Jr.
The registered office and registered agent may be changed from time to time by filing the address
of the new registered office and/or the name of the new registered agent with the Secretary of State
of Washington pursuant to the Washington Act.
Section 1.05 Definitions. Capitalized words and phrases used in this Operating
Agreement have been defined and is set forth in Exhibit "A" attached hereto and incorporated by
reference herein.
ARTICLE II
BUSINESS OF COMPANY
The business of the Company shall be to serve as an investment holding company. The business
may engage in any and all activities necessary, customary, convenient or incidental thereto, to the
extent the same may be legally exercised by limited liability companies under the Washington Act.
The Company shall not engage in any additional business endeavors.
ARTICLE III
NAMES AND ADDRESSES OF MEMBERS
The names and addresses of the initial Members are set forth on Exhibit "B" attached hereto and
incorporated by reference herein.
ARTICLE IV
RIGHTS AND DUTIES OF MANAGER
Section 4.01 Management. The business and affairs of the Company shall be managed
by its Manager. The Manager shall have full and complete authority, power and discretion to
manage and control the business, affairs and properties of the Company, 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 Company's business. Except as otherwise provided herein, at any time
when there is more than one (1) Manager, all decisions and actions of the Managers shall be
approved by a majority of the Managers voting per capita.
Section 4.02 Number, Tenure and Qualifications. The Company initially shall have one
(1) Manager. The initial Manager shall be Sally Fox White, who shall serve as Manager until her
death or resignation. After the death or resignation of Sally Fox White, the number of Managers
of the Company shall be fixed from time to time by Members representing a Majority Interest, but
in no instance shall there be less than one (1) Manager. Successor managers shall be elected by the
affirmative vote of Members representing a Majority Interest, and each Manager so elected shall
hold office until his or her or its successor shall have been elected and qualified or until his or her
earlier death, resignation or removal or its dissolution, resignation or removal, as the case may be.
Managers need not be residents of the State of Washington or Members of the Company.
Section 4.03 Tax Management. Without limiting the generality of Section 4.01 hereof,
the Manager shall have the sole power and authority on behalf of the Company to make any and
all elections for federal, state, and local tax purposes including, without limitation, any election, if
permitted by applicable law: (1) to adjust the basis of Property pursuant to Code Sections 754,
734(b) and 743(b), or comparable provisions of state or local law, in connection with Company
distributions and transfers of interests in the Company; (2) to extend the statute of limitations for
assessment of tax deficiencies against the Members with respect to adjustments to the Company's
federal, state, or local tax returns; and (3) to the extent provided in Code Sections 6221 through
6231, to represent the Company and the Members before taxing authorities or courts of competent
jurisdiction in tax matters affecting the Company and the Members in their capacities as Members,
and to file any tax returns and execute any agreements or other documents relating to or affecting
such tax matters, including agreements or other documents that bind the Members with respect to
such tax matters or otherwise affect the rights of the Company and the Members. The Manager is
specifically authorized to act as the "Tax Matters Member" under the Code and in any similar
capacity under state or local law. The provisions on limitations of liability of the Managers and
Members and indemnification set forth in Article IV hereof shall be fully applicable to the Tax
Matters Member in his or her or its capacity as such. The Tax Matters Member may resign at any
time by giving written notice to the Company and each of the other Members. Upon the resignation
of the Tax Matters Member, a new Tax Matters Member may be elected by the vote of Members
representing a Majority Interest.
2
Section 4.04 Liability for Certain Acts. No Manager has guaranteed or shall have any
obligation with respect to the return of a Member's Capital Contributions or profits from the
operation of the Company. Notwithstanding Section 14-11-305(1) of the Washington Act, no
Manager shall be liable to the Company or to any Member for any loss or damage sustained by the
Company or any Member except loss or damage resulting from intentional misconduct or knowing
violation of law or a transaction for which such Manager received a personal benefit in violation
or breach of the provisions of this Operating Agreement. The Manager shall be entitled to rely on
information, opinions, reports or statements, including but not limited to financial statements or
other financial data prepared or presented by: (i) any one or more Members, Managers, Officers
or employees of the Company whom the Manager reasonably believes to be reliable and competent
in the matter presented, (ii) legal counsel, public accountants, or other persons as to matters the
Manager reasonably believes are within the person's professional or expert competence, or (iii) a
committee of Managers of which he or she is not a member if the Manager reasonably believes
the committee merits confidence.
Section 4.05 Manager Has No Exclusive Duty to Company. No Manager shall be
required to manage the Company as the Manager's sole and exclusive function and any Manager
may have other business interests and may engage in other activities in addition to those relating
to the Company. Neither the Company nor any Member shall have any right, by virtue of this
Operating Agreement, to share or participate in such other investments or activities of any Manager
or to the income or proceeds derived therefrom. No Manager shall incur any liability to the
Company or to any of the Members as a result of engaging in any other business or ventures.
Section 4.06
Compensation and Loans.
(a)
Compensation and Reimbursement. Except as otherwise provided in this
Section 4.11, no Member shall receive any salary, fee, or draw for services rendered to or
on behalf of the Company, nor shall any Member be reimbursed for any expenses incurred
by such Member on behalf of the Company.
(b)
Expenses. Any Manager may charge the Company for any direct expenses
reasonably incurred in connection with the business of the Company.
(c)
Compensation. The salaries and other compensation of the Managers shall
be fixed from time to time by the Manager.
(d)
Loans. Any Person may, with the consent of the Managers, lend or advance
money to the Company. If any Member shall make any loan or loans to the Company or
advance money on its behalf, the amount of any such loan or advance shall not be treated
as a Capital Contribution but shall be a debt due from the Company. The amount of any
such loan or advance by a lending Member shall be repayable out of the Company's cash
and shall bear interest at such rate as the Managers and the lending Member shall agree but
not in excess of the maximum rate permitted by law. If any Manager, or an Affiliate of any
Manager, is the lending Member, the rate of interest shall be determined by the Managers
taking into consideration, without limitation, prevailing interest rates and the interest rates
the lender is required to pay in the event such lender has itself borrowed funds to loan or
advance to the Company and the terms and conditions of such loan, including the rate of
3
interest, shall be no less favorable to the Company than if the lender had been an
independent third party. None of the Members shall be obligated to make any loan or
advance to the Company.
Section 4.07 Temporary Investments. All Property in the form of cash not otherwise
invested shall be deposited for the benefit of the Company in one or more accounts of the Company
or any of its Affiliates, maintained in such financial institutions as the Manager shall determine or
shall be invested in short-term liquid securities or other cash-equivalent assets or shall be left in
escrow, and withdrawals shall be made only in the regular course of Company business on such
signature or signatures as the Manager may determine from time to time.
ARTICLE V
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 5.01 Limitation on Liability. Each Member's liability shall be limited as set forth
in this Operating Agreement, the Washington Act and other applicable law.
Section 5.02 No Liability for Company Obligations. No Member will have any personal
liability for any debts or losses of the Company beyond his or its respective Capital Contributions.
Section 5.03 List of Members. Upon the written request of any Member, the Company
shall provide a list showing the names, addresses, Membership Interest and Economic Interest of
all Members and any other information required to be provided to Members by the Washington
Act.
Section 5.04 Priority and Return of Capital. Except as may be expressly provided in
Article VIII, no Member or Economic Interest Holder shall have priority over any other Member
or Economic Interest Holder, either as to the return of Capital Contributions or as to Profits, Losses
or distributions. This Section shall not apply to loans (as distinguished from Capital Contributions)
which a Member makes to the Company.
ARTICLE VI
MEETINGS OF MEMBERS; CONSENT
Section 6.01
Meetings of Members.
(a)
Meetings of the Members may be called by the Managers and shall be called
upon the written request of Members holding twenty-five percent (25%) or more of the
Ownership Percentages. The call shall state the nature of the business to be transacted.
Notice of any such meeting shall be given to all Members not less than ten (10) business
days nor more than thirty (30) days prior to the date of such meeting. Members may vote
in person or by proxy at such meeting. Whenever the vote or consent of Members is
permitted or required under the Operating Agreement, such vote or consent may be given
at a meeting of Members or may be given in accordance with the procedure prescribed in
Section 6.02 hereof. Except as otherwise expressly provided in this Operating Agreement,
the vote of Members representing a Majority Interest shall control.
4
(b)
Unless otherwise expressly provided herein or required under applicable
law, Members who have an interest (economic or otherwise) in the outcome of any
particular matter upon which the Members vote or consent may vote or consent upon any
such matter and their Membership Interests, vote or consent, as the case may be, shall be
counted in the determination of whether the requisite matter was approved by the Members.
(c)
For the purpose of determining the Members entitled to vote on, or to vote
at, any meeting of the Members or any adjournment thereof, the Managers or the Members
requesting such meeting may fix, in advance, a date as the record date for any such
determination. Such date shall not be more than thirty (30) days or less than ten (10)
business days before any such meeting.
(d)
Each Member may authorize any Person or Persons to act for him by proxy
on all matters in which a Member is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. Every proxy must be signed by the
Member or his attorney-in-fact. Such proxy shall be filed with the Company before or at
the time of the meeting. No proxy shall be valid after the expiration of eleven (11) months
from the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Member executing it.
(e)
When any notice is required to be given to any Member, a waiver thereof in
writing signed by the person entitled to such notice, whether before, at, or after the time
stated therein, shall be equivalent to the giving of such notice.
(f)
Unanimous Consent. The Company may take any action contemplated
under this Operating Agreement if approved by the unanimous consent of the Members
acting without a meeting, such consent to be provided in writing, or by telephone or
facsimile, if such telephone conversation or facsimile is followed by a hard copy of the
telephone conversation or facsimilied communication sent by registered or certified mail,
postage and charges prepaid, addressed as described in Section 15.15 hereof, or to such
other address as such Person may from time to time specify by notice to the Members.
Such action may be taken without a meeting if the action is evidenced by one or more
written consents describing the action taken, signed by all of the Members entitled to vote
and required to approve such action and delivered to the Company for inclusion in the
minutes or for filing with the Company records. Action taken under this Section is effective
when all of the Members entitled to vote on such action have signed the consent, unless
the consent specifies a different effective date. The record date for determining Members
entitled to take action without a meeting shall be the date the first Member signs a written
consent.
(g)
Procedure for Consent. In any circumstances requiring the approval or
consent of the Members as specified in this Operating Agreement, such approval or consent
shall, except as expressly provided to the contrary in this Operating Agreement, be given
or withheld in the sole and absolute discretion of the Members and conveyed in writing to
the Manager not later than thirty (30) days after such approval or consent was requested by
the Manager. The Manager may require a response within a shorter time, but not less than
ten (10) business days. A failure to respond in any such time period shall constitute a vote
5
which is consistent with the Manager's recommendation with respect to the proposal. If the
Manager receives the necessary approval or consent of the Members to such action, the
Manager shall be authorized and empowered to implement such action without further
authorization by the Members.
ARTICLE VII
CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS
Section 7.01 Members' Capital Contributions. Each Member shall contribute the
property or the amount set forth in Exhibit "B" hereto as his or its share of the Initial Capital
Contribution.
Section 7.02 Additional Capital Contributions. To the extent approved by the Manager
from time to time, one or more Members may be permitted to make additional Capital
Contributions if and to the extent such Members so desire, and if the Manager determines that such
additional Capital Contributions are necessary or appropriate in connection with the conduct of the
Company's business (including, without limitation, expansion or diversification). In such event,
the Members shall have the opportunity (but not the obligation) to participate in such additional
Capital Contributions on a pro rata basis in accordance with their Ownership Percentages.
Section 7.03 Rules Governing Capital. Except as otherwise expressly provided in this
Operating Agreement or required by law:
(a)
no Owner may withdraw any Capital Contribution from the Company;
(b)
an Owner shall not receive out of the Company's property any part of such
Owner's Capital Contribution until all liabilities of the Company, except liabilities to
Owners on account of their Capital Contributions, have been paid or there remains property
of the Company sufficient to pay them;
(c)
no Owner shall be required to make loans to the Company;
(d)
neither a loan by an Owner to the Company nor its repayment by the
Company shall have any effect on any Owner's Capital Account or Economic Interest;
(e)
an Owner, irrespective of the nature of such Owner's Capital Contribution,
has only the right to demand and receive cash in return for such Capital Contribution; and
(f)
an Owner who receives a return of all or part of his or its Capital
Contribution in accordance with the terms of this Operating Agreement shall nevertheless
be liable to the Company for the re-contribution of capital as necessary to discharge
liabilities of the Company which arose before the return of such Capital Contribution.
Section 7.04 Loans to Company. To the extent approved by the Manager, any Owner
may make a secured or unsecured loan to the Company.
6
ARTICLE VIII
DISTRIBUTIONS TO OWNERS
Section 8.01 Distributions. All Distributable Cash, if any, shall be distributed, at such
times as the Manager may determine, among the Owners on a pro rata basis in accordance with
their Ownership Percentages at the time of the distribution; provided however, that following the
dissolution of the Company as provided in Section 13.01 hereof, distributions shall be made in
accordance with Section 13.03 hereof.
Section 8.02 Amounts Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment, distribution, or allocation to
the Company or the Owners shall be treated as amounts distributed to the Owners pursuant to this
Article VIII for all purposes under this Operating Agreement. The Company is authorized to
withhold from distributions, or with respect to allocations, to the Owners and to pay over to any
federal, state, or local government any amounts required to be so withheld pursuant to the Code or
any provisions of any other federal, state, or local law, and shall allocate any such amounts to the
Owners with respect to which such amount was withheld.
Section 8.03 Limitation Upon Distributions. No distribution shall be made to the Owners
if prohibited by O.C.G.A. §14-11-407.
Section 8.04 Interest On and Return of Capital Contributions. No Owner shall be entitled
to interest on his or its Capital Contribution or to the return of his or its Capital Contribution,
except as otherwise specifically provided for herein.
Section 8.05 Interim Distributions. The Company may make interim distributions to the
Owners in accordance with Section 8.01 hereof.
ARTICLE IX
ALLOCATIONS OF PROFITS AND LOSSES
The provisions of this Operating Agreement regarding the allocation of Profits, Losses, items of
Company income, gain, loss, or deduction, and any other Company tax items, are set out in Exhibit
"C" attached hereto and by reference made a part hereof.
ARTICLE X
BOOKS AND RECORDS
Section 10.01 Accounting Period. The Company's accounting period shall be the calendar
year.
Section 10.02 Books, Audits and Records. At the expense of the Company, the Manager
shall maintain records and accounts of all operations and expenditures of the Company. The
Company shall keep at its principal place of business the following records:
(a)
A current list of the full name and last known address of each Member,
Economic Interest Holder and Manager;
7
(b)
Copies of records to enable a Member to determine the relative voting
rights, if any, of the Members;
(c)
thereto;
A copy of the Articles of Organization of the Company and all amendments
(d)
Copies of the Company's federal, state, and local income tax returns and
reports, if any, for the three most recent years;
(e)
thereto; and
(f)
Copies of this Operating Agreement, together with any amendments
Copies of any financial statements of the Company for the three most recent
years.
Section 10.03 Tax Returns. The Manager shall cause the preparation and timely filing of
all tax returns required to be filed by the Company pursuant to the Code and all other tax returns
deemed necessary and required in each jurisdiction in which the Company does business. Copies
of such returns, or pertinent information therefrom, shall be furnished to each Member within a
reasonable time after the end of the Company's Fiscal Year.
Section 10.04 Annual Reports. Within a reasonable period after the end of each Company
Fiscal Year, each Member shall be furnished with pertinent information regarding the Company
and its activities during such period.
ARTICLE XI
DISSOLUTION AND TERMINATION
Section 11.01 Dissolution.
(a)
The Company shall be dissolved upon the occurrence of any of the
following events:
(i)
when the period fixed for the duration of the Company shall expire
pursuant to Section 1.05 hereof;
(ii)
by the written agreement of the Manager and all the Members; or
(iii)
entry of a decree of judicial dissolution under O.C.G.A. § 14-11-
603(a).
(b)
A Member shall not voluntarily withdraw or take any other voluntary action
which causes an Event of Dissociation. A Member who withdraws or suffers or incurs an
Event of Dissociation or whose status as a Member is otherwise terminated (a
"Withdrawing Member"), regardless of whether such termination was the result of a
voluntary act by such Withdrawing Member, shall become an Economic Interest Holder.
8
(c)
Damages for breach of Section 13.01(b) hereof shall be monetary damages
only (and no specific performance), and such damages may be offset against distributions
by the Company to which the Withdrawing Member would otherwise be entitled.
(d)
If a Member who is an individual dies or a court of competent jurisdiction
adjudges him to be incompetent to manage his person or his property, the Member's
executor, administrator, guardian, conservator, or other legal representative may exercise
all of the Member's rights for the purpose of settling his estate or administering his
property.
Section 11.02 Effect of Dissolution. Upon dissolution, the Company shall cease to carry
on its business, except as permitted by O.C.G.A. §14-11-605. Upon dissolution, the Managers
shall file a statement of commencement of winding up pursuant to O.C.G.A. §14-11-606 and
publish the notice permitted by O.C.G.A. §14-11-608.
Section 11.03 Winding Up, Liquidation and Distribution of Assets.
(a)
Upon dissolution, an accounting shall be made by the Company's
independent accountants of the accounts of the Company and of the Company's assets,
liabilities and operations, from the date of the last previous accounting until the date of
dissolution. The Manager, or if none, the Person or Persons selected by Members
representing a Majority Interest (the "Liquidators"), shall immediately proceed to wind up
the affairs of the Company.
(b)
If the Company is dissolved and its affairs are to be wound up, the
Liquidators shall:
(i)
Sell or otherwise liquidate all of the Company's assets as promptly
as practicable (except to the extent the Liquidators may determine to distribute any
assets to the Members in kind);
(ii)
Allocate any profit or loss resulting from such sales to the Members
and Economic Interest Holders in accordance with Article IX hereof;
(iii)
Discharge all liabilities of the Company, including liabilities to
Members and Economic Interest Holders who are creditors, to the extent otherwise
permitted by law, other than liabilities to Members and Economic Interest Holders
for distributions, and establish such reserves as may be reasonably necessary to
provide for contingent liabilities of the Company;
(iv)
Distribute the remaining assets in the following order:
(A)
If any assets of the Company are to be distributed in kind,
the net fair market value of such assets as of the date of dissolution shall be
determined by independent appraisal or by agreement of all the Members.
Such assets shall be deemed to have been sold as of the date of dissolution
for their fair market value, and the Capital Accounts of the Members and
9
Economic Interest Holders shall be adjusted pursuant to the provisions of
this Operating Agreement to reflect such deemed sale.
(B)
The positive balance (if any) of each Owner's Capital
Account (as determined after taking into account all Capital Account
adjustments for the Company's taxable year during which the liquidation
occurs) shall be distributed to the Owners, either in cash or in kind, as
determined by the Liquidators, with any balance in excess thereof being
distributed in proportion to the Owners' respective Ownership Percentages.
Any such distributions to the Owners in respect of their Capital Accounts
shall be made in accordance with the time requirements set forth in Section
1.704-1(b)(2)(ii)(b)(2) of the Treasury Regulations.
(c)
Notwithstanding anything to the contrary in this Operating Agreement,
upon a liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations,
if any Owner (including any Manager) has a deficit Capital Account (after giving effect to
all contributions, distributions, allocations and other Capital Account adjustments for all
taxable years, including the year during which such liquidation occurs), such Owner shall
have no obligation to make any Capital Contribution, and the negative balance of such
Owner's Capital Account shall not be considered a debt owed by such Owner to the
Company or to any other Person for any purpose whatsoever.
(d)
Upon completion of the winding up, liquidation and distribution of the
assets, the Company shall be deemed terminated.
(e)
The Manager and the Members shall comply with any applicable
requirements of applicable law pertaining to the winding up of the affairs of the Company
and the final distribution of its assets.
Section 11.04 Certificate of Termination. When all debts, liabilities and obligations have
been paid and discharged or adequate provisions have been made therefor and all of the remaining
property and assets have been distributed to the Owners, a Certificate of Termination may be
executed and filed with the Secretary of State of Washington in accordance with O.C.G.A.
§14-11-610.
Section 11.05 Return of Contribution Nonrecourse to Other Owners. Except as provided
by law or as expressly provided in this Operating Agreement, upon dissolution, each Owner shall
look solely to the assets of the Company for the return of his or its Capital Account. If the Company
property remaining after the payment or discharge of the debts and liabilities of the Company is
insufficient to return the Capital Account of one or more Owners, including, without limitation,
all or any part of that Capital Account attributable to Capital Contributions, then such Owner or
Owners shall have no recourse against any other Owner or any Manager.
ARTICLE XII
POWER OF ATTORNEY
Section 12.01 Managers as Attorneys-In-Fact. Each Member hereby makes, constitutes,
and appoints each Manager and each successor Manager, with full power of substitution and
10
resubstitution, his or its true and lawful attorney-in-fact for him or it and in his or its name, place,
and stead and for his or its use and benefit, to sign, execute, certify, acknowledge, swear to, file,
and record (a) all articles or certificates of organization, amended name or similar certificates, and
other certificates and instruments (including counterparts of this Operating Agreement) which the
Manager may deem necessary or appropriate to be filed by the Company under the laws of the
State of Washington or any other state or jurisdiction in which the Company is doing or intends to
do business; (b) any and all amendments or changes to this Operating Agreement and the
instruments described in (a), as now or hereafter amended, which the Manager may deem
necessary or appropriate to effect a change or modification of the Company in accordance with the
terms of this Operating Agreement, including, without limitation, amendments or changes to
reflect (i) the exercise by the Manager of any power granted to them under this Operating
Agreement; (ii) any amendments adopted by the Members in accordance with the terms of this
Operating Agreement; (iii) the admission of any new Member; and (iv) the disposition by any
Member of its Membership Interest; (c) all certificates of cancellation and other instruments which
the Manager may deem necessary or appropriate to effect the dissolution and termination of the
Company pursuant to the terms of this Operating Agreement; and (d) any other instrument which
is now or may hereafter be required by law to be filed on behalf of the Company or is deemed
necessary or appropriate by the Manager to carry out fully the provisions of this Operating
Agreement in accordance with its terms. Each Member authorizes each such attorney-in-fact to
take any further action which such attorney-in-fact shall consider necessary or advisable in
connection with any of the foregoing, hereby giving each such attorney-in-fact full power and
authority to do and perform each and every act or thing whatsoever requisite or advisable to be
done in connection with the foregoing as fully as such Member might or could do personally, and
hereby ratifying and confirming all that any such attorney-in-fact shall lawfully do or cause to be
done by virtue thereof or hereof.
Section 12.02 Nature of Special Power. The power of attorney granted pursuant to this
Article XIV:
(a)
Is a special power of attorney coupled with an interest and is irrevocable;
(b)
May be exercised by any such attorney-in-fact by listing the Members
executing any agreement, certificate, instrument, or other document with the single
signature of any such attorney-in-fact acting as attorney-in-fact for such Members; and
(c)
Shall survive the death, disability, legal incapacity, bankruptcy, insolvency,
dissolution, or cessation of existence of a Member and shall survive the delivery of an
assignment by a Member of the whole or a portion of his or its Membership Interest, except
that where the assignment is of such Member's entire Membership Interest and the
assignee, with the requisite consent of the Manager and the other Members, is admitted as
a substituted Member, the power of attorney shall survive the delivery of such assignment
for the sole purpose of enabling any such attorney-in-fact to effect such substitution.
11
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Application of Washington Law. This Operating Agreement, and its
application and interpretation hereof, shall be governed exclusively by its terms and by the laws
of the State of Washington, and specifically the Washington Act.
Section 13.02 No Partnership Intended for Non-Tax Purposes. The Members have formed
the Company under the Washington Act and expressly disavow any intention to form a partnership
under Washington's Uniform Partnership Act, Washington's Uniform Limited Partnership Act or
the partnership act or laws of any other state. The Members do not intend to be partners one to
another or partners as to any third party.
Section 13.03 Rights and Remedies Cumulative. The rights and remedies provided by this
Operating Agreement are cumulative and the use of any one right or remedy by any party shall not
preclude or waive the right to use any or all other remedies. Such rights and remedies are given in
addition to any other rights the parties may have by law, statute, ordinance or otherwise.
Section 13.04 Severability. If any provision of this Operating Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any
extent, the remainder of this Operating Agreement and the application thereof shall not be affected
and shall be enforceable to the fullest extent permitted by law.
Section 13.05 Federal Income Tax Elections. All elections required or permitted to be
made by the Company under the Code shall be made by the Manager. For all purposes permitted
or required by the Code, the Members constitute and appoint the Manager as Tax Matters Member,
or if the Manager is no longer a Member, then such other Member as shall be elected by the vote
of Members representing a Majority Interest. The provisions on limitations of liability of the
Manager and Members and indemnification set forth in Article IV hereof shall be fully applicable
to the Tax Matters Member in his or its capacity as such. The Tax Matters Member may resign at
any time by giving written notice to the Company and each of the other Members. Upon the
resignation of the Tax Matters Member, a new Tax Matters Member may be elected by the vote of
Members representing a Majority Interest.
Section 13.06 Certification of Non-Foreign Status. In order to comply with §1445 of the
Code and the applicable Treasury Regulations thereunder, in the event of the disposition by the
Company of a United States real property interest as defined in the Code and Treasury Regulations,
each Member shall provide to the Company, an affidavit stating, under penalties of perjury, (i) the
Member's address, (ii) the Member's United States taxpayer identification number, and (iii) that
the Member is not a foreign person as that term is defined in the Code and Treasury Regulations.
Failure by any Member to provide such affidavit by the date of such disposition shall authorize the
Members to withhold ten percent (10%) of each such Member's distributive share of the amount
realized by the Company on the disposition.
Section 13.07 Determination of Matters Not Provided For In This Operating Agreement.
The Manager shall decide any questions arising with respect to the Company and this Operating
Agreement which are not specifically or expressly provided for in this Operating Agreement.
12
Section 13.08 Time. TIME IS OF THE ESSENCE OF THIS OPERATING
AGREEMENT, AND TO ANY PAYMENTS, ALLOCATIONS AND DISTRIBUTIONS
SPECIFIED UNDER THIS OPERATING AGREEMENT.
IN WITNESS WHEREOF, the parties have entered into this Operating Agreement as of the day
first above set forth.
MANAGER:
[Seal]
Janet G. Rodriguez
13
MEMBER SIGNATURE PAGE FOR OPERATING AGREEMENT OF
LAST TECHNOLOGY STOP, LLC
MEMBERS:
[Seal]
Joseph Andrew White
[Seal]
Sally Fox White
14
EXHIBIT "A"
Glossary of Terms
"Adjusted Capital Account Deficit." With respect to any Owner, the deficit balance, if any, in such
Owner's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the
following adjustments:
(i)
Credit to such Capital Account any amounts which such Owner is
obligated to restore pursuant to any provision of this Operating Agreement or is
deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii)
Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
"Affiliate." With respect to any Person, (i) in the case of an individual, any relative of such Person,
(ii) any officer, director, trustee, partner, member, manager, employee or holder of ten percent
(10%) or more of any class of the voting securities of or equity interest in such Person, (iii) any
corporation, partnership, limited liability company, limited liability partnership, trust or other
Entity controlling, controlled by or under common control with such Person; or (iv) any officer,
director, trustee, partner, member, manager, employee or holder of ten percent (10%) or more of
the outstanding voting securities of any corporation, partnership, limited liability company, limited
liability partnership, trust or other Entity controlling, controlled by or under common control with
such Person.
"Articles of Organization." The Articles of Organization of LAST TECHNOLOGY STOP, LLC,
as filed with the Secretary of State of Washington, as the same may be amended from time to time.
"Capital Account." A capital account maintained in accordance with the rules contained in
Treasury Regulation §1.704-1(b)(2)(iv) as amended from time to time. Subject to the foregoing,
an Owner's Capital Account generally shall be:
(i)
increased by (A) the amount of money contributed by such Owner
to the Company, including Company liabilities assumed by such Owner; (B) the
Gross Asset Value of property contributed by such Owner to the Company (net of
liabilities secured by such property that the Company is considered to assume or
take subject to under Section 752 of the Code); and (C) allocations to such Owner
of Profits (and items thereof) and items of income and gain that are specially
allocated to such Owner pursuant to Section 9.03 hereof as set forth in Exhibit "C"
attached hereto; and
15
(ii)
decreased by (A) the amount of money distributed to such Owner
by the Company, including such Owner's individual liabilities assumed by the
Company; (B) the Gross Asset Value of all property distributed to such Owner by
the Company (net of liabilities secured by such property that such Owner is
considered to assume or take subject to under Section 752 of the Code); and (C)
allocations to such Owner of Losses (and items thereof) and items of loss and
deduction that are specially allocated to such Owner pursuant to Section 9.03 hereof
as set forth in Exhibit "C" attached hereto;
Upon the transfer of an interest in the Company, the transferee shall succeed to the Capital Account
of the transferor with respect to the transferred Company interest unless such transfer results in a
termination of the Company pursuant to Section 708 of the Code.
"Capital Contribution." Any contribution by an Owner to the capital of the Company, in cash or
property, whenever made.
***
16