Fillable Printable Template For Llc Operating Agreement

Template For Llc Operating Agreement

OPERATING AGREEMENT

PICO REALTY, LLC

THIS OPERATING AGREEMENT (the "Agreement") is made and entered

into effective as of the 1st day of January, 2010, by and between Beth L. Kelley,

Frederick G. Lorraine, Heidi L. Burgiel, Stanley W. Burgiel, Julianne Lorraine

Milburn, Jonathan Lorraine, Dorothy L. Gregory, and Jack F. Yonally, Trustee of

the Lillian Yonally Irrevocable Trust (collectively, the "Members").

The parties to this Agreement, desiring to form a limited liability company

known as Pico Realty, LLC (the "Company") pursuant to the provisions of the

Massachusetts Limited Liability Company Act, Massachusetts General Laws,

Chapter 156C (the "Act"), hereby constitute themselves a limited liability company

for the purposes and on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises of the parties,

and of good and valuable consideration, the receipt and sufficiency of which are

hereby acknowledged, it is mutually agreed by and among the parties as follows:

ARTICLE I - DEFINITIONS

1.1 Definitions. Capitalized terms used in this Agreement and not

otherwise defined shall have the meanings assigned to them below:

(a) "Agreement" means this Operating Agreement, as amended,

modified, supplemented or restated from time to time.

(b) "Certificate of Formation" means the Certificate of Formation of

the Company and any and all amendments thereto and restatements thereof filed

on behalf of the Company with the Commonwealth of Massachusetts Secretary of

State's Office pursuant to the Act.

Schedule A attached hereto, as the same may be amended from time to time.

(d) "Percentage Interest" shall refer to the percentage ownership

interest of each Member in the Company. The Percentage Interests of the Members

are set forth on Schedule A attached hereto and incorporated herein for all purposes

by this reference, as the same may be amended from time to time.

ARTICLE II - THE COMPANY

2.1 Formation.

(a) The Members hereby agree to form the Company as a limited

liability company under and pursuant to the provisions of the Act and agree that

the rights, duties and liabilities of the Members shall be as provided in the Act,

except as otherwise provided herein.

(b) The name and mailing address of each Member and the amount

contributed to the capital of the Company shall be listed on Schedule A, and upon

execution of this Agreement shall be Members of the Company.

2.2 Name; Principal Place of Business. The name of the Company shall

be Pico Realty, LLC. The principal office of the Company shall be located at 51

Angelica Avenue, Mattapoisett, Massachusetts 02739, or at such other place as the

Members may from time to time determine.

2.3 Term. The term of the Company shall commence on the date of the

filing of the Certificate of Formation in the Massachusetts Secretary of State's

Office and shall continue until December 31, 2059 unless dissolved before such date

in accordance with the provisions of this Agreement.

2.4 Registered Agent. The Company's registered agent and office in

Massachusetts shall be as set forth in the Certificate of Formation of the Company

filed with Massachusetts Secretary of State's Office, as the same may from time to

time be amended.

2.5 Fiscal Year. The Company's fiscal year (the "Fiscal Year") shall be

the calendar year.

2.6 Taxation as Partnership. The Company shall be treated as a

partnership for U.S. federal income tax purposes.

ARTICLE III - PURPOSE AND POWERS OF THE COMPANY

3.1 Nature of Business. The business of the Company shall be to own

(directly or through a nominee), invest in, develop, improve, operate, manage, lease

and/or sell real estate in Mattapoisett, Plymouth County, Massachusetts, located at

38 Pico Beach Road, the "Premises". The Company shall also engage in such other

activities as may be necessary or incidental to the foregoing business activities.

3.2 Powers of the Company. The Company shall have the power and

authority to take any and all actions necessary, appropriate, proper, advisable,

convenient or incidental to or for the furtherance of the purpose set forth in Section

3.1, including, but not limited to the powers permitted under the Act.

ARTICLE IV - CAPITAL CONTRIBUTIONS AND ACCOUNTS

4.1 Capital Contributions. Each Member has transferred and

contributed to the capital of the Company the capital amounts (the "Capital

Contributions") set forth on Schedule A.

4.2 Capital Accounts; Assets. An individual capital account (each a

"Capital Account") shall be established and maintained for each Member in

accordance with applicable regulations under the Internal Revenue Code of 1986 as

from time to time amended (the "Code"). A Member shall not be entitled to interest

on his or her Capital Contribution or Capital Account, or to withdraw any part of

his or her Capital Contribution or Capital Account. No Member shall have any

right in or to any asset or property of the Company, but shall only have a right to

the distributions as and when provided for in Sections 8.2 and 9.2 hereof.

4.3 Maintenance of Capital Accounts. To the extent consistent with such

regulations, there shall be credited to each Member's Capital Account the amount of

any contribution of capital made by such Member to the Company, and such

Member's share of the net profits of the Company, and there shall be charged

against each Member's Capital Account the amount of all distributions to such

Member, and such Member's share of the net losses of the Company.

4.4 Contribution to Operating Account. In recognition that the Company

may not receive income sufficient to pay for insurance, real estate taxes,

maintenance and the like, the Members agree to contribute annually as needed to

an Operating Account for such purposes as may be assessed from year to year.

ARTICLE V - MEMBERS

5.1 Powers of Members. The Members shall have the power to exercise

any and all rights or powers granted to the Members pursuant to the express terms

of this Agreement. All Members shall constitute one class or group of Members of

the Company for all purposes of the Act.

5.2 Admission of Members. No person shall be admitted as a Member

of the Company after the date of formation of the Company without the unanimous

written consent or approval of all the Members at the time of such admission,

regardless of whether such person has previously acquired any rights in any

existing Member's interest in the Company by assignment, sale or otherwise. A

Member's admission to the Company shall become effective upon such Member's

execution of a counterpart of this Agreement, or such other instrument as the

Members may require, to evidence his or her admission.

5.3 Transfer of Company Interest. No Member may transfer, sell,

assign, pledge, mortgage, or dispose of or grant a security interest in his or her

interest in the Company (each, a "Transfer") without the prior unanimous written

consent of all the Members at the time of such Transfer. Any purported Transfer in

contravention of this Section 5.3 shall be null and void.

5.4 Rights and Obligations of Assignee. The purchaser or other

transferee of a Member's interest in the Company shall have only the right to

receive the distributions and allocations of profits or losses to which the Member

would have been entitled, and the obligation to contribute to the Operating Account

under this Agreement with respect to the transferred interest and shall not have or

enjoy any right to participate in the management of the Company or to receive any

financial information or reports relating to the Company or any other rights of a

Member unless and until the purchaser or transferee is admitted as a Member

pursuant to Section 5.2.

5.5 Allowed Transfer of Company Interest. Notwithstanding the

foregoing regarding admission of Members and transfer of Company interest, a

Member may transfer during life or at death a Company interest without the prior

written consent of other Members, to lineal descendants or to a trust for the benefit

of a spouse for life and then to lineal descendants or another Member, or to a trust

for lineal descendants or another Member, and on receipt of a transfer, such persons

shall become Members. Beneficiaries of a trust shall be responsible for assessments

made to Members in the event a trust holding an interest fails to contribute an

assessment when due.

5.6 Transfer on Death. Except as provided above, a transferee from an

estate or trust on the death of a Member shall not become a Member. Surviving

Members shall have the right to purchase, pro rata, the whole of the Company

interest of the deceased Member. Election to purchase shall be made within three

(3) months of the appointment of an executor or administrator ("estate

representative"), or if the Company interest is held in trust, four (4) months from

the date of death, and the term "estate representative" will include trustees. The

value of a Membership shall be determined by an appraisal of the Premises, as

adjusted under ARTICLE IV of this Agreement. The value of the Premises shall be

determined by a fair market value appraisal by a registered appraiser. If the

purchaser or purchasers cannot agree upon an acceptable appraiser within thirty

(30) days of notice of the exercise of the option to purchase, the estate

representative and the purchaser or purchasers shall each select an independent

appraiser and said independent appraisers so selected shall (by majority vote) select

a third appraiser, who shall be qualified as aforesaid. Said third appraiser shall

appraise the Premises. Notwithstanding the foregoing, if either the estate

representative or purchaser fails to select an appraiser within the above 30-day

period, then the appraiser selected by the other shall make the required appraisal.

The appraisal shall be conclusive and binding upon the estate representative and

the purchaser or purchasers. The expenses of said appraisal shall be paid one-half

by the estate representative and one-half by the purchaser or purchasers.

In the event the whole of a Company interest is not purchased by other

Members, the person to whom the interest was left shall become a Member.

5.7 Partition. Each Member waives any and all rights that he or she

may have to maintain an action for partition of the Company's property, and any

Transferee who is not a Member shall, by acceptance of a transferred interest in the

Company, be deemed to have waived such rights of partition.

5.8 Sale of Company Interest. A Member may sell a Company interest,

first by obtaining unanimous written consent at a price negotiated between the

selling Member and the buyer, and second, by offering to the remaining Members a

right to purchase, pro rata, the whole of the interest at the negotiated price, such

right be exercised within one (1) month of the date of the written consent. In the

event the whole of the interest is not purchased by the remaining Members, the

selling Member may sell to the buyer at the price negotiated.

5.9 Sale of Company Interest, No Buyer. In the event a Member wishing

to sell an interest in the Company ("retiring Member") does not have a buyer, and

no other Member wishes to purchase, the retiring Member may, upon unanimous

written consent of the Members, deliver the Company interest to the Company to be

held in escrow, except, however, only upon delivery to the Company of an agreement

of another Member to pay all assessments that will become due during the escrow

period on the account of such interest. The said agreement to pay assessments may

include recovery against the Capital Account and assignment of the use of the

property of the retiring Member to the paying Member. In the event the property is

sold during an escrow period, the share to be distributed to the retiring Member

shall be valued as of the date the interest is sold. During an escrow period, the

retiring Member shall have no membership rights under ARTICLE VI and

ARTICLE VII, below, but shall have the continuing right to sell the Company

interest.

ARTICLE VI - MANAGEMENT

6.1 Management, Duties, and Restrictions.

(a) General Management. The management and control of the

operations of the Company and the maintenance, development, sale and leasing of

the property of the Company shall rest with the Members.

(b) Powers of Members. Subject to such limitations as may be

imposed pursuant to the terms of this Agreement, the Act or by operation of law,

the Members are and shall be authorized and empowered to carry out and

implement the purposes of the Company. In that connection, the powers of the

Members shall include, but not be limited to, the following:

(1) to engage personnel, attorneys, accountants, or such other

persons as may be deemed necessary or advisable;

(2) to authorize or approve all actions with respect to

distributions by the Company, dispositions of the assets of the Company or its

nominee, execution of leases, mortgage contracts, bonds, promissory notes, loan

agreements and other instruments on behalf of the Company or its nominee, and to

execute any agreements, instruments or documents relating to or affecting such

matters;

(3) to acquire, mortgage, improve and convey real property

and interests therein, including, but not limited to, easements and rights-of-way,

and to execute any agreements, instruments or documents relating to or affecting

such matters;

(4) to open, maintain, and close bank accounts and to draw

checks and other orders for the payment of money; and

(5) to take such other actions and to incur such reasonable

expenses on behalf of the Company as may be necessary or advisable in connection

with the conduct of the affairs of the Company.

Members shall not be liable to the Company or to any other Members for any

actions taken in good faith and reasonably believed to be in the best interest of the

Company or which are taken upon the written advice of legal counsel for the

Company.

(d) Reliance on Act of Members. Third parties dealing with the

Company shall be entitled to rely conclusively upon the power and authority of each

of the Members. Any persons other than a member may and shall be entitled to

rely on certificates, instructions, agreements or assignments signed or purporting to

be signed by a Member for or on behalf of the Company, and on the statements and

agreements set forth therein, without inquiry as to the due authorization thereof or

the authority of the person signing or purporting to sign such certificates,

instructions, agreements or assignments.

(e) Delegation, Manager. The Members may appoint individuals

with such titles as they may elect, including the titles of President, Vice President,

Treasurer and Secretary, to act on behalf of the Company with such power and

authority as the Members may delegate in writing to any such person, and the

Members shall also appoint a manager or Managers to act on behalf of the Members

as aforesaid for the purpose of executing instruments which are to be filed with the

Massachusetts Secretary of State or a Registry of Deeds in a county in which the

Company shall own real estate. The initial Managers shall be Beth L. Kelley and

Frederick G. Lorraine.

(f) Books and Records. The Company's books and records shall be

maintained in accordance with good record keeping practices and federal and state

income tax laws and regulations. All books and records of the Company shall be

maintained at the principal office of the Company, and each of the Members shall

have access thereto to review the same at any time upon reasonable notice and

during normal business hours.

(g) Reimbursement of Members. The Members shall be

reimbursed by the Company for all reasonable costs and expenses (including

attorney and accountant fees) incurred or paid by them for or on behalf of the

Company.

ARTICLE VII - VOTING, MEMBER CONSENTS AND MEETINGS

7.1 Voting. Each Member shall be entitled to vote in proportion to his or

her Percentage Interest in the Company from time to time. Such vote may be

exercised by written or oral notification, including telephonic, by a Member to the

other Members.

7.2 Member Consents. The amendment of this Agreement, admission of

a new Member, and transfer of Company interest, shall require the vote and

unanimous approval of all the Members. All other actions taken by the Company

shall require the vote and approval of Members owning fifty-one percent (51%) or

more of the Percentage Interests at the time of such vote.

7.3 Meetings of the Members. The Members may, but shall not be

required to, meet from time to time to consider the affairs of the Company and to

take any action permitted to be taken by the Members by law or under this

Agreement. Meetings of the Members may be called at any time by any Member.

Notice of any meeting shall be given to all Members not less than fourteen (14) days

nor more than thirty (30) days prior to the date of such meeting. Attendance at

meetings may be via telephone conference. Each Member may authorize any

person to act for it by proxy on all matters on which a Member is entitled to

participate, including waiving notice of any meeting, or voting or participating at

the meeting. Every proxy must be signed by the Member or his or her attorney-in-

fact. A quorum for each meeting shall be one more than one-half the number of all

Members.

ARTICLE VIII - ALLOCATIONS AND DISTRIBUTIONS

8.1 Allocation of Profits and Losses. The net profits, net losses, net cash

flow and net proceeds of any sale of any property of the Company or upon

liquidation of the Company shall be allocated among the Members according to the

Percentage Interests of each Member. Net profits and net losses shall, for both

accounting and tax purposes, be net profits and net losses as determined for

reporting on the Company's federal income tax return. For tax purposes, all items

of depreciation, gain, loss, deduction or credit shall be determined in accordance

with the Code and, except to the extent otherwise required by the Code, allocated to

and among the Members in the same percentages in which the Members share in

net profits and net losses.

8.2 Distribution to Members. The Members shall receive, in proportion

to their respective Percentage Interests in the Company, as much of the Company's

Net Cash From Operations as the Members may from time to time determine. For

the purposes hereof, the term "Net Cash From Operations" shall mean the gross

cash proceeds from Company operations less the portion thereof used to pay or

establish reserves for Company expenses, debt payments, capital improvements,

replacements, guaranteed payments and contingencies, all as determined by the

Members. "Net Cash From Operations" shall not be reduced by depreciation,

amortization, cost recovery deductions, or similar non-cash allowances, but shall be

increased by any reductions of reserves previously established.

ARTICLE IX - DISSOLUTION AND TERMINATION OF COMPANY

9.1 Events of Dissolution. The Company shall be dissolved and its

affairs shall be wound up upon the occurrence of any of the following events:

(a) the conclusion of the term of the Company set forth in Section

2.3 hereof;

(b) the sale or disposition of all or substantially all of the assets of

the Company;

or more of the Percentage Interests in the Company; or

(d) the entry of a decree of judicial dissolution in accordance with

the provisions of the Act.

9.2 Winding Up. Upon the dissolution of the Company, a Member

selected by the remaining Members (in either case, the "Liquidating Members"),

shall proceed with the winding up of the Company and apply and distribute the

Company's assets as provided in this Section 9.2. The assets shall first be applied

to the payment of the liabilities of the Company (other than any loans that may

have been made by the Members to the Company) and to the expenses of

liquidation. A reasonable time shall be allowed for the orderly liquidation of the

Company and for the discharge of liabilities to creditors, so as to enable the

Liquidating Member to minimize the normal losses attendant to a liquidation. The

remaining assets shall next be applied to the repayment of any loans made by the

Members to the Company. All assets then remaining shall be distributed to the

Members in accordance with their respective Capital Accounts after giving effect to

all contributions, distributions and allocations for all periods. Notwithstanding any

of the foregoing, the Liquidating Member may retain a sum deemed necessary by

him or her as a reserve for any contingent liabilities, expenses and obligations of the

Company. Upon the final distribution of assets to the Members, each of the

Members shall be furnished with a statement which sets forth the assets and

liabilities of the Company as of the date of the complete liquidation.

ARTICLE X - LIABILITY AND INDEMNIFICATION

10.1 Liability. Except as otherwise provided in the Act, the debts,

obligations and liabilities of the Company, whether arising in contract, tort, or

otherwise, shall be solely the debts, obligations and liabilities of the Company, and

no Member shall be obligated personally for any such debt, obligation or liability of

the Company solely by reason of being a Member.

10.2 Indemnification. The Company shall indemnify and hold harmless

the Members and their respective employees and authorized agents from and

against any loss, damage or claim incurred by reason of any act or omission

performed or omitted by such Member, employee or authorized agent in good faith

on behalf of the Company and reasonably believed to be within the scope of

authority conferred by this Agreement, except that no Member, employee or

authorized agent shall be entitled to be indemnified or held harmless from or

against any loss, damage or claim incurred by reason of such member's, employee's

or authorized agent's gross negligence or willful misconduct; provided, however,

that any indemnity under this Section 10.2 shall be provided out of and to the

extent of Company assets only, and no Member shall have any personal liability on

account there.

ARTICLE XI - MISCELLANEOUS

11.1 Governing Law. The Company and this Agreement shall be

governed by, and construed in accordance with, the laws of the Commonwealth of

Massachusetts.

11.2 Agreement Binding. This Agreement shall inure to the benefit of,

and be binding upon, the parties hereto and their respective next-of-kin, legatees,

administrators, executors, legal representatives, successors, and assigns.

11.3 Notices. Notices to the Members or to the Company to be furnished

hereunder shall be deemed to have been given when mailed, by prepaid registered

or certified mail, or when deposited with an express courier service, addressed to

the address set forth on Schedule A or as set forth in any notice of changes of

address previously given in writing by the addressee to the addressor.

IN WITNESS whereof, the Members acknowledge that they have executed

this Operating Agreement on the date written above.

Beth L. Kelley

Frederick G. Lorraine

Heidi L. Burgiel

Stanley W. Burgiel

Julianne Lorraine Milburn

Jonathan Lorraine

Dorothy L. Gregory

Jack F. Yonally, Trustee of the

Lillian Y. Yonally Irrevocable Trust