HomeMy WebLinkAboutMINUTES - 04032007 - C.5 C.
Contra
TO: BOARD OF SUPERVISORS
FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR c, aom Costa
DATE: April 3, 2007 —SpA-COUN� County
SUBJECT: Accept Offer of Dedication for Roadway Purposes, for Land Use Permit 05-02051,for project
being developed by Eagle Pacific Investors,Inc.,Bay Point area. (District V)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S):
ADOPT Resolution No. 2007/ for Land Use Permit 05-02051,accepting Offer of Dedication for Roadway
Purposes, for project being developed by Eagle Pacific Investors, Inc., Bay Point area. (District V)
FISCAL IMPACT:
None.
BACKGROUND/REASON(S) FOR RECOMMENDATION(S):
This Offer of Dedication is required by condition of approval number 22 of Land Use Permit 05-02051,
CONSEQUENCES OF NEGATIVE ACTION:
This Offer of Dedication will not be recorded.
Continued on Attachment: ✓ SIGNATURE: K�-E-"'�
✓i ECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
_,.-APPROVE OTHER
SIGNATURES : '
ACTIONOFBOA60ON 7 03 APPROVED AS RECOMMENDED OTHER
I hereby certify that this is a true and correct
copy of an action taken and entered on the
minutes of the Board of Supervisors on the
VO OF SUPERVISORS --� date shown.
7(0
UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN: o
ATTESTED: /�
KD:vz JOHN CULLE , Clerk of the Board of
Q\EngSv6BO\2007\04-03\130-30 LP 05-205Ldoc Supervisors and County Administrator
Originator: Public Works(ES)
Contact: S.Gospodchikov(313-2316)
Recording to be completed by Clerk of the Board
cc: Current Planning,Community Development Department
Eagle Pacific Investors,Inc. By ,Deputy
1666 Willow Pass Road
Bay Point,CA 94565
Recorded at the request of:
Contra Costa County
Board of Supervisors
Return to:
Public Works Department
Engineering Services Division
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Resolution on April 3, 2007 by the following vote:
AYES: SUPERVISORS GIOIA,
BONILLA, GLOVER, PIEPIIO
NO: NONE
ABSENT: SUPERVISOR UILKEMA
ABSTAIN:NONE
— RESOLUTION NO. 2007/
SUBJECT: Accepting Offer of Dedication for Roadway Purposes, for Land Use Permit 05-02051,
for project being developed by Eagle Pacific Investors,Inc.,Bay Point area.(District V)
IT IS BY THE BOARD RESOLVED that the following instrument is hereby ACCEPTED FOR
RECORDING ONLY:
INSTRUMENT REFERENCE GRANTOR AREA DISTRICT
Offer of Dedication for LP 05-02051 Eagle Pacific Bay Point V
Roadway Purposes APN: 096-092-013 Investors, Inc.
KD:vz I hereby certify that this is a true and correct copy of an
G:\EngSvc\BO\2007\04-03\130-30 LP 05-2051.doc action taken and entered on the minutes of the Board of
Originator: Public Works(ES) Supervisors on the date shown.
Contact: _ S.Gospodchikov(313-2316)
Recording to be completed by Clerk of the Board- .
cc: Current Planning,Community Development Department
Eagle Pacific Investors,Inc.
1666 Willow Pass Road ATTESTED:
Bay Point,CA 94565 JOHN CULLEN, Clerk of the Board of Supervisors and
County Administrator
By , Deputy
RESOLUTION NO.2007/.
Recorded at the request of:
Contra Costa County
Board of Supervisors
Return to:
Co Recorder office
Public Works Deparimt:nt — CONTRA COSTA
Engineering Services Division STEPHEN L, WEIR Clerk-
Records Section I)Ov. 200` -0@98451-00
Area: Bay Point Wednesday, APR 04, 2007 13:04:31
Road: Willow Pass Road FRE $0.00 Nbr-000366@310
Co.Road No.: 5181
Development No.: LP 052051 Ttl Pd �� 1 r c/R9/1-37
APN: 096-092-013
OFFER OF DEDICATION ROAD PURPOSES
Eagle Pacific Investors, LLC, the undersigned,being the present title owner of record of the herein
described p arcel o f.1 and, d o hereby make an irrevocable offer of dedication to Contra. Costa
County, a political subdivision of the State of California and its successors or assigns, for street,
highway landscaping and other public purposes,including maintenance thereof, the fee title to real
property situated in the County of Contra Costa, State of California, as described in Exhibit "A"
(written description) and shown on Exhibit "B" (plat map) attached hereto.
It is understood and agreed that Contra Costa County and its successors or assigns shall incur,no
liability with respect to such offer of dedication, and shall not assume any responsibility for the
offered parcel of land or any improvements thereon or therein,until such offer has been accepted by
appropriate action of.the Board of Supervisors,or of the local governing bodies of its successors or
assigns.
The provisions hereof shall inure to the benefit of Contra Costa County and it successors or assigns
and will be binding upon the title owner of record and that owner's heirs, successors or assigns.
The undersigned executed this instrument on s 20 0
(Signature)
David P.Nicoli-Manager,Ea)e Pacific Investors,LLC
(See attached notary)
kd
G:\Grp Data\EngSvcUCen\Projects\LP05205]\OF-6 Form.doc
Fomi Rev.May 1,2003
Approved by County Counsel—4/29/03
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
fO /` r
State of ',Q' OPTIONAL SECTION
/�I
County of � ` � CAPACITY CLAIMED BY SIGNER
On a-d-1-0 be me, 7 hough statute does not require the Notary to rill in
DATE N MlcfR ^JANE D ,fit "_6e to below,doing so may prove invaluable to
/ p sons relying on the document.
personally appeared ebr��
� tE( i F SIGNER(s) ❑ INDIVIDUAL
11 personally known to me-OR-proved to me on thebasisof satisfactory evidence to ❑ CORPORATE OFFICER(S)
be the person(s)whose name(s)is/are TITLE(S)
subscribed to the within instrument and
Notary Public State ofArizona knowledged to me that he/she/they executedW ❑ PARTNER(S) ❑ LIMITED
Mdncopa County t e same in his/her/their authorized ❑ GENERAL
ty c pacity(ies),and that byhis/her/their ❑ ATTORNEY-IN-FACT
PauNne L Schoeneman s gnature(s)on the instrument the person(s)or ❑ TRUSTEE(S)
My Commission Expires t e entity upon behalf of which the person(s) ❑ GUARDIAN/CONSERVATOR
03111/2010 ted,executed the instrument. ❑ OTHER:
I CIES my hand aAkffic seal, SIGNER IS REPRESENTING:
N ME OF PERSON(S)OR ENTITY(IES))
jWZZSIG NXTU O N D TA
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED Title or Type of Document
TO THE DOCUMENT AT RIGHT. Number of Pages
Though the data below is not required by law,it may prove valuable Date of Document
to persons relying on the document and could prevent fraudulent Signer(s)Other Than Named Above
re-attachment of this form
INSTRUCTIONS TO NOTARY
The following information is provided in an effort to expedite processing of the documents.
Signatures required on documents must comply with the following to be acceptable to Contra Costa County.
I. FOR ALL SIGNATURES - The name and interest of the signer should be typed or printed BENEATH the signature. The
name must be signed exactly as it is typed or printed.
II. SIGNATURES FOR INDIVIDUALS-The name must be signed exactly as it is printed or typed. The signer's interest in the
property must be stated.'
III. SIGNATURES FOR PARTNERSHIPS - Signing party must be either a general partner or be authorized in writing to have
the authority to sign for and bind the partnership.
IV. SIGNATURES FOR CORPORATIONS
Documents should be signed by two officers,one from each of the following two groups:
GROUP I. �a)The Chair of the Board
b)The President
c)Any Vice-President
GROUP 2. a)The Secretary
b An Assistant Secretary
c The Chief Financial Officer
d)The Assistant Treasurer
If signatures of officers from each of the above two groups do not appear on the instrument, a certified copy of a resolution of the
Board of Directors authorizing the person signing the instrument to execute instruments of the type in question is required.A currently
valid power of attorney,notarized,will suffice.
Notarization of only one corporate signature or signatures from only one group,must contain the following phrase:
..and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of
Directors."
1C MW
G:\GrpDa!a\EngSyc\Forms\WORD FORMS\ALL PURPOSE NOTARY.doc
Itev Augus%;y 2oa
EXHIBIT A
LEGAL DESCRIPTION
A portion of the Rancho Los Medanos, Contra Costa, State, of California, more particularly
described as follows:
Beginning at a point on the north line of the County Road known as Willow Pass Road at the west
line of the parcel of land described in the deed to Salvatore Bruno to, et al, record October 19,
1954, in Book 2402, Official Records, Page 346; thence, along said north line North 890 06' 35"
West, 470.00 feet to the east line of the parcel.of land described in the deed from Kaiser Industries
Corporation to Triangle Conduit and Cable Company, recorded June 10, 1966, in Volume 5138 of
Official Records, at page 381; thence, North 000 53' 25" East, 12.00 feet to a point on a line
parallel to and 42.00 feet, measured at right angles, from the centerline of said Willow Pass Road;
thence, leaving said easterly line and along said parallel line, South 89' 06' 35" East, 470.00 feet
to a point on the west line of said Bruno Parcel (2402 O.R. 381); thence, along said west line,
South 00' 53' 25"West, 12.00 feet to the POINT OF BEGINNING.
Containing 5,639.99 square feet more or less.
A plat (EXHIBIT "B") showing the above described property is attached hereto and made a part
hereof.
END OF DESCRIPTION
4V PV LAJVO
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Page 1 of 1
.EXHl.B!T "B"
ROKOWA Y®FA01CA r10)V
COA/TRA COSTA CO[IArlY !
E STATE OF CALIFORNIA
t APN: 096-092-013
LEGEND:
P.O.B. POINT OF BEGINNING
i 1
S,-77.1 ��QQ M—M MONUMENT TO MONUMENT
EAST LINE OF F �lpYy PARCEL BOUNDARY LINE
-�— PARCEL BEING DESCRIBED
8 .5138 O.R. 381 — CENTER LINE
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LINE TABLE
NO. DIRECTION DISTANCE PREPARED UNDSUPE oF•
L1 N 00953'25" E 42.00'
L2 N 00°53'25" E 12.00' NN M. RlNEHART
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EXP ES 12-31-07
�t�G u'SEC: 09-05-06 IAND SURVEYING - TOPOGRAPHIC SURVEYS - SUBIIIV1810NS _.
� _r PLAT T 0 A C C O MPA N�' MAPPING. - CONSTRUCTION LAl'DCJT - CPS SURVEYS
08-12-06 R RINEHAR T &
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DRAWN B:Y: JMR LEGAL DESCRIPTION 1A ASSOCIATES
11CHE"KED B-'K JMR CITY OF PITTSBfTRG CALIFORrTIA 2465 : A COURT, FAY : sz5-753-!531
2465 ELENA CC7URC, AN7'IOCH, CA. 9-1531
FIRST AMENDED AND RESTATED
OPERATING AGREEMENT
OF
EAGLE PACIFIC INVESTORS, LLC
This Agreement is entered into on this<50 ' day of 1999 by and between DAVID
P. NICOLI, REBECCA NICOLI,and JACK HOGAN.
RECITAL
The Initial Members organized the Company in 1997. lack Hogan, as of the date hereof, became
a Member of the Company. The Members desire to amend and restate the Agreement as provided
herein.
AGREEMENT
THE PARTIES AGREE:
Part 1--ORGANIZATION OF COMPANY
1.1 Organization. By executing and filing the Articles of Organization, the organizer
("Organizer")has created Eagle Pacific'Investors, LLC, an Oregon limited liability company("Company").
Consistent with the Act and the Articles,the Organizer and the Initial Members organized the company.
1.2 Definitions. Unless defined when first used herein, the definitions of all capitalized terms in
this Agreement are contained in Part 15 below.
1.3 Nature of Business. The primary purpose and business of the Company is to develop and
operate real property in Oregon, California and other states("the Project"). The Company may also
engage in any lawful business permitted by the Act or the laws of any jurisdiction in which the Company
may do business.
1.4 Defects as to Formalities. A failure to observe any formalities or requirements of this
Agreement,the Articles, or the Act shall not be grounds for imposing personal liability on Members or
Managers for liabilities of the Company.
1.5 No Partnership for Non-tax Purposes. The Initial Members have formed the Company
under the Act so that it will be considered as a partnership for tax purposes only and a limited liability
company for all other purposes.The Initial Members did not form a partnership under either the Oregon
Uniform Partnership Act or the Oregon Uniform Limited Partnership Act, or a corporation under the
Oregon Business Corporation Act.
1.6 Rights of Creditors and Third Parties. This Agreement is entered into between the
Members for the exclusive benefit of the Members,and their successors and assigns.
1.7 Title to Property, All Company Property shall be owned in the name of the Company.
Each Members interest in the Company shall be personal property.
PAGE 1 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
`
1.8 Payments of Individual Obligations. The Company's assets shall beused sole�fo�the
bene�tofthe '
Company. No
of any individual obligation of any Member unless otherwise provided for in this Agreement.
Part 2~~MEMBERS
' 2.1Authority bmAct. NoMember shall have any power orauthority tobind the Company
unless the Member is a Manager or the Member has been authorized by the Managers to act as an agent
ofthe Company inaccordance with this Agreement.
2.2 Limitation of Liability. Each Member's liability shall belimited asset forth inthis
Agreement, the Act, and other applicable law. A Member will not be personally liable, merely as a
�4embe� for any deb�or �ssesofthe Company beyond the Memba� respective Contributions' and m
obligation ofthe Mamnberunder paragraph 5.1or5.2tonnakeConbibubors, except asuthenw�epmov '
by law.
2.3 Indemnification. The Company shall indemnify the Members for all costs, losses,
liabilities, and damages paid or accrued by the Member, and advance expenses incurred by the Member,
in,connection with the business of the Company, to the fullest extent allowed by the laws of Oregon.
2.4 Management Rights. All Members shall beentitled tuvote onorconsent 10any matter
submitted toavote orconsent cfthe Members, which may basubject tmcertain minimum requirements
aafnUovvy-
( ) Majority the
Act, the Articles, or this Agreement, require a certain consent of the Members,the following
actions require the consent of a Majority(defined in paragraph 15.39)of the Members:
(1) Fixing the number ofManagers;
(2) Electing the Managers;
' (3) Setting-or adjusting the compensation orbenefits ofManagers;
(4) Removing any Manager,
(S) Filling any vacancy created by the resignation, removal, or death of o
Manager; '
(6) Filling any vacancy created by the increase In the number ofManagers;
(7) Approving any transaction involving an actual or potential conflict of interest
between a Member or a Manager and the Company;
(8) Admitting anAdditional Member;
(9) Amending o,restating this Agreement;
10) Changing the nature ofthe business ofthe Company;
(11) Incurring a Company debt other than inthe ordinary course ofbusiness;
(12) Dissolving the Company pursuant toparagraph 11.20b ;
PAGE2 - AMENDEDANOREBT7TEDOpERATING/VGREEMENTOFEAQLEPAClFIClNVE57TVRS LLC
(13) Extending the statute of limitations for the assessment of tax defidencies
against Members with respect to adjustments to the Company's federal, state, or local
tax returns;
(14) Taking or approving any action or transaction that is reserved to the
Members by the Act, the Articles,or this Agreement without any express statement of
the extent of Member action required; or
(15) Approving any action to sell, lease, exchange, mortgage, pledge, or other
transfer or disposition of all or substantially all Company Property, other than in the
ordinary course of business.
(b) Unanimous Consent Required. In addition to any other actions that, by virtue of
the Act, the Articles,or this Agreement, require unanimous consent of the Members, the following
actions require the unanimous consent of the Members.
(1) Compromising any Contribution obligation;
(2) Amending or restating the Articles; or
(3) Merging the Company with another Entity.
2.5 Actions of Members. Members' actions shall be taken in accordance with the Act and with
the following procedures:
(a) Annual Meeting. The annual meetings of the Members shall be held within 120
days after the end of the Company's fiscal year at a time determined by the Managers, for the
purpose of the transaction of any business that may come before the meeting.
(b) Special Meetings. Special meetings of the Members, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by any Manager or by any Member or
Members holding at least 10% of the Capital Interests.
(c) Place of Meetings. The Managers may designate any place, either within or
outside of Oregon, as the location for any meeting of the Members. If no designation is made,or
if a special meeting is otherwise called,the place of meeting shall be the principal office of David
P. Nicoli in Tualatin, Oregon.
(d) Notice of Meetings. Except as provided in paragraph 2.5(e),written notice stating
the place, day, and hour of the meeting and the purpose or purposes for which the meeting is
called shall be delivered not less than 10 nor more than 50 days before the date of the meeting,
either personally or by mail, by or at the direction of the person calling the meeting, to each
Member. If mailed,the notice shall be deemed to be delivered two calendar days after being
deposited in the United States mail, addressed to the member at the Member's address as it
appears on the books of the Company,with postage prepaid.
(e) Meeting of all Members. If all Members meet at any time and place, either within
or outside of Oregon, and consent to holding a meeting at that time and place,the meeting shall
be valid without call or notice, and at that any lawful action may be taken.
(f) Record Date. For the purpose of determining the Members for any reason, the
date on which any required notice is mailed or the date on which a resolution declaring a
distribution is adopted, as the case may be,shall be the record date for the determination of the
Members.
PAGE 3 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
(g) Quorum. Members, present in person or represented bvproxy, with mnaggregate
Sharing Ratio over 50%shall constitute a quorum at any meeting of the Members.In the
absence of a quorum at any such meeting,the Members so present or represented may adjourn
the meeting from time totime for aperiod not toexceed 6Odays without further notice.
However, ifthe adjournment isfor more than 68days, orifafter the adjournment anew record
date is fixed for the adjourned meeting,a notice of the adjourned meeting shall be given to each
Member of record.At the adjourned meeting at which a quorum is presento' r represented, any
business may be transacted that might have been transacted at the meeting as originally noticed.
The Members present at a duly-organized meeting may continue to transact business until
`
adjournment, notwithstanding the departure during the meeting cfMembers whose absence
would cause less than aquorum to remain.
(h) Manner of Acting. If there isaquorum, aMajority of the Members shall act for
the Members, unless the vote of a greater or lesser proportion or number is otherwise required
by the Act, the Articles, or this Agreement. Unless otherwise expressly provided in this Agreement
or required under applicable law, Members who have an interest in the result of any particular
matter upon which the Members vote or consent may vote orconsent upon any such matter, and
their Capital Interest, Sharing Ratios,vote,or.cmnsent as the case may be, shall be counted in
determining whether or not the requisite matter was approved by the Members.
({) Proxies. At all meetings ofthe Members a Member may vote in person or by m
proxy executed in writing by the Member o,the duly-authorized attorney-in-fact,The proxy shall
be filed with the Managers before or at the time of the meeting and may be of any duration
except that a Member who shall appear in person at a meeting shall void any outstanding proxy
for so long as the Member is in attendance.
� (j) Action by Members Without a MeetingAction required or permittedtobe
taken at a meeting of Members may be taken without a meeting if the action is evidenced by one
or more written consents describing the action taken, signed by Members sufficient to have
approved the actions or resolutions at issue had a duly-called meeting
been held at which all
Members were inattendance and delivered bothe Ma' gecsfor inclusion inthmminutesorfor
filing with the Company records. Action taken under this paragraph is effective when the
necessary Members 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 awritten consent.
(k) Waiver of Notice. When any notice is required to be given to any Member, a
waiver ofnotice inwriting signed bythe person entitled tothe notice, whether before, at, orafter
the time stated in the notice, is equivalent to the giving of the notice.
(U) Telephonic Meetings. With respect Loaparticular meeting orgenerally with
respect to future meetings, the Managers may permit any or all Members to participate in the
meeting by, or may permit the conduct of the meeting through, use of any means of
communication by which all Members participating may simultaneously hear each other, provided
the notice ofsuch ameeting shall state that the Members may participate insuch afashion and
describe how any Member may notify the Company of the Member's wish to be included in the
meeting.A Member participating in such a meeting is deemed to present in person at the
meeting,
2~6 Books, Records, Reports,and Information, Each Member has the right toreceive the
reports and information required to be provided by this Agreement. Upon reasonable request, each
Member,and the Member's agent and attorney,shall have the right, during ordinary business hours, to
inspect and copy,at the requesting Member's expense, the books and records that the Managers are
required, by the Act and this Agreement, to keep.
PAGE 4 -AMENDED AND RESTATED OPER/77NGA0REEME0TOFEyV]LEPAlIRCINVESTDRS, LLC
Part 3-- MANAGERS
3.1 General. The Company shall be managed in accordance with the Act and with the following
provisions and procedures:
(a) Managers. The Company initially had one Manager, namely David P. Nicoli. The
Company, as of the date hereof,shall have two Managers, namely David P. Nicoli and Jack
Hogan.
(b) Number. The number of Managers shall be fixed from time to time by the
Members, but in no instance shall there be less than one Manager.
(c) Qualifications. Managers need not be residents of Oregon or Members.
(d) Term. Each Manager shall hold office until the Manager's successor has been
elected and qualified.
(e) Election. Managers shall be elected by the Members.
(f) Resignation. Any Manager may resign at any time by giving written notice to the
Members.The resignation of any Manager shall take effect upon receipt of notice of resignation
or at any later time specified in the notice; and, unless otherwise specified in the notice,the
acceptance of the resignation shall not be necessary to make it effective. The resignation of a
Manager who is also a Member shall not affect the Manager's rights as a Member and shall not
constitute a withdrawal as a Member.
(g) Removal. All or any lesser number of the Managers may be removed at any time
at a meeting called expressly for that purpose, with or without cause, by the Members. The
removal of a Manager who is also a Member shall not affect the Manager's rights as a Member
and shall not constitute a withdrawal of a Member.
(h) Vacancies. Any vacancy occurring for any reason in the number of Managers may
be filled by a Majority of the remaining Managers then in office; provided, however, if there are
no remaining Managers, the.vacancy(ies) shall be filled by the Members. Any Manager's position
to be filled by reason of an increase in the number of Managers shall be filled by the Manager
then in office, or by an election at an annual meeting or at a special meeting of the Members
called for that purpose or by the Members. A Manager elected to fill a vacancy shall be elected
for the unexpired term of the Manager's predecessor in office and shall hold office until the
expiration of that term and until the Manager's successor shall be elected and shall qualify, or
until the Manager's earlier death, resignation, or removal. A Manager chosen to fill a position,
resulting from an increase in the number of Managers shall hold office until the next annual
meeting of the Members and until the Manager's successor shall be elected and shall qualify, or
until the Manager's earlier death, resignation, or removal.
3.2 Action by Managers. The rights and powers of the Managers under this Agreement shall
be exercised by them in any manner as they may agree. In the absence of an agreement between the
Managers, the following shall apply:
(a) Meetings. Meetings of Managers, unless otherwise prescribed by statute, may be
called by any Manager for any purpose or purposes.
(b) Place of Meetings. The Managers may designate any place, either within or
outside of Oregon, as the location for any meeting of the Managers. If no designation is made,
PAGE 5 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
or if a special meeting is otherwise called, the place of meeting shall be the principal office of
David P. Nicoll in Tualatin, Oregon.
(c) Notice of Meetings. Except as provided in paragraph 3.4(d), written notice stating
the place, day, and hour of the meeting and the purpose or purposes for which the meeting is
called shall be delivered not less than 10 nor more than 50 days before the date of the meeting,
either personally or by mail, by or at the direction of the Managers or person calling the meeting,
to each Manager. If mailed, the notice shall be deemed to be delivered 2 calendar days after
being deposited in the United States mail, addressed to the Manager at the Manager's address as
it appears on the books of the Company,with postage prepaid.
(d) Meeting of all Managers. If all Managers meet at any time and place,either
within or outside of Oregon, and consent to holding a meeting at that time and place,the
meeting shall be valid without call or notice,and at that meeting any lawful action may be taken.
(e) Quorum. More than half of the Managers, present in person or represented by
proxy, shall constitute a quorum at any meeting of Managers. In the absence of a quorum at any
such meeting,the Managers present or so represented may adjourn the meeting from time to
time for a period not to exceed,60 days without further notice. However, if the adjournment is
for more than 60 days, a notice of the adjourned meeting shall be given to each Manager. At the
adjourned meeting at which a quorum is present or represented, any business may be transacted
that might have been transacted at the meeting as originally noticed.The Managers present at a
duly-organized meeting may continue to transact business until adjournment, notwithstanding the
withdrawal during the meeting of that number of Managers whose absence would cause less than
a quorum.
(f) Manner of Acting. If a quorum is present, the act of a Majority of the Managers
who are present or represented by proxy shall be the act of the Managers, unless the vote of a
greater or lesser proportion or number is otherwise required by the Act, the Articles, or this
Agreement. Unless otherwise expressly provided in this Agreement or required under applicable
law, Managers who have an interest in the result of any particular matter upon which the
Managers vote or consent may vote or consent upon any such matter and their vote or consent, .
as the case may be, shall be counted in the determination of whether the requisite matter was
approved by the Managers. Provided, however, nothing herein shall eliminate or reduce a
Manager's duty of loyalty and fiduciary duties to the Company and the Members.
(g) Proxies. At all meetings of the Manager a Manager may vote in person or by a
proxy executed in writing by the Manager or by a duly-authorized attorney-in-fact. The proxy
shall be filed with the Managers before or at the time of the meeting and may be of any duration,
except that a Manager who appears in person at a meeting shall void any outstanding proxy for
so long as the Manager is in attendance.
(h) Action by Managers Without a Meeting. Action required or permitted to be
taken at a meeting of the Managers may be taken without a meeting if the action is evidenced by
one or more written consents describing the action taken,signed by Managers sufficient to have
approved the actions or resolutions at issue had a duly-called meeting been held at which all
Managers were in attendance and delivered to the Company for inclusion in the minutes or for
filing with the Company records. Action taken under this paragraph is effective when the
necessary Managers have signed the consent, unless the consent species a different effect date.
(i) Waiver of Notice. When any notice is required to be given to any Manager, a
waiver of notice in writing signed by the person entitled to the notice, whether before,at, or after
the time stated in the notice, is equivalent to the giving of the notice.
PAGE 6 - AMENDED AND RESTATED.OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Telephonic Meetings. With respect to a particular meeting or generally withparticipaterespect to future meetings, the Managers may permit any or all Managers to
meeting �� cvmay permit the conduct ofthe meeting through, use nfany means of
communication bywhich all Managers participating may hear each other. A
Manager participating in such a meeting is deemed to be present in person at the meeting.
3.3 Authority of the Managers. Subject tothe limitations and restrictions set forth |nthe Act,
the Articles, and this Agreement, the Managers have the sole and exclusive right bumanage the business
of the Company and have all rights and.powers that may bepossessed bvmanagers under the Act and
the Articles, including but not limited hothe right and powe�onbehalf .and inthe name ofthe
Company, bo- ^ '
(a) Institute, prosecute, and complain and defend in all courts in the Company's name;
(b) Buy,take, receive, lease, orotherwise acquire, own, hold, improve, use, and
otherwise deal in or with real or personal property or,any interest in real or personal property,
wherever situated;
(c) Sell,convey, mortgage pledge, create asecurity interest in, lease exchange,
transfer,and otherwise dispose ofall orany part ofthe Company Property;
/d\ Buy, take, receive, subscribefor or otherwise acquire, own, hold, vote, use, employ,
sell, mortgage, lend, pledge, otherwise dispose of and otherwise use or deal in or with other
interests inorobligations ofany other Entity;
(e) Make contracts orguaranties, incur liabilities, borrow money, issue Company notes
or other obligations that may be convertible into other securities of the Company, or include the
option to buy other securities of the Company,for secure any of the Company's obligations by
mortgage nrpledge cdany ofthe Company Property, franchises, orincome;
(f) Lend money, invent or reinvest Company funds or receive and hold real orpersonal
property as security for repayment of funds so loaned, invested or reinvested, including but not
limited toloans toManagers, Members, employees, and agents;
/
(g) Beopromoter, incorporator,general partner, limited partner, member, associate, or
Manager ofany partnership,joint venture, trust,cvother Entity;
(h) Conduct the Conipany's business, locate its offices and exercise the powers granted
bvthe Act and the Articles within oroutside Oregon;
(i) Elect orappoint Managers, employees, oragents ofthe Company, define their duties,
Mx their compensation, and lend them money and credit;
(j) Make and alter this Agreement not inconsistent with the Articles orthe laws of
Oregon for managing the Company's business and regulating its affairs;
(k) Pay pensions and establish pension plans, profit-sharing plans,and other benefit or
incentive plans for any and all of fts current or former Managers, Members,employees, and
agents;
(|) Make donations for the public welfare mfor charitable, scientific,oreducational
purposes;
(m) Transact any lawful business that will aid governmental policy;
PAGE 7 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
hA Indemnify Member or Manager or any otherperson aaand to the extent not
inconsistent with the provisions ofthe Act nrthe Articles; and
(o) Cease the activities and dissolve.
3.4 Restrictions on Authority of Managers. lotheir management of the Company, no
Manager shall have any authority to, or shall,do any of the following acts without the consent of
Majority ofthe Members:
(a) Knowinglydoany act in contravention of this Agreement or without the consent of
the Members as required by this Agreement;
(b) Confess a judgment against the Company in an onuauni over$5,000;
(c) Posses Company Property, orassign rights in specified Company Property, for other
than a Company purpose;
(d) Knowingly perform any act that would subject any Member to personal liability in any
jurisdiction;
(e) Cause the Company to incur any Debt in any single transaction over$200,000,
except torefinance any Property; mv
(f) Cause the Company tomake any capital expenditure inany single transaction over
$100,000.
3.5 Duties and Obligations of Managers. In addition to any other duties and obligations
Managers may have, Managers shall be responsible for the following:
(a) The Managers shall cause the Company hmconduct its business and operations
separate and apart from that of any Manager or any Affiliate of Manager, including but not
limited to:
(1) Segregating Company Property and not allowing Company Property hobe
commingled with the funds or other assets of, held by, or registered in the name of, any
Manager or any Affiliate of Manager,
(2) Maintaining books and financial records of the Company separate from the
books and financial records of any Manager and any Affiliate of Manager, and observing
all company procedures and formalities, including but not limited to maintaining minutes
of Company meetings and acting on behalf ofthe Company only pursuant to due
authorization of the Members;
(3) Causing the Company to pay its liabilities from Company Property; and
(4) Causing
'the Con�parytoconduct its deaUngsw�hthird pn�k�/inhsoxvn
nem�aand asm����nateand independent entity.
(b) The Managers shall take all actions that may benecessary orappropriate for:
(1) The continuation ofthe Company's valid existence nsmlimited liability
company under the laws of Oregon and of each other jurisdiction in which the existence
is necessary to protect the limited liability cfthe Members ortoenable the Company to
conduct the business in which it is engaged; and
PAGE 8 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
(2) The accomplishment of the purposes, including the acquisition
development,maintenance, preservation,and operation of Company Property in
accordance with the provisions ofthis Agreement and applicable laws and regulations.
(c) The Managers shall beunder a fiduciary duty to perform the duties of Managers in
good faith, inamanner they reasonably believe to beinthe best interests of the Company and
its Members, and with the care an ordinarily prudent person in a like position would use under
similar circumstances. In discharging these duties, a Manager shall be fully protected in relying in
good faith upon the records required tobemaintained under this Agreement and upon the
information, opinions, reports,or statements by any other Managers, Member, or agent, or by
any other person, as to matters,the Manager reasonably believes are within the other-person's
professional or expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports, or statements as to the value,
paid amount ofthe assets, liabilities, pnzfits, and losses ofthe Company orany other facts
pertinent to the existence and amount of assets from which distributions to the Members might
properly bepaid.
3.6 Right to Rely on Acts of Managers. In connection with their management of the
Company, acts of the Managers may be relied upon in accordance with the following provisions:
(a) Manager's Certificate. Any Person dealing with the Company may rely(without
duty of further inquiry) upon ocertificate signed byany Manager asto:
(1) The identity ofany Manager orany Member,
(3) The existence ornon-existence ofany fact orfacts that constitute a
condition precedent to'acts by a Manager or that are in any other manner germane to
'
the affairs ofthe Company;
(3) The Persons who are authorized toexecute and deliver any instrument or
document ofthe Company; and
(4)Any act orfailure toact bythe Company orany other matter whatsoever
involving theCompany orany Member.
(b) Manager's Signature. The signature uyaManager shall benecessary and
sufficient to convey title to any Company Property or to execute any promissory notes,trust
deeds, mortgages, orother instruments ofhypothecation. Acopy ofthis Agreement may be
shown to the appropriate parties in order to confirm this provision, and the signature of any
Manager shall be sufficient to execute any"statement of company"or other documents necessary
to effectuate this or any other provision of this Agreement.All Members hereby appoint the
Managers astheir atborneys-in'faxct for the execution ofany orall documents described inthis
paragraph 3.6(b).
3~7 Indemnity of the Managers. AManager is not personally liable for any debt, obligation,
or liability of the Company merely by reason of being a Manager and is not liable to the Company or its
Members for monetary damages for conduct as a Manager.A Manager who performs the duties as
Manager in accordance with this Agreement shall not have any liability by reason of being or having been
aManager.The Company shall indemnify the Managers and make advances for expenses tothe
maximum extent permitted under the Act. However, this provision shall not eliminate or limit Manager's
liability for:
(a) Any breach ofa Managers duty of loyalty orfiduciary duties hothe Company or its
Members;
PAGE 9 ' AMENDED AND RESTATED OPERATING AGREEMENT OFEAGLE PACIFIC INVESTORS,LLC
-
-
(b) Acts or omissions not in good faith that involve intentional misconduct or a knowing
violation of law;
(c) Any unlawful distribution under the Act; or
(d) Any transaction from which the Manager derives an improper personal benefit.
Part 4--CONFLICTS OF INTEREST
4.1 Duty of Loyalty. Each Member and Manager shall be entitled to enter into transactions
that may be considered to be competitive with, or a business opportunity that may be beneficial to, the
Company, it being expressly understood that some Members and Managers may enter into transactions
that are similar to the transactions into which the Company may enter, and the Company and each
Member waive the right or claim to participate in those transactions. Notwithstanding the foregoing,
Members and Managers shall account to the Company and hold, as trustees for it, any property, profit, or
benefit derived by the Member or Manager, without the consent of the Members, in the formation,
conduct, and winding up of the Company's business or from a use or appropriation by the Member or
Manager of Company Property, including information developed exclusively for the Company and
opportunities expressly offered to the Company.
4.2 Other Self-Interest. A Member or Manager does not violate a duty or obligation to the
Company merely because the conduct furthers the interest of the Member or Manager. A Member or
Manager may lend money to and transact other business with the Company.The rights and obligations of
a Member or Manager who lends money to or transacts business with the Company are the same as
those of a person who is not a Member or Manager, subject to other applicable law. No transaction with
the Company shall be voidable solely because a Member or Manager has a direct or indirect interest in
the transaction if the transaction is approved or ratified as provided for in this Agreement.
Part 5 -- CAPITAL CONTRIBUTIONS
5.1 Contributions. The Initial Members contributed the following consideration as their
Contributions to the Company:
(a) David P. Nicoll. David P. Nicoli contributed $85,000 to the Company.
(b) Rebecca Nicoll;. Rebecca Nicoli contributed $15,000 to the Company.
(c) lack Hogan. Jack Hogan, upon signing this Agreement, shall contribute$100,000
to the Company.
No interest shall accrue on any Contribution, and no Member shall have the right to withdraw or be repaid
any Contribution except as provided in this Agreement. Each. Additional Member shall make the
Contribution described in the Member's Admission Agreement.The value of the Additional Member's
Contribution and the time for making the contribution shall be set forth in the Admission Agreement.
5.2 Additional Contributions. In addition to the Initial Contributions, the Managers may
determine from time to time that Additional Contributions are needed to enable the Company to conduct
its business. Upon making such a determination, the Managers shall give written notice to all Members at
least 10 Business Days before the date on which the Contribution is due.The notice shall set forth the
amount of Additional Contribution needed, the purpose for which the Contribution is needed, and the
date by which the Members must contribute. Each Member shall be entitled to contribute a proportionate
share of the Additional Contribution, but no Member shall be obligated to make any Additional
Contributions. Within seven (7) Business Days after receipt of such notice, the Members shall notify the
PAGE 10 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Managers of the amount, if any, that the Member intends to contribute. Failure to give such notification
shall be deemed to express an intent to make no contribution. If any one or more Members do not make
their Additional Contribution, the other Members shall be given the opportunity to make the Additional
Contributions not otherwise made.
5.3 Failure to Contribute, If any Member fails to make an Additional Contribution pursuant to
Section 5.2, the other Members may do any one or more of the following:
(a) Loans. The other Members who elect to do so may loan funds to the Company, in
proportion to their respective Sharing Ratios, sufficient to provide the funds needed by the
Company. The outstanding balance of the loan shall bear interest at the Default Interest Rate
until paid. The loan shall be secured by the Delinquent Member's.Membership Interest.
(b) Conversion to Loans. If any loans are made pursuant to paragraph 5.3(a), any
Members who have made an Additional Contribution may elect to convert their Additional
Contributions to a loan on the same terms.
(c) Additional Capital Contributions. The other Members who elect to do so may
make an Additional Contribution, in proportion to their respective Sharing Ratios, sufficient to
provide the funds needed by the Company.
(d) Adjustment of Capital Accounts and Sharing Ratios. If any Additional
Contributions are made pursuant to paragraph 5.2 or paragraph 5.3(c) by less than all the
Members or otherwise than in accordance with their Sharing Ratios, the Capital Accounts and
Sharing Ratios of the Members shall be adjusted as follows:
(i) The Gross Asset Value shall be redetermined in accordance with paragraph
15.34.
(ii) Any increase or decrease in the Gross Asset Value shall be treated for book
purposes as gain or loss and allocated among the Members in accordance with their
existing sharing Ratios.
(iii) The Contributing Members Capital Accounts shall be adjusted as provided in
paragraph 5.4(a)and (b).
(iv) The Sharing Ratios of the Members shall be adjusted to reflect the ratio of
the Members Capital Account balances.
5.4 Maintenance of Capital Accounts. The Company shall establish and maintain Capital
Accounts with respect to each Member in accordance with the following:
(a) Increases. Each Member's Capital Account shall be increased by the Member's
Contributions,the Member's distributive share of Profits, any items in the nature of income or
gain that are specially allocated pursuant to paragraph 6.3 or 6,4, and the amount of any
Company liabilities assumed by the Member or that are secured by any Property distributed to
the Member,The principal amount of a promissory note that is not readily traded on an
established securities market and that is contributed to the Company by the maker of the note
{or a person related to the maker of the note within the meaning of§ 1.704-1(b)(2)(ii)(c)of the
Regulations) shall not be included in the Capital Account of any Member until the Company
makes a taxable disposition of the note or until {and to the extent) principal payments are made
on the note, all in accordance with§ 1.704-1 (b)(2)(iv)-(d)(2)of the Regulations.
(b) Decreases. Each Member's Capital Account shall be decreased by the amount of
cash and the Gross Asset Value of any Company Property(other than cash)distributed to the
PAGE 11 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Member pursuant to any provision of this Agreement,the Member's distributive share ofLosses,
and any items in the nature of expenses or losses that are specially allocated pursuant to
paragraph 6.3orG.4, and the amount of any liabilities of the Member assumed by the Company
or that are secured by any property contributed by the Member to the Company.
(o) Distribution of Assets. I ftbe Company at any time distributes any of its assets in-
kind toany Member,the Capital Accounts shall be adjusted to account for that Member's
allocable share(as determined under Part 6 of this Agreement)of the Profits or Losses that
would have been realized bvthe Company had|tsold the assets that were distributed attheir
respective fair market values immediately before their distribution.
(d) Sale orExchange mf Interest. lfthere isaTransfer ofall oraportion ofa
Member's Economic Rights in accordance with the terms of this Agreement, the Transferee shall
succeed to the Capital Account of the Member hmthe extent it relates to the Transfer oythe
Member's Economic Rights.
(a) Compliance with Section 704(b) wfthe Code. The foregoing provisions and the
other provisions of this Agreement relating to the maintenance of Capital Accounts are intended
tocomply with Regulations§ 1.7O4-1 (b), and shall beinterpreted and applied inamanner
consistent with the Regulations. Ifthe Managers determine that it isprudent tomodify the
manner inwhich the Capital Accounts, orany adjustments hothem (including but not limited to
adjustments relating to liabilities secured by Contributions or distributed property or assumed by
the Company orMembers), are computed)norder tocomply with the Regulations,the Managers
may make the modification, provided that it Is not likely to have a material effect on the amounts
distributed to any Person pursuant to Part 11 of this Agreement upon the dissolution of the
Company.The Managers shall also make any adjustments necessary or appropriate to maintain
equality between the Capital Accounts ofthe Members and the amount ofCompany capital
reflected on the Company's balance sheet, as computed for book purposes, inaccordance with &
1.704-1 (b)(2)(k/)(q) ofthe Regulations, and shall make any appropriate modifications ifthere
are unanticipated events(for example, the acquisition by the Company of oil or,gas properties)
that might otherwise cause this Agreement not tpcomply with 01'7041 (h)of the Regulations.
In determining the amount of any liability for purposes of this paragraph, there shall be taken
into account 0 752(c)of the[lxda and any other applicable provisions of the Code and the
Regulations. Notwithstanding anything in this Agreement to the contrary, this Agreement shall
not be construed as creating a deficit restoration obligation or otherwise personally obligate any
Member to make a contribution in excess of the contributions, referred to in paragraphs 5.1 and
5.2.
Part 6ALLOCATIONS
—
6.1 Profits. After giving effect bzthe special allocations set forth in paragraphs 63 and 6.4,
Profits for any Fiscal Year shall be allocated in accordance with the Member's Sharing Ratios which, as of
the date hereof, are nsfollows:
'
David P. Nicoll 42.596
Rebecca Nicoll 7.596
Jack Hogan 50.0Y6
6.2 Losses. After giving effect tothe special allocations set forth inparagraphs 6.3and 6.4,
Losses for any Fiscal year shall be allocated as set forth in paragraph 6.2(a), subject tothe limitation in
paragraph 2.2(b).
PAGE 12 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
(a) David P. NicoU 43.596
Rebecca Nicoli 7.5%
Jack Hogan 50.096
(b) The Losses allocated pursuant to paragraph 6.2(a)shall not exceed the maximum
amount ofLosses that can besoallocated without causing any Member tohave aoAdjusted
Deficit atthe end ofany Fiscal year.lfsome but not all Members would have adjusted Qefidtsos
a consequence of an allocation of Losses pursuant to paragraph 6.2(a), the limitation set forth in
this paragraph 6.2(b) shall be applied on a Member-by-Member basis so as to allocate the
maximum permissible Losses to each Member under§ 1.704-1 (b)(2)(ii)(d)of the Regulations.
6.3 Special Allocations. Special allocations, ifany, shall bamade inaccordance withthe Code
and Regulations.
6^4 Curative Allocations. The allocations set forth inparagraphs 6'3(b) and 6'3("tlm
Regulatory Allocations") are intended to comply with certain requirements of the Regulations.It is the
intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of Company income,gain, loss,or
deduction pursuant tothis paragraph 6^4.Therefore, notwithstanding any other provision ofthis Part 6
(other than the Regulatory Allocations), the Managers shall make the offsetting special allocations of
Company income, gain, loss, or deduction in whatever manner they determine appropriate so that, after
the offsetting special allocations are made, each Member's Capital Account is, tothe extent possible,
equal to the Capital Account the Member would have had if the Regulatory Allocations were not part of
the Agreement and all Company items were allocated pursuant to paragraphs 6.1,and 6.2.
6.5 Other Allocation Rules. All other allocations ofProfits, Losses, and other items shall be
made inaccordance with the Code and Regulations.
6.6 Tax Allocations: Code Section 704(c), Inaccordance with 07D4(c)ofthe Code and the
Regulations under that section, income,gain, loss,and deduction with respect to any Property
contributed to the capital of the Company shall, solely for tax purposes, be allocated between the
Members so as to take account of any variation between the adjusted basis of the Property to the
Company for federal income tax purposes and its initial Gross Asset Value(computed in accordance with
paragraph 15.34(a)).
lfthe Gross Asset Value nfany Company asset isadjusted pursuant toparagraph 15'34(b),
subsequent allocations ofincome,gain, loss, and deduction with respect tothe asset shall take account of
any variation between the adjusted basis o[the asset for federal income tax purposes and its Gross Asset
Value in the same manner as under 704(c) of the Code and the Regulations under it.
Any elections or other decisions relating to the allocations shall be made by the Managers in any
manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this
paragraph 6.6 are solely for purposesof federal, state, and local tomes and shall not affect, on in any way
bctaken into account incomputing, any Person's Capital Account orshare ofProfits, Losses, other items,
ordistributions pursuant toany provision ofthis Agreement,
Part 7_ DISTRIBUTIONS
'
7.1 General. Except asotherwise provided inthe Act, the Articles,and this Agreement, no
Member shall have the right or power to demand or receive a distribution in a form other than cash and
shall not be required or compelled to accept a distribution of any asset in kind,to the extent that the
interest distributed would exceed the Member's pro rata share of operating or liquidating distributions.
Notwithstanding anything contained in this Agreement mrthe Articles tuthe contrary, no distribution shall
bemade toeMember inviolation ofthe Act.
PAGE 13 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
'
7.2 Net Cash From Operations. Except as otherwise provided inPart 11ofthis Agreement,
Net Cash From Operations, if any,abashaldistributedbadistributed not later than 30 days after the end of each fiscal
quarter toall Members inaccordance with their Sharing Ratios.
7.3 Net Cash From Sales mr Refimamciwgs, Except asotherwise provided hnPart 11ofthis
Agreement, Net Cash From Sales or Refinancings shall be distributed,at such times as the.Managers may
determine, /n the fd)cnmkng order ofpriority:
(a) First,toall Members innnamount equal totheir Adjusted Contributions; and
(b) The balance, if any, boall Members, inaccordance with their Sharing Ratios,
7.4 Uquidating Distributions. If the Company isdissolved and the business and affairs are
wound up, distributions shall bemade pursuant boparagraph 11.4.
7.5 Amounts Withheld. All amounts withheld pursuant tothe Code urany provision of any
state orlocal tax law with respect to any payrTlent, distribution, orallocation tothe Company, the
Members shall betreated asamounts distributed to the Members pursuant tothis Part 7for all purposes
under this Agreement. The Managers are authorized to withhold from distributions,or with respect to
allocations, 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 Members with respect to which the amount was withheld,
Part 8-~ADDMONAL MEMBERS
8.1 Admission. Persons may beadded asAdditional Members upon the terms and conditions
approved bythe Members. Notwithstanding the foregoing, aPerson shall not become anAdditional
Member unless and until the Person:
(a) Becomes a party to this Agreement as a Member by signing an Admission Agreement
and executing the documents and instruments the Managers may reasonably request, and as
necessary orappropriate tncunfinnthe Person asaMember inthe Company and the Person's
agreement tobebound bvthe terms and conditions ofthis Agreement;
(b) Provides the Company with evidence satisfactory to counselfor the Company that
the Person has made each of the representations and undertaken each of the warranties
contained |nthe Additional Member's Admission Agreement, and
(c) If the Person is not an individual of legal n1ojohtK the Person provides the Company
with evidence satisfactory tocounsel for the Company mfthe authority ofthe Person tmbecome a
Member and tobebound bythe terms and conditions ofthis Agreement.
8.2 Accounting. NoAdditional Member shall beentitled to any retroactive allocation oflosses,
income, orexpense deductions incurred bvthe Company.The Managers may, adthe time anAdditional
Member isadmitted, close the Company books (as though the Company's tax year had ended) nrmake
pro rata allocations of loss, income, and expense deductions to an Additional Member for that portion of
the{lonpanv'staxyeorinwhichtheMexnhervoasadmh1edinaocondancewiththeprm/isionsof07OG(d)
ofthe Code and the Regulations promulgated under that section.
PAGE I4 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Part 9--TRANSFERS OF INTERESTS
9.1 Restriction omTransfers. Except asotherwise permitted bvth�Agoeen�en� no Member
o,Ass�neeshaUTranyh�aUorany oo��nofthe Perso�sinteuy�s |nthe
'Company. Ifany Member or
Assignee pledges or otherwise encumbers any of the person's interests in the Company as security for the
payment ofa.Debt, nnsuch pledge urhypothecation shall constitute aTransfer,and shall bemade on|v
pursuant to a pledge orhyootheca�onagnyen�entthat requires the n�dgeeorsecured party to be bound
'
bvall terms and conditions ofthis Part 9.
9.2 Permitted Transfers. Subject tothe conditions and restrictions set forth inparagraphs 9.3
and 9.6, a Member or Assignee may Transfer all or any portion of the Person's interests in the Company
atany time to:
(a) Any other Member;
(b) Any member of the transferor's Family, if the transferor is a natural person;
(d Any Affiliate of the transferor;
(d) The transferor's executor, administrator,trustee, or personal representative to whom
the interests are transferred at death or involuntarily by operation of law, if the transferor is a
natural person; or
(e) Any purchaser ifthe sale iemade inaccordance with paragraph 9.4.
9.3 Conditions tmPermitted Transfers. ATransfer shall not betreated asaPermitted
Transfer under paragraph 9.2 unless and until the following conditions are satisfied:
(a) Except in the case of a Transfer of a Person's interests in the Company at death or
involuntarily byoperation oflaw,the transferor and Transferee shall execute and deliver to the
Company all documents and instruments of conveyance necessary nrappnophateintheopinipn
of counsel to the Company to effect the Transfer and to confirm the agreement of the Transferee
to be bound by the provisions of this Part 9. In the case of a Transfer of a Person's interests in
the Company at death or involuntarily by operation of law, the Transfer shall be confirmed by
presentation to the Company oflegal evidence of the Transfer, in form and substance satisfactory
tocounsel tothe Company. }nall cases, the Company shall be reimbursed by the transferor
and/or Transferee for all costs and expenses that It reasonably incurs in connection with such a
Transfer.
(b) Except in the case of a Transfer at death or involuntarily by operation of law, the
transferor shall furnish tmthe Company anopinion ofcounsel, which counsel and opinion must be
satisfactory tothe Company,that the Transfer will not cause the Company hoterminate for
federal income tax purposes and that the Transfer will not cause the rules of§§168(g)(1 )(B)
and 168(h)of the Code (generally referred to as the"tax-exempt entity leasing rules")or similar
rules to apply to the Company, Company Property, or the Managers and Members.
(c} The transferor and Transferee shall furnish the Company with the Transferee's
taxpayer identification number,sufficient information to determine the Transferee's initial tax
basis in the Parson's interests inthe Company transferred, and any other information. reasonably
necessary to permit the Company to file all required federal and state tax returns and other
legally required information statements or returns. Without limiting the generality of the
foregoing, the Company shall not be required to make any distribution otherwise provided for in
this Agreement with respect to any Transfer until it has received the information.
PAGE 15 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
kU Except in the case ofuTransfer ofaPerson's intenestsinde Company atdeath or
involuntarily by operation of law, either:
(1) Such aPerson's interests in the Company shall be registered under the
Securities Act of 1933, as amended, and any applicable state securities laws; or
(3) The transferor shall provide anopinion ofcounsel, which opinion and counsel
must be satisfactory to the Company, to the effect that the Transfer is exempt from all
applicable registration requirements and that the Transfer will not violate any applicable
laws regulating the transfer ofsecurities.
(e) Except in the case ofaTransfer ofaPerson's interests inthe Company at death or
involuntarily bvoperation oflaw, the transferor shall provide anopinion ofcounsel,which opinion
and counsel must be reasonably satisfactory to the other Members,to the effect that the Transfer
will not cause the Company to be deemed to be an"investment company" under the Investment
Company Act of 1940.
9.4 Right of First Opportunity. In addition to the other limitations and restrictions set forth in
this Part S\ except as pwnndtaaj by paragraph 9'3, no Member shall Transfer oroffer toTransfer all or any
portion of their respective interests in the Company("the Offered Interests") unless the Member("the
Seller")first offers to sell the Offered Interest tothe other Members(collectively"the Offeree") pursuant
to the following terms: .
(a) Umiltation on Solicitations of Offers. No solicitation for any offer to buy the
Seller's interest in the Company shall be made until the Seller gives the Offeree notice of intent to
sell his or her interest, which notice shall include the purchase price and all payment terms
("Offer Notice"), and the Offeree does not within 30 days agree to buy the Seller's interest upon
the terms set forth in the Offer Notice. If the Seller does not receive the Ofharee'u acceptance
within the 3O'dayperiod, the Seller may proceed with its solicitations bosell his orher interest
upon the terms and conditions set forth |nthe Offer Notice. 1fthe Offeree does agree tobuy the
Seller's interest, the Seller's interest shall be bought, and the purchase shall be consummated
upon the terms and conditions set forth inthe Offer 0nboe'
(b) UmmbtatimxwmoTransfers. NuTransfers tonon-Members may bcmade under this
paragraph 9.4 unless the Seller has delivered the Offer Notice tothe Offeree and the Offeree has
not agreed bopurchase the interest upon the terms set forth therein with the 3O-dayperiod.
(c) Offeree Purchase. If the Offeree has agreed to purchase the interest upon the
terms set forth in the Offer Notice within the 30-day period, the Offeree and Seller shall have 60
days from the date ofacceptance(unless extended by mutual agreement)toclose the purchase
nndoa|e.
(d) Solicitation Rights. Dthe Offeree has not agreed Lopurchase the interest upon
the terms set forth in the Offer Notice within the 30-day period, or the purchase does not close
within the 60-day period (including any extensions)due to no fault of the Seller, Seller may solicit
to sell his or her interest to non-Members upon the terms set forth in the Offer Notice. Provided,
however, any sale must be on the same terms set forth in the Offer Notice and must dcoe within
180 days of the date ofthe Offer Notice.
(e) Re-Offer to Offeree. If the Seller does not close the sale of his or her interest
within the 180-day period, or the terms,of a proposed sale are materially more favorable to the
buyer than the terms set forth inthe Offer Notice, the Seller must again comply with paragraph
9.4(a)/ (b), (c) and (d).
PAGE 16 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
9.5 Prohibited Transfers. Any purported Transfer of a Person's interests in the Company that
isnot oPermitted Transfer shall benull and void and ofnoforce mfeffect whatever; pnzvided �
'
the Company is �' ��' '
.'� ` �ompenKmits
.sole discretion, elects to recognize a Transfer that is not aPermitted Trans�,�ai����n�m�
ahmObesthcdyUm�adtothe�an�ero�sEconomn�.R��svv�hrespect tothe
'transferred interest, with
distributions first applied (without limiting any other legal or equitable rights of the[ompa 'Company)
any deb�,obQga�om�orUabU�esfor damages that the�ansfen�orTnans��meemay have the satisfy
Company.
In the case of a Transfer or attempted Transfer of a Person's interests in the Company that is not
a Permitted Transfer,the parties engaging or attempting to engage in the Transfer shall be liable to
indemnify and hold harmless the Company and the other Members from all cost, liability, and damage
that any of the indemnified Persons may incur(including but not limited to incremental tax liability and
lawyers'fees and expenses)as a result of the Transfer or attempted Transfer and efforts to enforce the
indemnity granted bythis Agreement.
9.6 Rights and Obligations mfAssignees and Assignors. lnaddition torights and
obligations under applicable law, Assignees and Members transferring interests have the following rights
and obligations:
(a) An assignment of a Person's interest in the Company does not itself dissolve the
Company or entitle the Assignee to become a Member or exercise any Management Rights. A
Person who acquires a Person's interests inthe Company but who isnot admitted asaSubstitute
Member pursuant toparagraph 9'7shall be entitled only 0mthe Economic Rights with respect to
the interests,and shall have no right to any information or accounting of the affairs of the
Company, and shall not be entitled to inspect the books or records of the Company.
(b) A Member's assignment of an interest in the Company shall not cause the Member to
cease to be a Member or give the Assignee the power to exercise the Management Rights
associated with the Member's Membership Interest unless and until the Assignee becomes a
Substitute Member, and an Assignee has no liability as a Member solely as a result of the
assignment. A Member who assigns an interest in the Company is not released from any liability
tothe Company solely emaresult ofthe assignment ofthe Economic Rights.
(c) If a court of competent jurisdiction charges, aMembership Interest with the payment
of an unsatisfied amount of a judgment with interest, to the extent so charged the judgment
creditor shall betreated aoan,Assignee.
9.7 Acceptance mfAssignee amSubstitute Memnber, AnAssignee shall become aSubstitute
Member asfqHovvs-
(o) Subject to the other provisions of this Part 9,a Transferee of Economic Rights may
be admitted to the Company as a Substitute Member, with all Management Rights of a Member,
only upon satisfaction ofall conditions set forth inthis paragraph 9'7.
(1) The Managers consent tothe admission,which consent may begiven mv
withheld inthe sole and absolute discretion ofthe Managers; provided, however, if no
Manager ksaMember orthe Manager is the transferor, Members with aggregate Sharing
Ratios over 50% must consent bnthe admission. Notwithstanding the foregoing, no
consent is required if the transfer of interests is by reason of or Incident to death,
dissolution, liquidation, merger, or termination of the transferor and the Membership
Interests with respect to which the Transferee is being admitted were acquired by means
of Permitted Transfer.
'PAGE I7 -AMENDED AND RESTATED OPERATING AGREEMENT OFEAGLE PACIFIC INVESTORS, LL[
(2) Unless approved bvMembers with aggregate Sharing Ratios over G096 the
Membership Interests with respect to which the Transferee is being admitted were
acquired bvmeans ofa Permitted Transfer.
(3) The Transferee shall become aparty tothis Agreement asnMember bv
signing an Admission Agreement and execute such documents and instruments as the
Managers may reasonably request as may be necessary or appropriate to confirm the
Transferee as a Member in the Company and the Transferee's agreement to be bound by
the terms and conditions ofthis Agreement.
(4) TheTransferee shall pay orreimburse the Company for all reasonable legal,
filing,and publication costs that the Company incurs inconnection with the admission of
the Transferee as a Member with respect to the Transferred Interests.,
(B The Transferee shall provide the Company wit hevidence satisfactory to
counsel for the Company that the Transferee has made each of the representations and
undertaken each of the warranties contained in the Transferee's Admission Agreement,
(6) If the Transferee bnot anIndividual of legal majority, the Transferee shall
provide the Company with evidence satisfactory tocounsel for the Company mfthe
authority of the Transferee to become a Member and to be bound by the terms and
conditions ofthis Agreement.
(b) AnAssignee who becomes aSubstitute Member has, to the extent assigned, the
rights and powers and is subject bothe restrictions and liabilities of aMember under the Act, the
Articles and this Agreement, and isalso liable for
' nyobUgaUmnsofthe assignor tonnahe
Conhibudom� but isnot obligated for |�bUkJesmeasonab|yunknown tothe Assignee atthe time
the Assignee becomes a Member.
(c) Even |fanAssignee becomes aSubstitute Member, the assignor isnot released from
the assignor's liability to the Company, but ceases to be a Member when the Assignee becomes a
Substitute Member with respect tpthe Transferred Membership Interest.
9.8 Distributions and Allocations Regarding Transferred Interests. ITany Person's
interest in the Company is Transferred during any Fiscal Year in compliance with the provisions of this
Part 9, Profits, Losses, each item of them,and all other items attributable to the interest for the Fiscal
Year shall be divided and allocated between the transferor and the Transferee by taking into account
their varying interests during the Fiscal Year in accordance with§706(d) of the Code, using any
conventions permitted by law and selected by the Managers. All distributions on or before the date of the
Transfer shall be made to the transferor, and all distributions thereafter shall be made to the Transferee.
Solely for purposes of making the allocations and distributions, the Company shall recognize the Transfer
not later than the end of the calendar month during which it is given notice of the Transfer; provided,
however, ifthe Company isgiven notice ofnTransfer at}easttenBusinessDaysbe[oretheTnansfer,the
Company shall recognize the Transfer as the date of the Transfer; and provided further, Ifthe Company
does not receive a notice stating the date the interest was Transferred and the other information as the
Managers may reasonably require within 30 days after the end of the Fiscal Year during which the
transfer occurs, then all such Items shall be allocated, and all distributions shall be made, to the Person
who, according to the books and records of the Company, was the owner of the interest on the last day
of the Fiscal Year during which the Transfer occurred. Neither the Company nor any Manager shall incur
any liability for making allocations and distributions in accordance with the provisions of this paragraph
9.8, whether ornot any Manager o/the Company has knowledge cf any Transfer ofownership ofany
interest.
PAGE 18 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Part 10--CESSATION OF A MEMBER
10.1 Cessation. A person shall cease to be a Member upon any of the following events:
(a) The withdrawal of the Member pursuant to paragraph 10.2;
(b) The Bankruptcy of a Member;
(c) In the case of a Member who is a natural person, the death of the Member or the
entry of an order by a court of competent jurisdiction adjudicating the Member incompetent to
manage the Member's personal estate;
(d) In the case of a Member who is acting as a Member by virtue of being trustee of a
trust,the termination of the trust or merely upon the substitution of a new trustee;
(e) In the case of a Member that is a separate Entity other than a corporation,the
dissolution and commencement of winding up of the separate Entity;
(f) In the case of a Member that is a corporation, the filing of articles of dissolution or its
equivalent,for the corporation or the revocation of its charter;
(g) In the case of an estate,the distribution by the fiduciary of the estate's entire
interest in the Company; or
(h) Transfer of a Member's Membership Interest together with an acceptance of the
Transferee as a Substitute Member.
10.2 Withdrawal. A Member may withdraw voluntarily from the Company, at any time and
shall thereafter be treated as an Assignee for all purposes in accordance with the Act.
Part 11--DISSOLUTION AND WINDING UP
11.1 Covenant Not to Cause Dissolution. Except as otherwise permitted by this Agreement,
no Member shall take any action that would cause the Company to dissolve, and, notwithstanding any
provision of the Act, the Company shall not dissolve before the occurrence of a Dissolution Event.
11.2 Dissolution Events. The Company shall dissolve and commence winding up and
liquidating upon the first to occur of any of the following Dissolution Events:
(a) The sale of all or,substantially all Company Property;
(b) The vote of the Members to dissolve,wind up, and liquidate the Company; or
(c) Any other event that makes it unlawful, impossible, or impractical to carry on the
business of the Company.
Notwithstanding anything in the Act to the contrary, the foregoing events are the exclusive events that
may cause the Company to dissolve.
11.3 Continuation. Upon the occurrence of any Dissolution Event set forth in paragraph
11.2(d),the Company shall not be dissolved or required to be wound up if at the time of the event there
are at least one remaining Member and within 120 days after the event Members with aggregate Sharing
Ratios over 50% agree and elect, in writing, to continue the business of the Company. Upon any such
election by the Members, all Members shall be bound by the election and shall be deemed to have
PAGE 19 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
consented to the election. Unless suchan election is made within the 120-day period, the Company shall
wind up its affairs in accordance with paragraph 11.4. If such an election is made within the 120-day
period the Company shall continue until the occurrence of another Dissolution Event as provided in
paragraph 11.2; provided however, the right ofthe Members 0mcontinue the business nfthe Company
shall not exist and may not beexercised unless the Company hos received an opinion of counsel, in a
form and content satisfactory to the Company, that the Company would not cease to be treated as an
partnership for federal income tax purposes upon the exercise of the right to continue'
11.4 Winding Up. Upon the occurrence of Dissolution Event, and unless the election to
continue the business ofthe Company ismade pursuant bm paragraph 11.3, the .Company shall continue
solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying
the claims of Its creditors and Members; and-no Member shall take any action that is inconsistent with, or
not necessary to or appropriate for, the winding up of the Company's business and affairs.To the extent
not inconsistent with the foregoing, all obligations in this Agreement shall continue in full force and effect
until all Company Property has been distributed pursuant tothis paragraph 11.4.The Managers shall be
responsible for overseeing the winding up and dissolution of the Company, shall take full account of the
Company's liabilities and Property, shall cause all Company Property to be liquidated as promptly
consistent with obtaining its fair value, and shall cause the proceeds from the liquidation, to the extent
they are sufficient, to beapplied and distributed in the following order:
(a) First, to the payment and discharge of all of the Company's debts and liabilities to
creditors; and
(b) To the Members to the extent that their Capital Accounts are positive and the
balance, if any, to the Members in accordance with their respective Sharing Ratios.
NnManager shall receive any additional compensation for any services performed pursuant tothis Part
11.
11.5 Compliance With Regulations; Deficit Capital Accounts. Ifthe Company is
"liquidated" within the meaning of§ 1.704-1 (b)(2)(il)(g)of the Regulations, distributions shall be made
pursuant tothis Part11UoaUMembesmhohaveposUjveCapita|Accountsincomp|iancevv¢h01.784-1
(b)(2)(i|)(b)(2)of1heRegu\ations. TfanyMemherhnsadeficitCopita|Acoountba|ance(oftergivingafhyct
to all contributions, distributions, and allocations for all Fiscal Years, including the Fiscal Year during which
the liquidation occups), the Member shall have noobligation tomnokcaoyContributionvvRhrespecttothe
deficit and the deficit shall not be considered a debt owed to the Company or hmany other Person for any
purpose whatsoever. lnthe discretion ofthe Managers, apro rata portion ofthe distributions that would
otherwise bamade bothe Members pursuant tothis Part 11may be:
(a) Distributed toatrust established for the benefit ofthe Members for the purposes o[
liquidating Company assets, collecting amounts owed to the Company, and paying any contingent
.or unforeseen liabilities orobligations oftheCompany.Theassetsofanysuchtnustmha|| be
distributed to the Members from time to time, in the reasonable discretion of the Managers, in
the same proportions as the amount distributed to the trust by the Company would otherwise
have been distributed to the Members pursuant to paragraph 11.4; or
(b) Withheld to provide reasonable reserve for Company liabilities(contingent or
otherwise)and to reflect the unrealized portion of any installment obligations owed to the
Company, provided that the withheld amounts shall be distributed to the Members as soon as
practicable.
11.6 Deemed DUsbibu*iomand Rexcimtribmtimn. Notwithstanding other provision of this
Part11, ifd1eGomnpanyb |iquidatedwithinthemeaningofO1.704-1 (b)(2)/k)(o) oftheRegulabonsbut
noDissolution Event has occurred, Company Property shall not beliquidated, the [bmpmny'mUmbUities
shall not be paid or discharged, and the Company's affairs shall not bewound up. Instead, solely for
PAGE 2 0 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
'
federal income tax purposes,the Company shall be deemed to have distributed Company Property in kind
to the Members, who shall be deemed to have assumed and taken subject to all_ Company` _ liabilities,' - all in
accordance with paragraph 11.4. Immediately thereafter, the Members shall be deemed to have re-
contributed the
contrbutadthe Property in kind tothe Company,which shall bedeemed tohave assumed and taken
subject _ all such liabilities,
11.7 Rights of Members. Except asotherwise provided hnthis Agreement:
bA Each Member shall look solely to the assets ofthe Company for the return of
Contributions and shall have no right or power to demand or receive property other than cash
from the Company; and
(b) No Member shall have priority over any other Member as to the return of
Contributions, distributions, orallocations.
11.8 Notice of Dissolution. IfoDissolution Event occurs manevent occurs that would, but
for paragraph 11.3, result in a dissolution of the Company, the Managers shall,within 30 days thereafter,
provide written notice ofdissolution to each ofthe members and to all other parties with whom the
Company regularly conducts business(as determined in the discretion of the Managers), and shall publish
notice of dissolution in a newspaper of general circulation in each place in which the Company regularly
conducts business(as determined inthe discretion ofthe Managers).
Part 12_TAXES
12.1 Elections. The Managers may make any tax elections for the Company allowed under the
Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company,
.
including but not limited toelections*
(a) Toadjust the basis ofCompany Property pursuant to§0754, 734(b), and 743(b) of
the Code, or comparable provisions of state or local law, in connection with transfers of interests
inthe Company and Company distributions;
(b) With the consent ofthe Members, to extend the statute cflimitations for assessment
oftax defidenciesagainst Members with respect toadjustments bothe Company's federal, state,
orlocal tax returns; and
(c) Tothe extent in00G221through 6B1of the Code, to represent the
Company, the Managers, and the Members before taxing authorities nroourts.of competent
jurisdiction in tax matters affecting the Company, the Managers, and the Members in their
capacities as Managers or Members,to file any tax returns, and to execute any agreements or
other documents relating tooraffecting the tax matters, including agreements orother
documents that bind the Managers and Members with respect to the tax mattersor otherwise
affect the rights nfthe Company, Managers, and Members,
12,2 Taxes wfTaxing 3urisdictions. Tothe extent that the laws ofany taxing jurisdiction
require, each Member requested todoso by the Managers will submit anagreement indicating that the
Member will make timely income tax payments to the taxing jurisdiction and that the Member accepts
personal jurisdiction of the taxing jurisdiction with regard to the collection of income taxes attributable to
the Member's income, and interest and penalties assessed on the income. If the Member fails to provide
the agreement,the Company may withhold and pay over to the taxing jurisdiction the amount of tax,
penalty, and interest determined under the laws of the taxing jurisdiction with respect to the income. Any
such payments with respect to the income of a Member shall be treated as a distribution for purposes of
Part 7ofthis Agreement. The Managers may, where permitted by the rules of any taxing jurisdiction,file
a composite, combined,or aggregate tax return reflecting the income of the Company and pay the tax
PAGE 2I 'AMENDED AND RESTATED OPERATING AGREEMENT OFEAGLE PACIFIC INVESTDRS, LLC
interest,and penalties of some or all Members on the income to the taxing jurisdiction, in which case the
Company shall inform the Members of the amount of the tax, interest, and penalties so paid.
12.3 Tax Matters Member. David P. Nicoll is designated the tax matters member of the
Company pursuant to§6231 (a)(7)of the Code. If at any time he is not eligible to act as tax matters
member,the Managers shall designate,one of their number or, if there are no Managers, any other
Member as the tax matters member of the Company pursuant to§ 6231 (a)(7)of the Code. Any Member
designated as tax matters member shall take any action necessary to cause each other Member to
become a notice partner within the meaning of§ 6223 of the Code. Any Member who is designated tax
matters member may not take any action contemplated by§§6222 through 6232 of the Code without
the consent of the Managers.
Part 13 -- BOOKS,RECORDS, AND ACCOUNTINGS
13.1 Books and Records. At the expense of the Company, the Managers shall maintain
records and accounts of all operations and expenditures of the Company. At a minimum, the Company
shall keep at David P. Nicoli's principal place of business the following records:
(a) A current list of the full name and last known business, residence, or mailing address
of each Member and Manager, both past and present;
(b) A copy of the Articles and all amendments to them, together with executed copies of
any powers of attorney pursuant to which any amendment has been executed;
(c) Copies of the Company's federal, state, and local income tax returns and reports, if
any, for the three most recent years;
(d) Copies of the Company's currently effective written Operating Agreement and all
amendments to it, copies of any writings permitted or required under the Act, and copies of any
financial statements of the Company for the three most recent years;
(e) Minutes of every meeting of the Members or Managers, and any written consents
obtained from Members or Managers for actions taken without a meeting; and
(f) A statement prepared and certified as accurate by a Manager that describes the
amount of cash, and a description and statement of the agreed value of other Property or
consideration, contributed by each Member and that each Member has agreed to contribute in
the future, the times at which or events on the occurrence of which any additional Contributions
agreed to be made by each Member are to be made, and, if agreed upon, the time at which or
the events on the occurrence of which the Company is dissolved and its affairs wound up.
13.2 Reports. The Managers shall provide reports at least annually to the Members at the time
and in the manner the Managers may determine is reasonable.In addition, if the Company indemnifies or
advances expenses to a Manager in connection with a proceeding by or in the right of the Company,the
Company shall report the indemnification or advance in writing to the Members.
Part 14--AMENDMENT
This Agreement may be amended, restated, or modified from time to time only by a written
instrument adopted by at least 66 2/3's of the Members in terms of Sharing Ratios. No Member or
Manager shall have any vested rights in this Agreement that may not be modified through an amendment
to this Agreement.
PAGE 22 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
Part 15 DEFINMONS
15.1 "Act" means the Oregon Limited Liability Company Act.
15.2 "Additional Contribution" means any Contribution made pursuant to paragraph 5.3.
15.3 "Additional Member" means a Member, other than an Initial Member or a Substitute
Member,who has acquired a Membership Interest from the Company.
15.4 "Adjusted Contributions" means, as of any day, a Member's Contributions adjusted as
follows:
(a) increased by the amount of any Company liabilities which, in connection with
distributions pursuant to paragraphs 7.3(a)and 11.4(c), are assumed by the Member or are
secured by any Company Property distributed to the Member;
(b) Increased by any amounts actually paid by the member to any Company lender
pursuant to the terms of any Assumption Agreement;and
(c) Reduced by the amount of cash and the Gross Asset Value of any Company Property
distributed to the Member pursuant to paragraphs 7.3(a) and 11.4(c) and the amount of any
liabilities of the Member assumed by the Company or that are secured by any Property
contributed by the Member to the Company.
In determining the amount of any liability for the purpose of this definition, there shall be taken into
account§752(c) of the Code and any other applicable provisions of the Code and the Regulations, and in
the event of a Transfer of all or any portion of a Person's Economic Rights in accordance with the terms
of this Agreement, the Transferee shall succeed to the Adjusted Contributions of the Person to the extent
it relates to the Transfer of the Person's Economic Rights.
15.5 "Adjusted Deficit" means, with respect to any Member, the deficit balance, if any, in the
Member's Capital Account as of the end of the relevant Fiscal Year, adjusted as follows:
(a) Increased by any amounts that the Member is obligated to restore pursuant to any
provision of this Agreement or is deemed to be obligated to restore pursuant to the next-to-last
sentences of§§ 1.704-2(g)(1 ) and 1.704-2(i)(5)of the Regulations; and
(b) Decreased by the items described in§§ 1,704-1 (b)(2)(4)(d)(4), 1.704-
(b)(2)(ii)(d)(5), and 1.704-1 (b)(2)(ii)(d)(6)of the Regulations.
The foregoing definition of Adjusted Deficit is intended to comply with the provisions of§ 1.704-1
(b)(2)(ii)(d)of the Regulations and shall be interpreted consistently with them.
15.6 "Admission Agreement" means the agreement between a Member and the Company
described in paragraphs 5.1, 5.3, 8.1, and 9.8.
15.7 "Affiliate" means, with respect to any Person:
(a) Any Person directly or indirectly controlling, controlled by, or under common control
with the Person;
(b) Any Person owning or controlling 10% or more of the outstanding voting interests of
the Person;
PAGE 2 3 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
(c) Any officer, director, or manager of the Person; or
(d) Any Person who is an officer, director, manager,trustee, or holder of 10% or more
of the voting interests of any Person described in clauses (a)through (c)of this paragraph.
For purposes of this definition, the terms "controls", "is controlled by", or"is under common control with"
mean the possession,direct or indirect, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
15.8 "Agreement" means this Operating Agreement as originally executed and as amended or
restated from time to time.
15.9 "Articles" means the Articles of Organization of the Company as filed with the Secretary
of State of Oregon and as they may be amended or restated from time to time.
15.10 "Assignee" means a Transferee who has not been admitted as a Substitute Member.
15.11 "Assumption Agreement" means any agreement between the Company, any of the
Members, and any Person to whom the Company is indebted pursuant to a loan agreement, any seller
financing with respect to an installment sale, a reimbursement agreement,or any other arrangement
(collectively referred tows a"loan" for purposes of this Agreement) pursuant to which any Member
expressly assumes any personal liability with respect to the loan.The amount of any such loan shall be
treated as assumed by the Members for all purposes under this Agreement in the proportions set forth in
the Assumption Agreement, and their respective amounts so assumed shall increase their respective
Capital Accounts pursuant to paragraph 5.4(a). To the extent the loan is repaid by the Company, the
Members' Capital Accounts shall decrease by their respective shares of the repayments pursuant to
paragraph 5.4(b).To the extent the loan is repaid by some or all Members from their own funds, there
shall be no adjustments to their Capital Accounts.
15.12 "Bankruptcy" means, with respect to any Person, a Voluntary Bankruptcy or an
Involuntary Bankruptcy as defined in the Act.
15.13 "Business Day" means any day other than Saturday, Sunday, or any legal holiday
observed in Oregon.
15.14 "Capital Account" means the account maintained with respect to a Member determined
in accordance with paragraph 5.4.
15.15 "Capital Interest" means the same as Sharing Ratio.
15.16 "Cessation" means any action that causes a Person to cease to be Member as described
in Part 10 of this Agreement.
15.17 "Code" means the Internal Revenue Code of 1986, as amended, or corresponding
provisions of subsequent superseding federal revenue laws.
15.18 "Company" means EAGLE PACIFIC INVESTORS, LLC
15.19 "Company Minimum Gain" means the same as"partnership minimum gain" as set
forth in §§ 1.704-2(b)(2) and 1.704(d) of the Regulations.
15.20 "Company Property" means any Property owned by the Company.
15.21 Reserved.
PAGE 2 4 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS,LLC
15.22means those Members making ContributiContributions as a result of
the���ofa M��rton�|eContributions as described in Part Softhis Agreement.
15.23 ° means, with respect boany Member, the amount ofmoney and the
initial Gross Asset Value ofany Property(other than mvthe fair market value ofservices
contributed or to be contributed to the Company with respect tothe interest inthe Company held by the
Person. '
15.24 "Debt` means any one ormore ofthe following:
(a) Any indebtedness for borrowed money mthe deferred purchase price ofproperty or
evidenced bvanote, bonds,urother instruments;
(b) Obligations ama lessee under capital leases
hj Obligations secured byany mortgage, pledge,security interest, encumbrance, lien,
or charge of any kind existing on any asset owned or held by the Company whether or not the
Company has assumed orbecome liable for the obligations sosecured;
(d) Any obligation under any interest rate swap agreement(the principal amount of the
obligation shall be deemed to be the notional principal amount on which the swap is based); and
(e) Obligations under direct orindirect guaranties of(including obligations(contingent or
otherwise)toassure acreditor against loss inrespect of) indebtedness ovobligations ofthe kinds
referred to in clauses(a) -(d) above, provided, however, Debt shall not include obligations in
respect of any accounts payable that are incurred in the ordinary course of the Company's
business and are not delinquent or are being contested in good faith by appropriate proceedings,
15.25 "Default Interest RaWmeans the lesser cUany maximum legal rate, orthe then-
current prime rate quoted iothe Wallstreet Journal, plus 1.0 percent.
15.26 "Delinquent Member" means aMember orAssignee who has failed to fulfill
Contribution obligation.
15,27 "Depxedation" means, for each Fiscal Year,an amount equal tothe depreciation,
amortization, or other cost-recovery deduction allowable with respect to an asset for the Fiscal Year,
except that|fthe Gross Asset Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of the Fiscal Year, Depreciation shall be an amount that bears the same ratio
bothe beginning Gross Asset Value esthe federal income tax depreciation, amortization, orother cost-
recovery deducbonforLheFisco|YearbeamboLhabeginningadjuetedUexbmnis; /xmwided, ym*wemar, if
the adjusted basis for federal income tax purposes of an asset at the beginning of the Fiscal Year is zero,
Depreciation shall be determined with reference to the beginning Gross Asset Value using any reasonable
method selected bythe Managers.
15.20 "Dissolution Evem8umeans the events identified |nparagraph 11'2.
15.29 "Economic Rights" means a Member's allocation of the Profits and Losses of the
Company, and any distributions made by the Company to such Member pursuant to the Act, the Articles,
and this Agreement, but shall not include any Management Rights.
15.30 "Effective Date" means the date upon which the Articles are flied with the Oregon
Secretary of State.
PAGE 25 -AMENDED AND RESTATED OPERATING AGREEMENT OFEAGLE PACIFIC INVESTORS, LLC
15.31 "Entity" means any general partnership, limited partnership, limited liability company,
corporation,joint venture, trust, business trust, cooperative,or association, or any foreign trust orforeign
business organization.
15.3 ° means a Member's spouse, natural and adoptive lineal ancestors and
descendants, and trusts for which any of them are more than insignificant beneficiaries. -'
15.33 "Fiscal Year" means the fiscal year, which shall bcdetermined
pursuant to0706 of the Code.
15.34 "Gross Asset Value" means anasset's adjusted basis for federal income tam
purposes, except asfollows: .
(a) The initial Gross Asset Value ofany asset contributed byaMember tnthe Company
shall bethe gross fair market value ofthe asset, asdetermined bythe contributing Member and
the Managers;
(b) The Gross Asset Values ofassets shall beadjusted to equaltheir respective gross fair
market values,as determined by appraisal orconsent of all Members, as of the following times:
(1) Anew Member's admittance inthe Company ana Member/nexchange for
more than adenminimisconthbubon^
'
(2) An existingMember makes anadditional contribution ofcapital tathe
Company inaccordance with paragraph 53(c).
(3) The distribution bvthe Company bmaMember ofmore than ade
minimis amount of Property in partial liquidation or redemption of the Member's interest
inthe Company; and
(4) The liquidation of the Company within the meaning cf8 1'704'1 (b)(Z)(i)(g)
of the Regulations; provided, however, adjustments pursuant to clauses(1), (2) and (3)
above shall be made only if the Managers reasonably determine that the adjustments are
necessary or appropriate to reflect the relative economic interests of the Members;
(c) The Gross Asset Value of any asset distributed toany Member shall beadjusted to
equal the gross fair market value of the asset on the date of distribution asdetermined by the
distributee and the Managers;
(d) The Gross Asset Values of assets nhoU be increased (or decreased)to reflect any
adjustmemtsbotheachusbedbasisofLheassetspursumntbo0§ 734(b)or743(b)oftheCode but
only to the extent that the adjustments are taken into account in determining Capital Accounts
pursuant to@1.7O4'1 (b)(3)(iv)(m)ofthe Regulation and paragraphs 1S.S3(f)and 7.3(g);
provided, however, Gross Asset Values shall not be adjusted pursuant bothis paragraph 15.]4(d)
to the extent the Managers determine that an adjustment pursuant to paragraph 15,34(b) is
necessary or appropriate in connection with a transaction that would otherwise result in an
adjustment pursuant to this paragraph 15.33(d); and
(e) The foregoing adjustments shall bemade inlieu ofany adjustments or
allocations provided for in Sectio 38(4) of the Act.
If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraphs 15.34(a),
15.34(b),or 15.34(d), the Gross Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to the asset for purposes of computing Profits and Losses.
PAGE 2 6 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
15.35 "Initial Contribution" means the initial Contribution made pursuant to
paragraph 6.1.
15-36 "Initial Manager" means David P. Nicoli.
15.37 "Initial Members" means David P. Nicoli and Rebecca Nicoli.
15.38 "Involuntary Bankruptcy" means, with respect to any Person, an involuntary
bankruptcy is defined in the Act.
I5.39 "Majority" means,with respect to the Members, greater than 50%, in terms of Sharing
Ratios, of all the Members. "Majority"means, with respect to the Managers or the remaining Manager,
greater than 50%, by number, of all the Managers or all the remaining Managers.
15.40 "Management Rights" means the rights of a Member to participate in the management
of the Company, including the rights to information and to consent or approve actions of the Members.
15.41 "Manager" means a Person designated or selected to manage the affairs of the
Company under Part 3 of this Agreement.
15.42 "Member" means each of the parties who executes a counterpart of this Agreement as
an Initial Member and each of the parties who may hereafter become Additional or Substitute Members.
15.43 "Member Non-recourse Debt" has the meaning set forth in § 1.704-2(b)(4)of the
Regulations for"partner non-recourse debt".
15.44 "Member Non-recourse Debt Minimum Gain" means an amount, with respect to
each Member Non-recourse Debt, equal to the Company Minimum Gain that would result if the Member
Non-recourse Debt were treated as a Non-recourse Liability, determined in accordance with§ 1.704-
2(1)(3)of the Regulations.
15.45 "Member Non-recourse Deductions" has the meaning set forth in§ 1.704-2(i)(1)and
1.704-2(i)(2)of the Regulations for,"partner non-recourse deductions".
15.46 "Membership Interest" means a Member's entire interest in the Company including the
Members Economic Rights and Management Rights,
15.47 "Net Cash From Operations" means the gross cash proceeds from Company
operations (including sales and dispositions of Company Property in the ordinary course of business) less
the portion of proceeds used to pay or establish reserves for all Company expenses, debt payments,
capital improvements, replacements, and contingencies, all as determined by the Managers. "Net Cash
From Operations" shall not be reduced by depreciation, amortization,cost-recovery deductions, or similar
allowances, but shall be increased by any reductions of reserves previously established pursuant to the
first sentence of this paragraph 15.47 and paragraph 15.48.
15.48 "Net Cash From Sales or Refinancings" means the net cash proceeds from all sales
and other dispositions (other than in the ordinary course of business)and all refinancings of Company
Property, less any portion of proceeds used to establish reserves, all as determined by the Managers.
"Net Cash From Sales or Refinancings" shall include all principal and interest payments with respect to
any note or other obligation received by the Company in connection with sales and other dispositions
(other than in the ordinary course of business) of Company Property,
15.49 "Non-recourse Deductions" has the meaning set forth in § 1.704-2(b)(1)of the
Regulations.
PAGE 27 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
15.50 has the maningset forth in 1.704-2(b)(3 of the
Regulations
15.51 "Person" means any natural person or Entity, and the heirs, executors, administrators,
legal representatives, successors, and assigns of the "Person"where the context so permits.
15.52 "Permitted Transfer" meansaTransfero[aRanaon'sinterestiotheCornpanyio
accordance with paragraph 9.2.
15.53 "Profits" and "Losses" means, for each Fiscal Year, an amount equal to the Company's
taxable Income or loss for the Fiscal Year,determined in accordance with§703(a)of the Code(for this
purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to§
703(a)(1 )of the Code shall be included in taxable income or loss), with the following adjustments.
(a) Any income ofthe Company that isexempt from federal income tax and not
otherwise taken into account incomputing Profits orLosses pursuant tothis paragraph 15.53
shall beadded tothe taxable income orloss;
(b) Any expenditures of the Company described in§705(a)(2)(B)of the Code or treated
amCode&7O5/a\(2)(B0expenditures pursuant to& 1.7D4'1 (b)(2)(k/)U\ cfthe Regulations,and
not otherwise taken into account incomputing pnzfitsorlosses pursuant tothis paragraph 1S.53
shall besubtracted from the taxable income prloss;
�
(c) �t������lue ofany Company asset is adjusted pursuant to paragraph
15.]4(b)orparagraph 15.34(c), the amount ofthe adjustment shall betaken into account as
gain or loss from the disposition of the asset for purposes of computing Profits or Losses;
` (d) Gain or loss resulting from any disposition of Company Property with respect to
which gain or loss is recognized for federal income tax purposes shall be computed by reference
to the Gross Asset Value of the Company Property disposed of, notwithstanding that the adjusted
tax basis ofthe Property differs from its Gross Asset Value;
(e) In |ieuofthedepreciaUon, annortbaton,andoUhercost-necoverydadudionstaken
into account in computing the taxable income or loss,there shall be taken into account
Depreciation for the Fiscal Year, computed inaccordance with paragraph 15.27;
0Tnthe extent an adjustment of the adjusted tax basis ofany Company asset
pursuant ho§Q734(b) and 742(b)ofthe Code |srequired pursuant to§ 1.7O4'1 /bl(2)(k)/m\(4)
of the Regulations to be taken into account in determining Capital Accounts as a result of a
distribution other than in complete liquidation of a Member's Economic Rights, the amount of the
adjustment shall betreated a6unitem ofgain(if the adjustment increases the basis mfthe asset)
- orloss (if the adjustment decreases the basis cf the asset)from the disposition ofthe asset and
shall betaken into account for purposes ofcomputing Profits orLosses; and
(g) Notwithstanding any other provision of this paragraph 15.53, any items that are
specially allocated pursuant tpparagraphs 6.3orG'4shall not betaken into account incomputing
Profits urLosses.
The amounts mf the items of Company income, gain, loss, mdeduction available to bespecially allocated
pursuant to paragraphs 6.3 and 6.4 shall be determined by applying rules analogous to those set forth in
paragraphs 15.53(a)through 15.S3/M.
15.54 "Property" means any property, real or personal, tangible orintangible, including money
and any legal orequitable interest/nthe property but excluding services and promises toperform
services in the future.
PAGE 2 8 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
15.55 "Regulations" means proposed, temporary, and final regulations promulgated under the
Code in effect as of the date of filing the Articles and the corresponding sections of any regulations
subsequently issued that amend or supersede the regulations.
15.56 "Sharing Ratio" means the percentage of ownership interest of a Member, as set forth
opposite the Member's name in paragraph 6.1, as such fractional interest may be adjusted from time to
time pursuant to the provisions of this Agreement.
15.57 "Substitute Member"means an Assignee who has been admitted to all rights of
membership pursuant to this Agreement.
15.58 "Transferee" means the owner of Economic Rights who is not a Member.
15.59 "Transfer" means, as a noun, any voluntary or involuntary transfer, sale, or other
disposition and, as a verb, voluntarily or involuntarily to transfer, sell,or otherwise dispose of.
15.60 "Voluntary Bankruptcy" means,with respect to any Person, a voluntary bankruptcy as
defined in the Act.
Part 16-- MISCELLANEOUS
16.1 Application of Oregon Law. This Agreement, and the application of interpretation of it,
shall be governed exclusively by its terms and by the laws of Oregon, and specifically the Act.
16.2 Construction. Whenever the singular number is used in this Agreement and when
required by the context, it shall include the plural and vice versa, and the masculine gender shall include
the feminine and neuter genders and vice versa.
16.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same instrument.
16.4 Execution of Additional Documents. Each Member shall execute all other and further
statements of interest and holdings, designations, powers of attorney, and other instruments necessary to
comply with any laws, rules, or regulations.
16.5 Headings. The headings in this Agreement are inserted for convenience only and are in
no way intended to describe, interpret; define,or limit the scope,extent, or intent of this Agreement or
any provision of this Agreement.
16.6 Notices. Any notice,demand, or communication required or permitted to be given by any
provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes if
delivered personally to the party or town executive officer or partner of the party to whom it is directed
or, if sent by mail, postage prepaid, addressed as follows:
to the Company: c/o David P. Nicoli
19600 S.W. Cipole Road
Tualatin, OR 97062
to David P. Nicoll: 19600 S.W. Cipole Road
Tualatin, OR 97062
to Rebecca Nicoll: 19600 S.W.Cipole Road
Tualatin, OR 97062
PAGE 29 -AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
to Jack Hogan: 2575 Palisades Crest Drive
Lake Oswego, OR 97034
or to any other address a party may designate by notice to the other parties, Except as otherwise
-provided in this Agreement, any such notice shall be deemed to be given three business days after the
date on which it was deposited in a regularly maintained receptacle for the deposit of United States mail,
addressed and sent in accordance with this paragraph.
16.7 Rights and Remedies Cumulative. The rights and remedies provided by this
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.These rights and remedies are given in addition to any
other rights the parties may have by law, statute,ordinance,or otherwise.
16.8 Severability. If any provision of this Agreement or its application to any person or
circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and
its application shall not be affected and shall be enforceable to the fullest extent permitted by law.
16.9 Waivers. A provision of this Agreement may be waived only by a written instrument
executed by the party waiving the provision. No waiver of any provision of this Agreement shall constitute
a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of that provision
or of any other provision.
16.10 Arbitration. If any controversy or claim arising out of this Agreement or the
membership relationship cannot be settled, the controversy or claim shall be settled by arbitration in
accordance with the rules of the Arbitration Service of Portland,Inc. then in effect, and judgment on the
award may be entered in any court having jurisdiction. Nothing in this Agreement, however, shall prevent
a Member from resort to a court of competent jurisdiction in those instances where injunctive relief may
be appropriate.
16.11 Attorney Fees. If arbitration is instituted to enforce or determine the parties' rights or
duties arising out of the terms of this Agreement, the prevailing party shall recover from the losing party
reasonable attorney fees incurred in the proceeding to the extent permitted by the arbitrator,
16.12 Effectiveness; Heirs, Successors,and Assigns. This Agreement shall be effective as
of the Effective Date, after it has been signed by the Company, and the Initial Members. Each and all of
the covenants, terms, provisions, and agreements contained in this Agreement bind and benefit the
parties to this Agreement and, to the extent permitted by this Agreement, their respective heirs, legal
representatives, successors, and assigns.
16.13 Entire Agreement. Except as provided herein, this Agreement is the entire agreement
between the parties with respect to its subject matter, and'it supersedes and terminates any and all prior
agreements between them about those matters.
16.14 Attorney Representations. The parties acknowledge that Garvey,Schubert&
Barer prepared this Agreement on behalf of and in the course of its representation of David
and Rebecca Nicoll,and that:
(a) lack Hogan has had the opportunity to seek the advice of independent
counsel; and
PAGE 3 0 - AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC
(b) Jack Hogan has engaged John Draneas to represent him and he has had an
adequate opportunity to review this Agreement and his investment in the Company
with Mr.Dr peas.
Date: A - r L"I q
David P. Nicoii
n P e_ccDate:
Refiecca Nicoll
Date: a>, /0,79
ck Hogan
DX DOCS:225605.3
PAGE 31--AMENDED AND RESTATED OPERATING AGREEMENT OF EAGLE PACIFIC INVESTORS, LLC