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HomeMy WebLinkAboutPA2022-0215_20221005_Operating Agreement OPERATING AGREEMENT OF VILLAS TERRA d’ SOLE, LLC A Manager-Managed, Single-Member Texas Limited Liability Company That Is Managed By A Single Manager And Taxable As A Disregarded Entity Dated effective as of June 14, 2022 PA2022-0215 OPERATING AGREEMENT OF VILLAS TERRA d’ SOLE, LLC This Operating Agreement (this “Agreement”), dated effective as of June 14, 2022 (the “Effective Date”), is hereby adopted by Batista Holdings, LLC a Nebraska limited liability company (the “Member”), in the Member’s capacity as the sole member of Villas Terra d’ Sole, LLC (the “Company”), a limited liability company formed and existing under the laws of the State of Texas. Article 1 Preliminary Provisions 1.1 Capitalized Words and Phrases. Unless otherwise indicated, all capitalized words and phrases used in this Agreement shall have the meanings assigned to such words or phrases in Article 9. Capitalized words and phrases that appear in this Agreement but are not defined in Article 9 shall have the meanings assigned to such words or phrases by the Act, or, if not defined therein, the meanings assigned to such words and phrases when used in common language, taking into consideration the context in which the words or phrases appear in this Agreement. 1.2 Formation. On the Filing Date, the Member caused the Certificate of Formation to be filed with the Secretary of State, and on that date the Company was formed as a limited liability company under the Act. 1.3 Name; Purposes and Powers. The Company’s name shall be as set forth in the Certificate of Formation. The purposes for which the Company is organized shall be the transaction of any or all lawful business for which limited liability companies may be organized under the Act. The Company shall have all powers granted under the Act. 1. 4 Designated Office, Registered Agent, and Mailing Address. The Company’s Designated Office, registered agent, and the mailing address of the Company’s registered agent shall be as set forth in the Certificate of Formation. The Member may, from time to time, change the Designated Office, registered agent, or the mailing address of the Company’s registered agent through appropriate filings with the Secretary of State as required by the Act. 1.5 Duration. The Company’s duration shall be indefinite and shall terminate only as set forth in Article 7. 1. 6 Management; Delegation of Management Authority. The Company shall be managed by one (1) Manager in accordance with the provisions of Article 4. The Manager may, from time to time, delegate the Manager’s management rights, power, and authority to one (1) or more officers or agents and may, from time to time thereafter, amend or terminate any such delegation. The Manager shall confirm the nature and scope of each such delegation, and of each such amendment and termination to such delegation, in a writing signed by the Manager and attach such written delegation to this Agreement as an exhibit. 1.7 Limited Liability of the Member and Manager. Neither the Member nor the Manager shall have any personal liability to any third party for any debt, obligation, or liability of the Company solely by reason of being a Member or Manager of the Company. PA2022-0215 1. 8 Requirement to Amend Agreement if the Company has Multiple Members. If, at any time, the Company has two (2) or more members, the members shall, with reasonable promptness, make all amendments to this Agreement that are necessary to reflect their agreement as members of a multi-member limited liability company, including amendments concerning the allocation of the Company’s Profits and Losses, the allocation of Company management rights, and other appropriate matters. In the absence of these amendments, the Company, upon becoming a multi-member limited liability company, shall be governed by the default provisions of the Act applicable to multi-member limited liability companies. 1.9 Taxation of the Company and Member. For federal income tax purposes, the Company shall be a disregarded entity within the meaning of United States Treasury Regulation § 301.7701-2(c)(2), and its Profits and Losses shall be deemed for federal tax purposes to be those of the Member. 1.10 Annual Accounting Period. The Company’s annual accounting period for financial and tax purposes shall be the calendar year. 1.11 Effect of Act. The business and internal affairs of the Company shall be governed by this Agreement and the Certificate of Formation; provided, however, the Act shall govern as to any non-waivable provisions set forth in the Act and as to matters on which this Agreement is silent. 1.12 Relation of Agreement to Certificate of Formation. If there is any conflict between this Agreement and the Certificate of Formation, the Certificate of Formation shall prevail. The Member has reviewed and hereby approves and accepts the Certificate of Formation. 1.13 The Member’s Right to Reimbursement of Expenses. If the Member reasonably incurs an expense on behalf of the Company in connection with the Company’s formation or otherwise and reasonably substantiates such expense to the Company, the Company shall reimburse the Member for such expense as promptly as reasonably possible after receiving such substantiation. 1.14 Entity Status of the Company; Ownership of the Company’s Assets. The Company shall be a legal entity separate and distinct from the Member. The Company shall own all of its assets in its own name, and the Member shall not have a direct interest in those assets. Article 2 The Member’s Contribution to the Company 2.1 The Member. The name, present mailing address, and email address of the Member are specified in the attached Exhibit A. The Member shall promptly revise Exhibit A to reflect any subsequent changes thereto. The Manager may amend Exhibit A to reflect any subsequent changes thereto. (a) Class A Units. The Class A Units issued to the Class A Members, as reflected in the attached Exhibit A, shall have full voting rights. Each Class A Unit shall equal one (1) vote on matters with respect to which the Members are entitled to vote. 2 PA2022-0215 (b) Class B Units. The Class B Units issued to the Class B Members, as reflected in the attached Exhibit A, shall be nonvoting, and the Class B Members holding Class B Units shall not be entitled to vote on any matter submitted to a vote of the Members, either individually or as a class, unless otherwise specifically provided herein or required by applicable law, in which case each Class B Unit shall equal one (1) vote only on such matters with respect to which the Class B Units are entitled to vote. 2.2 No Duty to Make Additional Contributions. The Member shall have no duty to make any Contribution to the Company except as provided in Section 2.1, and no cash or non-cash property of the Member shall be deemed to be a Contribution to the Company unless specifically approved as such by the Member. Article 3 Allocations and Distributions 3.1 The Member’s Sole Right to Allocations and Distributions. Only the Member shall be entitled to receive Allocations and Distributions. 3.2 Distributions by the Company. Subject to Sections 3.3 and 3.4, the Company shall make Distributions to the Member, at such times, and in such amounts, as the Member may determine in the Member’s discretion. 3.3 Tax Distributions. Subject to Section 3.4, the Company shall make Distributions to the Member at such times and in such amounts as to enable the Member to pay the Member’s taxes on the Company’s taxable income on time and in full. 3.4 Wrongful Distributions. The Company shall make no Distribution to the Member to the extent that the Distribution would be a wrongful or unlawful distribution under the Act or other applicable law. Article 4 Company Management 4.1 Decision-Making. The Company shall be managed by one (1) Manager, to be elected, from time to time, by the Member. The Manager shall have sole power and authority to conduct the affairs of the Company, except to the extent management powers are expressly delegated to other officers of the Company under Section 1.6 or reserved to the Member by this Agreement. The initial Manager shall be Juan Batista. The number of Managers may be amended from time to time in the Member’s discretion, in which case this Agreement shall be amended as deemed necessary by the Member to reflect that the Company has multiple Managers. The Manager shall serve until the Manager’s death, resignation, or removal, with or without cause, by the Member. Upon the death, resignation, or removal of the Manager, a successor Manager shall be appointed by the Member. 4.2 Specific Authority of the Manager. In addition to, but not in limitation of, any rights and powers conferred by law or other provisions of this Agreement, and except as limited, restricted, or prohibited by the express provisions of this Agreement, the Manager is hereby authorized, for and on behalf of the Company, to engage in any of the following transactions or take any of the following actions: 3 PA2022-0215 (a) Acquisition of Property. Acquire property deemed by the Manager to be consistent with the business purpose of the Company; (b) Sale of Property. Sell, transfer, or otherwise dispose of any property owned by the Company in the ordinary course of business; (c) Financing Matters. Borrow funds, lease equipment, or enter into any other form of financing-related obligation on behalf of the Company; (d) Pledge of Assets. Encumber or pledge the Company’s assets for borrowed funds, indebtedness, or obligations of the Company; (e) Employment of Professionals. Employ accountants, legal counsel, and other experts to perform services for the Company and to compensate them from the Company’s funds; (f) Maintenance of Records. Maintain all books and records of the Company; (g) Execution of Documents. Make and execute any and all agreements, contracts, documents, certifications, and instruments necessary or convenient in connection with the business of the Company; (h) Hiring of Employees. Hire such employees of the Company as deemed appropriate by the Manager in connection with the business of the Company; and (i) Company Matters. Take any and all action deemed appropriate by the Manager in connection with the business of the Company. 4.3 Certain Limitations on the Powers of the Manager. In addition to any other actions or decisions which are expressly reserved to the Member as set forth in this Agreement, and notwithstanding anything set forth in this Agreement to the contrary, neither the Manager nor any officers or any other agents of the Company shall have the right or power to cause the Company to take any of the following actions without the prior written consent of the Member: (a) Sale of Assets. Whether the Company shall sell all, or substantially all, of its assets outside the ordinary course of the Company’s business; (b) Merger. Whether the Company shall merge with one or more other entities and the terms of any such merger; (c) Conversion. Whether the Company shall change its business organization form and the terms of any such change; (d) Bankruptcy. Whether the Company shall (i) file a petition in bankruptcy or petition to take advantage of any insolvency act; (ii) make an assignment for the benefit of the Company’s creditors; (iii) commence a proceeding for the appointment of a receiver, trustee, liquidator, or conservator of the Company or of the whole or any substantial part of its property; or (iv) file a petition or answer seeking reorganization or arrangement or similar relief under the Federal bankruptcy laws or any other applicable law or statute of the United States or any State; or 4 PA2022-0215 (e) Related Party Matters. Whether the Company shall enter into any transaction with the Manager or any Affiliate of the Manager. 4.4 Formalities of Commencing Business. Before or promptly after the Company begins its business activities, the Manager shall, to the extent required by law or requested by the Member, obtain for the Company a federal tax identification number and any necessary state tax identification numbers and open any necessary bank accounts for the Company. 4.5 Power to Execute Documents and Bind the Company. Except as otherwise provided in this Agreement or to the extent of any delegation of the Manager’s management authority under Section 1.6, the Manager, in the Manager’s discretion, shall have the exclusive right, power, and authority to sign contracts on behalf of the Company and otherwise to bind the Company with third parties. 4.6 No Duty to Record Decisions. Except as otherwise provided in this Agreement, neither the Member nor the Manager shall be obligated to record, in writing or otherwise, any decision relating to the business or internal affairs of the Company. No failure to make such a record shall impair the validity of any such decision. 4.7 Compensation and Other Benefits. The Company shall provide compensation and other benefits to the Manager for the Manager’s services to and for the Company as, from time to time, determined by the Member in the Member’s discretion. 4.8 Fiduciary Duties and Liabilities of the Member. The Member shall have no fiduciary duties or liabilities to the Company or to any other Person. So long as the Member is the Manager, neither the Member nor the Manager shall have any fiduciary duties or liabilities to the Company or to any other Person in performing the management duties under this Agreement. 4.9 Fiduciary Duties and Liabilities of a Non-Member Manager. In the event that the Member is not the Manager: (a) The Manager shall perform the Manager’s duties in good faith, in a manner the Manager reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances; and (b) The Manager shall not be liable to the Company or to the Member for any loss or damage sustained by the Company or the Member, unless the loss or damage shall have been the result of fraud, gross negligence, willful misconduct, breach of this Agreement, or a wrongful taking by the Manager. 4.10 Duty of the Manager to Inform the Member. The Manager shall inform the Member on a reasonably current basis about material developments in the business of the Company. 4.11 No Exclusive Duty to the Company. The Member, in the event that the Member is serving as the Manager, shall not be required to manage the Company on an exclusive basis and may have other businesses or ventures and may engage in other business activities in addition to those relating to the Company. The Member shall not incur any liability to the Company as a result of engaging in any other businesses, ventures, or activities. The Company 5 PA2022-0215 shall not have any right, by virtue of this Agreement, or the relationship created hereby, in or to such other businesses, ventures, or activities or to the income or proceeds derived therefrom. 4.12 Other Business. Subject to the provisions of any employment agreement between the Manager and the Company, the Manager may engage in or possess an interest in other business ventures of every kind and description, independently or with others. Neither the Company nor the Member shall have any rights in or to such independent ventures of the Manager or the income or profits therefrom by virtue of this Agreement. 4.13 Indemnification. The Company may, in the Member’s discretion: (a) Indemnify a member, manager, or former member or manager of the Company against expenses actually and reasonably incurred in connection with the defense of a civil or criminal action, suit, or proceeding in which such Person is made a party by reason of being or having been a member or manager except in matters as to which such Person is adjudged in the action, suit, or proceeding to be liable for negligence or misconduct in the performance of duty; and (b) Make any other indemnification that is authorized by a resolution adopted by the Member. The indemnification set forth in this Section shall in no event cause the Member to incur any personal liability beyond the Member’s total capital contributions, nor shall it result in any liability of the Member to any third party. The provisions of this Section are for the benefit of the Member and the Member’s heirs, successors, assigns, administrators, and personal representatives. Article 5 Transfers and Pledges of Membership Rights 5.1 Transfers—In General. The Member, in the Member’s discretion, may transfer (whether by sale, gift, bequest, or otherwise) any Units to any Person at any time. The Member may make any such transfer under any terms and conditions that the Member deems appropriate. 5.2 Transfer upon the Member’s Death or Dissolution. In the event that the Member is an individual, upon the death of the Member, the Member’s Units shall immediately and automatically pass in accordance with the Member’s last will and testament or other testamentary instruments, or, in the absence of any such instruments, under applicable laws of descent and distribution. In the event that the Member is an entity, upon the dissolution of the Member, its Units shall immediately and automatically pass in accordance with the Member’s plan of dissolution or under other applicable law. 5.3 Events of Dissociation of the Member. The Member shall cease to be a member of the Company only upon the Member’s death (if the Member is an individual), the termination of the Member’s existence as a legal entity (if the Member is an entity), or the transfer of all of the Member’s Units. The Member shall not cease to be a member for any other reason, including without limitation, the Member’s bankruptcy. 6 PA2022-0215 5.4 Admission of Additional Members. Whether additional members shall be admitted as members of the Company, and the terms of any such admission, shall be determined by the Member, in the Member’s discretion. 5.5 Pledges. The Member shall have discretion to pledge all or any part of the Member’s Units to any Person at any time as collateral for any debt of the Member. The Member may make any such pledge under any terms and conditions that the Member deems appropriate. Article 6 Company Records and Information 6.1 Records and Information Required by the Act. The Company shall compile and maintain at its Designated Office all records and information that the Act requires it to compile and maintain. 6.2 Other Records. The Company may maintain such other records and books of account concerning its business as deemed necessary by the Member, in the Member’s discretion. Article 7 Dissolution of the Company 7.1 Events Requiring Dissolution. The Company shall be terminated and dissolved upon the earlier to occur of the following: (a) The Member’s decision to terminate and dissolve the Company; or (b) Judicial dissolution of the Company pursuant to the Act. As soon as possible following the occurrence of either of the events provided for in Subsections ((a)) and ((b)) above, pursuant to which the Company will not be continued, the Company shall prepare and execute a statement of dissolution in such form as shall be prescribed by the Secretary of State and the same shall be delivered to that office, or as otherwise required by law. 7.2 Winding Up and Distribution. Upon the occurrence of any event causing the termination and dissolution of the Company, the Manager shall take full account of the Company’s property and liabilities, and endeavor to liquidate the property promptly while maximizing the proceeds realizable therefrom. The proceeds realized from disposition of the Company’s property shall be applied and distributed in the following order: (a) To the payment of creditors of the Company (other than the Member) in the order of priority as provided by law, excluding creditors whose obligations will be assumed or otherwise transferred on liquidation of the Company; (b) To the payment of the Member if a creditor of the Company; (c) To the setting up of reserves which the Manager deems reasonably necessary for absolute and contingent liabilities of the Company; and 7 PA2022-0215 (d) To the Member. Article 8 Miscellaneous Provisions 8.1 Term and Termination. The term of this Agreement shall begin on the Effective Date and shall end upon the earlier of: (a) The date on which the Company ceases to exist under this Agreement or under other applicable law; or (b) The date which the Member determines to be the date of termination of this Agreement. 8.2 Binding Effect. This Agreement shall be binding on, and inure to the benefit of, the Member and the Member’s heirs, personal representatives, successors, and assigns, as applicable. 8.3 Amendments. No amendment of this Agreement or of the Certificate of Formation shall be valid unless it is set forth in a writing signed by the Member. 8.4 Governing Law. This Agreement shall be governed by and construed in compliance with the laws of the State of Texas without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Nebraska or of any other jurisdiction) that would result in the application of the laws of any jurisdiction except those of the State of Texas to the provisions hereof. 8.5 Rights of Creditors and Third Parties Under Agreement. The provisions of this Agreement shall be deemed to be for the exclusive benefit of the Member and any Person that becomes the Member’s successor and assign in accordance with this Agreement. None of the provisions of this Agreement shall be deemed to be for the benefit of, or enforceable by, any third party, including without limitation, any creditor of the Company. 8.6 Headings or Captions. Headings or captions of Articles, Sections, or Subsections are inserted as a matter of convenience only, and do not define, limit, or extend the scope of interest of this Agreement or any provision hereof. 8.7 Construction. “Including” means “including without limitation” and does not limit the preceding words or terms. The words “or” and “nor” are inclusive and include “and”. The words and phrases used in the singular shall include the plural and vice versa. Each word of gender shall include each other word of gender as the context may require. References to “Articles”, “Sections”, “Subsections”, or “Exhibits” shall mean Articles, Sections, Subsections, or Exhibits of this Agreement, unless otherwise expressly indicated. 8.8 Statutes and Regulations. Unless the context otherwise requires, reference to any federal, state, local, or foreign law, constitution, code, statute, or ordinance shall be deemed to include all rules and regulations promulgated thereunder (by any governmental authority or otherwise), any amendments thereto, and any successor thereto. 8 PA2022-0215 8.9 Incorporation of Certificate of Formation and Exhibits. The Certificate of Formation and all exhibits referred to in this Agreement are hereby incorporated into the Agreement and made integral parts of it. 8.10 Severability of Provisions. Each provision of this Agreement shall be considered severable, and if any provision or provisions of this Agreement are determined to be invalid and contrary to any existing or future law for any reason, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid. Article 9 Definitions Unless the context requires otherwise, the following words and phrases, where they appear capitalized throughout this Agreement, shall have the meanings set forth below: 9.1 Act. “Act” the Texas Business Organizations Code §§ 101.001 through 101.552, as such sections now exist or may hereafter be amended. 9.2 Affiliate. “Affiliate” of any Person means any Person, directly or indirectly controlling, controlled by, or under common control with such Person or related by blood, marriage, or adoption to such Person. 9.3 Allocation. “Allocation” means an accrual of Profits and Losses of the Company that is allocated to the Member on the books of the Company in accordance with this Agreement. 9.4 Article. “Article” means an article of this Agreement unless otherwise indicated. 9.5 Certificate of Formation. “Certificate of Formation” means the Company’s Certificate of Formation, as properly adopted and amended from time to time by the Member and filed with the Secretary of State. 9.6 Class A Members. “Class A Members” means any Member holding Class A Units as reflected on Exhibit A, as updated from time to time. 9.7 Class A Units. “Class A Units” means the Units held by all Class A Members as reflected on Exhibit A, as updated from time to time. 9.8 Class B Members. “Class B Members” means any Member holding Class B Units as reflected on Exhibit A, as updated from time to time. 9.9 Class B Units. “Class B Units” means the Units held by all Class B Members as reflected on Exhibit A, as updated from time to time. 9.10 Contribution. “Contribution” means any of the following types of property that the Member contributes to the Company in exchange for Units and for the Member’s other Membership Rights: (a) cash; (b) non-cash property; (c) services rendered; or (d) a promissory note or other enforceable obligation to contribute cash or property or to perform services. 9.11 Designated Office. “Designated Office” means the Company’s designated office as set forth in the Certificate of Formation. 9 PA2022-0215 9.12 Distribution. “Distribution” means a transfer of the Company’s cash or other assets from the Company to the Member by check, bill of sale, assignment, or otherwise, except compensatory payments, loan payments, and reimbursements of expenses to a Member under Section 1.13. 9.13 Filing Date. “Filing Date” means November 30, 2021. 9.14 LLC Interest. “LLC Interest” means the right of the Member to receive Allocations and Distributions. 9.15 Losses. “Losses” means the net loss of the Company for a given reporting period as determined in accordance with generally accepted accounting principles, as in effect from time to time, and as modified by reasonable and customary accounting practices and policies followed by the Company on a reasonably consistent basis. 9.16 Manager. “Manager” means the Person appointed pursuant to the provisions of Section 4.1 to serve as the manager. 9.17 Membership Rights. “Membership Rights” means the totality of the Member’s rights as a member of the Company, including the Member’s economic rights and the Member’s voting rights, agency rights, and other management rights, as applicable. 9.18 Person. “Person” means an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an estate, an unincorporated organization, or an association, or any other entity or a government or any department or agency thereof. 9.19 Profits. “Profits” means the net income of the Company for a given reporting period as determined in accordance with generally accepted accounting principles, as in effect from time to time, and as modified by reasonable and customary accounting practices and policies followed by the Company on a reasonably consistent basis. 9.20 Secretary of State. “Secretary of State” means the office of the Secretary of State of the State of Texas. 9.21 Section. “Section” means a section of this Agreement unless otherwise indicated. 9.22 Subsection. “Subsection” means a part of a Section. 9.23 Unit. “Unit” means the units of measurement used to reflect the Member’s Membership Rights as reflected on Exhibit A, as updated from time to time. [Remainder of this Page Intentionally Left Blank. Signature Page Follows.] 10 PA2022-0215 IN WITNESS WHEREOF, the undersigned Member has executed this Agreement as of the day and year first above written. Batista Holdings, LLC, a Nebraska limited liability company, Member By: ____________________________ Name: Juan Batista Title: Manager Villas Terra d’ Sole, LLC Operating Agreement Signature Page PA2022-0215 EXHIBIT A SCHEDULE OF MEMBER, UNITS & PERCENTAGE INTEREST Member Name, Address and Email Address Class A Units Class B Units Percentage Interest Date Acquired Batista Holdings, LLC 10 990 100% 06/14/2022 i PA2022-0215