EXHIBIT 3.34
FORM OF
LIMITED LIABILITY COMPANY DECLARATION
OF
ABBOTT & ANDREWS REALTY, LLC
TOPS'L CLUB OF NW FLORIDA, LLC
THIS LIMITED LIABILITY COMPANY DECLARATION (the "Declaration") is made
effective as of ___________, by and among the undersigned.
RECITALS:
A. The Company was organized pursuant to the Articles of Organization
filed with, and approved by, the Florida Secretary of State on _______. Abbott
Resorts, LLC ("Member") owns all of the Membership Interests in the Company.
B. The Member makes this Declaration to regulate the affairs of the
Company, the conduct of its business, and the rights of its Member.
C. The Member intends that this Declaration shall serve as an operating
agreement within the meaning of the Florida Limited Liability Company
Actss.608.402(24).
OPERATING AGREEMENT:
NOW, THEREFORE, it is declared as follows:
1. FORMATION. The Company shall constitute a limited liability company
formed pursuant to the Florida Limited Liability Company Act (the "Act"), as
codified in Florida Statutes, Title XXXVI, ss.ss. 608.401 to 608.705. The rights
and obligations of the Member shall be set forth in the Act except as this
Declaration expressly provides otherwise.
2. NAME. The name of the Company is: _________________.
3. BUSINESS. The business of the Company shall be: to engage in and
conduct all and every kind of lawful business.
4. REGISTERED AGENT AND OFFICE; PRINCIPAL EXECUTIVE OFFICE. The
registered agent for the service of process and the registered office shall be
that individual and location reflected in the Articles of Organization. The
Managers may, from time to time, change the registered agent or office through
appropriate filings with the Florida Secretary of State. In the event the
registered agent ceases to act as such for any reason or the location of the
registered office shall change, the Managers shall promptly designate a
replacement registered agent or file a notice of change of address as the case
may be. If the Managers shall fail to designate a replacement registered agent
or change of address of the registered office within five days after the
registered agent ceased to act as
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such or the location of the registered office changed, as the case may be, the
Member of the Company may designate a replacement registered agent or file a
notice of change of address.
The Company's principal executive office shall be 530 Oak Court Drive,
Suite 360, Memphis, Tennessee 38117. The Company may locate its principal
executive office at any other place or places as the Managers may from time to
time deem advisable.
5. DURATION. The duration of the Company shall be perpetual, unless
earlier terminated in accordance with the provisions of this Declaration.
6. MEMBER AND MEMBERSHIP INTERESTS.
(A) ORIGINAL MEMBER. The original Member of the Company and its
percentage Membership Interests are listed on Schedule A attached hereto.
(B) ADDITIONAL MEMBERS. Additional members may be admitted into the
Company on such terms and conditions as may be agreed upon by the Member. Unless
named in this Declaration, or unless admitted to the Company as a substituted or
new member as provided herein, no person shall be considered a Member, and the
Company need deal only with the Member or Members so named and so admitted. The
Company shall not be required to deal with any other person by reason of an
assignment by a Member or by reason of the bankruptcy of a Member, except as
otherwise provided in this Declaration.
(C) GOVERNANCE RIGHTS. Except as otherwise provided in this
Declaration, the Articles of Organization and the Act, the Member shall have the
right to vote on or consent to any matter which is submitted to the Member for
its approval or consent.
7. SEPARATE CAPITAL ACCOUNTS.
(A) The Company shall maintain a separate Capital Account for each
Member in accordance with the Regulations promulgated under section 704(b) of
the Internal Revenue Code of 1986, as amended (the "Code").
(B) Upon the valid transfer of all or part of a Member's Membership
Interest, a proportionate amount of his Capital Account shall be transferred to
the transferee of such Membership Interest.
8. CAPITAL CONTRIBUTIONS.
(A) INITIAL CONTRIBUTIONS. The Member contributed, as its initial
Contribution to the Company, the money and/or property set forth on Schedule A
attached hereto.
(B) NO ADDITIONAL CONTRIBUTIONS. No Member will be required to make
an additional Capital Contribution to the Company.
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(C) NO THIRD PARTY RIGHTS. The provisions of this Section 8 are not
for the benefit of any creditor or other person other than a Member to whom any
debts, liabilities, or obligations are owed by, or who otherwise has any claim
against, the Company or any Member, and no creditor or other person shall obtain
any rights under this section or by reason of this section, or shall be able to
make any claim in respect of any debts, liabilities, or obligations against the
Company or any Member.
9. MEMBER NOT LIABLE FOR COMPANY LOSSES. Except as expressly provided
under the Act, no Member shall be liable under any judgment, decree, or order of
a court, or otherwise, in contract, tort or otherwise, for the acts, losses,
debts, claims, expenses, liabilities, obligations or encumbrances of or against
the Company or its property; nor shall any Member be obligated to restore a
deficit balance, if any, in the Member's Capital Account.
10. PROFITS AND LOSSES.
(A) ALLOCATION OF PROFITS AND LOSSES. The net profits and net
losses of the Company for each fiscal year shall be allocated to the Member as
follows:
(B) ALLOCATIONS TO REFLECT CONTRIBUTED PROPERTY AND CAPITAL
ACCOUNT REVALUATIONS. In accordance with section 704(c) of the Code and the
Regulations thereunder, taxable income, gain, loss and deduction with respect to
any property contributed to the capital of the Company shall, solely for Federal
income tax purposes, be allocated to the Member so as to take into account any
variation between the adjusted basis of such property for Federal income tax
purposes and its fair market value at the time of contribution to the Company.
As provided in section 1.704-1(b)(2)(iv)(f) of the Regulations, in the event
that the Capital Accounts of the Member is adjusted to reflect the revaluation
of Company property on the Company's books, then subsequent allocations of
taxable income, gain, loss and deduction with respect to such property shall
take into account any variation between the adjusted basis of such property for
Federal income tax purposes and its adjusted fair market value, as recorded on
the Company's books. Allocations under this paragraph shall be made in
accordance with section 1.704-1(b)(4)(i) of the Regulations and, consequently,
shall not be reflected in the Member's Capital Accounts.
(C) VARYING MEMBERSHIP INTERESTS DURING FISCAL YEAR. In the event
there is a change in any Member's Membership Interest in the Company during a
fiscal year, net profits and net losses shall be appropriately allocated to the
Member to take into account the varying interests of the Member so as to comply
with section 706(d) of the Code.
(D) REGULATORY ALLOCATIONS. Notwithstanding any other provision in
this Section 10 to the contrary, in order to comply with the rules set forth in
the Regulations for (i) allocations of income, gain, loss and deductions
attributable to nonrecourse liabilities, and (ii) partnership allocations where
partners are not liable to restore deficit capital accounts, the following rules
shall apply:
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(1) "Partner nonrecourse deductions" as described and defined
in section 1.704-2(i)(1) and (2) of the Regulations attributable to a
particular "partner nonrecourse liability" (as defined in section
1.704-2(b)(4); e.g., a Company liability which one or more Members have
guaranteed) shall be allocated among the Members in the ratio in which
the Members bear the economic risk of loss with respect to such
liability;
(2) Items of Company gross income and gain shall be allocated
among the Members to the extent necessary to comply with the minimum
gain chargeback rules for nonrecourse liabilities set forth in sections
1.704-2(f) and 1.704-2(i)(4) of the Regulations; and
(3) Items of Company gross income and gain shall be allocated
among the Members to the extent necessary to comply with the qualified
income offset provisions set forth in section 1.704-1(b)(2)(ii)(d) of
the Regulations, relating to unexpected deficit capital account
balances (after taking into account (i) all capital account adjustments
prescribed in section 1.704-1(b)(2)(ii)(d) of the Regulations and (ii)
each Member's share, if any, of the Company's partnership minimum gain
and partner nonrecourse minimum gain as provided in sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations).
Since the allocations set forth in this Section 10(d) (the "Regulatory
Allocations") may affect results not consistent with the manner in which the
Members intend to divide Company distributions, the Managers are authorized to
divide other allocations of net profits, net losses, and other items among the
Members so as to prevent the Regulatory Allocations from distorting the manner
in which distributions would be divided among the Members under Section 12 but
for application of the Regulatory Allocations. The Managers shall have
discretion to accomplish this result in any reasonable manner that is consistent
with section 704 of the Code and the related Regulations. The Members may agree,
by unanimous written consent, to make any election permitted by the Regulations
under section 704 of the Code that may reduce or eliminate any Regulatory
Allocation that would otherwise be required.
(E) TAX CONFORMITY; RELIANCE ON ATTORNEYS OR ACCOUNTANTS. The
determination of each Member's share of each item of income, gain, loss,
deduction or credit of the Company for any period or fiscal year shall, for
purposes of sections 702 and 704 of the Code, be made in accordance with the
allocations set forth in this Section 10. The Managers shall have no liability
to the Member or the Company if the Managers rely upon the written opinion of
tax counsel or tax accountants retained by the Company with respect to all
matters (including disputes) relating to computations and determinations
required to be made under this section or the provisions of this Declaration.
11. COMPANY PROPERTY. Title to the property and assets of the Company
may be taken and held only in the name of the Company.
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12. APPLICATION OF COMPANY FUNDS.
(A) INTERIM DISTRIBUTIONS. From time to time, the Managers may
determine in their reasonable judgment to what extent, if any, the Company's
cash on hand exceeds its current and anticipated needs for such moneys
including, without limitation, needs for operating expenses, debt service,
capital expenditures, acquisitions and reserves. To the extent such excess
exists, the Managers may make distributions from time to time to the Member, as
follows: Distributions may be in cash or property or partly in both.
(B) RESTRICTIONS. All distributions by the Company to its Member shall
be subject to the terms and provisions of ss.608.426 of the Act.
13. RIGHTS, DUTIES AND OBLIGATIONS OF THE MEMBERS.
(A) MANAGEMENT NOT AGENTS OF COMPANY. No Member, solely by virtue
of its Membership Interest in this Company, is an agent of the Company and no
Member shall have authority to bind the Company by its acts unless the Managers
have granted such Member specific, written authority to act for the Company in a
particular matter.
(B) EXTERNAL ACTIVITIES. Neither the Company nor any Member shall
have any right, by virtue of this Declaration, to share or participate in such
other investments or activities of any other Member or to the income or proceeds
derived therefrom. No Member shall incur any liability to the Company or to any
of the other Members as a result of engaging in any other business or venture.
(C) LIABILITY OF MEMBERS TO THIRD PARTIES. No Member shall be
liable under any judgment, decree, or order of a court, or in any other manner,
for any debt, obligation or liability of the Company, whether arising in
contract, tort or otherwise, or for the acts or omissions of any Member,
Manager, agent or employee of the Company.
(D) APPROVAL OF DISPOSITION OF COMPANY PROPERTY. The Member shall
have the right, by a majority vote, to approve the sale, transfer or exchange of
all, or substantially all, of the Company's assets or property (other than in
the ordinary course of the Company's business) which is to occur as part of a
single transaction or plan.
(E) APPROVAL OF MERGER OR CONSOLIDATION. The Member shall have the
right, by a majority vote, to approve the merger or consolidation of the Company
with or into any other entity.
14. ACCOUNTS AND RECORDS.
(A) BANK ACCOUNTS. The Managers may from time to time open bank
accounts in the name of the Company.
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(B) RECORDS, AUDITS AND REPORTS TO BE MAINTAINED. The Company shall
maintain the records and accounts of all operations and expenditures of the
Company. The Company shall maintain the following records at the Company's
principal executive office:
(1) A current list of the full names and last known business,
residence or mailing address of each Member and each Manager;
(2) A copy of the Certificate and all amendments thereto;
(3) A copy of the effective operating agreement and all
amendments thereto, together with any executed copies of any written
powers of attorney pursuant to which the operating agreement and any
certificate and all amendments thereto have been executed;
(4) Copies of the Company's federal, state and local income
tax returns and reports for the three (3) most recent taxable years;
(5) Copies of any financial statements of the Company for the
three (3) most recent years and financial information sufficient to
provide true and full information regarding the status of the business
and financial condition of the Company;
(6) Records of all proceedings of the Member and the Managers;
(7) Any written consents obtained from the Member and the
Managers;
(8) A statement of all Capital Contributions accepted by the
Company, sufficient to provide true and full information regarding the
amount of cash and description and statement of the agreed value of any
other property or services contributed by each Member and which each
Member has agreed to contribute in the future, and the date on which
each Member became a member; and
(9) Any other records and accounts as the Managers shall
require the Company to maintain.
(C) ACCESS TO RECORDS. The records required to be maintained by the
Company in Section 14(b), and any other records of the Company to which a Member
is entitled to obtain under the Act, are subject to inspection and copying upon
five (5) business days prior Notice from any Member, and at the expense of any
Member or the Member's agent or attorney, during regular business hours of the
Company.
(D) RECORDS OF MEMBERSHIP INTEREST. The Company shall maintain a
record of the Membership Interest held by each Member, as such Membership
Interest shall be increased and decreased from time to time in accordance with
this Declaration.
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(E) REPORTS TO MEMBERS. The Company shall provide reports to the
Member, at such time and in such manner as the Managers may determine
reasonable. The Company shall provide the Member with those information returns
required by the Code and the laws of all applicable local and foreign states.
(F) CONFLICTS OF INTEREST. No Member or Manager violates a duty or
obligation to the Company merely because the Member's or Manager's conduct
furthers such Member's or Manager's own interest. Any 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 either the transaction is fair to the Company or a majority
in interest of the disinterested Member or Manager, knowing the material facts
of the transaction and the Member's or Manager's interest therein, authorize,
approve, or ratify the transaction.
15. MEETINGS OF MEMBERS.
(A) ANNUAL MEETINGS. An annual meeting of the Member shall be held
at the principal executive office of the Company or at any place as the Managers
may from time to time elect for the purposes of electing Managers and for the
transaction of any other business authorized to be transacted by the Member.
(B) SPECIAL MEETINGS. Special meetings of the Members may be called
by the President. A special meeting of the Member may also be called by Members
entitled to vote holding not less than twenty percent (20%) of any class of
Membership Interest.
(C) PLACE OF SPECIAL MEETINGS. The Manager or Member or Members
calling a special meeting may designate any place within the county in which the
principal executive office of the Company located as the place of special
meeting. If no designation is made, the place of meeting shall be the principal
executive office of the Company.
(D) NOTICE OF MEETINGS. Except as provided in Sections 15(e) and
(i) below, Notice (as defined in Section 22(i) below) of the place, date and
hour of any meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting by or at the direction of the Manager or the Member or
Members calling the meeting, to each Member entitled to vote at such meeting.
(E) MEETING OF ALL MEMBERS. If all of the Members entitled to vote
shall meet at any time and place and consent to the holding of a special meeting
at such time and place, such special meeting shall be valid without call or
notice, and any lawful action may be taken at such special meeting.
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(F) QUORUM. Members entitled to vote holding a majority of the
Membership Interests of the Company, represented in person, by telephone or
other electronic communication or by proxy, shall constitute a quorum at any
meeting of the Members.
(G) MANNER OF ACTING. The majority vote of the Members shall be the
act of the Members, unless the vote of a greater proportion or number is
otherwise required by the Act, by the Articles of Organization or by this
Declaration. Unless otherwise expressly provided herein or required under
applicable law, Members entitled to vote who have an interest (financial or
otherwise) in the outcome of any particular matter upon which the Members vote
or consent, may vote or consent upon any such matter and their vote or consent,
as the case may be, shall be counted in the determination of whether the
requisite matter was approved by the Members.
(H) ACTION BY MEMBERS WITHOUT A MEETING. Any action permitted to be
taken at a meeting of the Members may be taken without a meeting if a written
consent describing the action taken is signed by Members holding Membership
Interests with voting power equal to the voting power that would be required to
take the same action at a meeting of the Members. The action shall be evidenced
by one or more instruments evidencing the consent, which shall be delivered to
the Secretary for inclusion in the Company's records. Action taken under this
section is effective when the required number of Members entitled to vote have
signed the consent, unless the consent specifies a different effective date.
Prompt notice of the taking of the action without a meeting by written consent
of less than all of the Members shall be given in writing to those Members who
did not consent in writing.
(I) WAIVER OF NOTICE. When Notice is required to be given to any
Member, a waiver thereof in writing signed by the Member entitled to such
Notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such Notice.
(J) PROXIES. Members who are entitled to vote may vote at any
meeting either in person or by proxy in writing, which shall be filed with the
Managers before being voted. Such proxy shall entitle the holders thereof to
vote the Membership Interest of the Member granting the proxy at any meeting or
any adjournment of such meeting, but shall not be valid after the final
adjournment thereof. No proxy shall be valid after the expiration of eleven (11)
months from the date of its execution unless the Member executing it shall have
specified therein the length of time it is to continue in force, which shall be
for some limited period.
(K) MEETINGS BY AND FORM OF COMMUNICATION. At the discretion of the
Managers, any and all Members may participate in an annual or special meeting by
the use of any means of communication by which all Members participating may
simultaneously hear each other during the meeting, to the extent such Member or
Members is entitled to attend such meeting. A Member participating in a meeting
by this means is deemed to be present in person at the meeting.
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16. MANAGERS.
(A) MANAGEMENT OF COMPANY. Except as otherwise specifically limited
herein, the Managers have the exclusive right to manage the Company's business.
Accordingly, except as otherwise specifically limited in this Declaration or
under applicable law, the Managers shall: (i) manage the affairs and business of
the Company; (ii) exercise the authority and powers granted to the Company; and
(iii) otherwise act in all other matters on behalf of the Company. No contract,
obligation or liability of any kind or type can be entered into on behalf of the
Company by any Member. The Managers shall take all actions which shall be
necessary or appropriate to accomplish the Company's purposes in accordance with
the terms of the Declaration.
(B) SPECIFIC RIGHTS AND POWERS OF MANAGERS. Subject to the approval
rights of the Members set forth in Section 16(c) below and except as otherwise
specifically limited in this Declaration or under applicable law, in addition to
the rights and powers which they may have in accordance with Section 16(a)
above, the Managers shall have all specific rights and powers required for the
management of the business of the Company including, without limitation, the
right to do the following:
(1) Incur all reasonable expenditures and pay all obligations
of the Company;
(2) Execute any and all documents or instruments of any kind
which the Managers deem necessary or appropriate to achieve the
purposes of the Company, including, without limitation, contracts,
agreements, leases, subleases, easements, deeds, notes, mortgages and
other documents of instruments of any kind or character or amendments
of any such documents or instruments;
(3) Purchase or lease equipment for Company purposes;
(4) Borrow money from individuals, banks and other lending
institutions for any Company purpose, and mortgage or pledge any or all
Company assets;
(5) Procure and maintain, at the expense of the Company and
with responsible companies, such insurance as may be available in such
amounts and covering such risks as are appropriate in the reasonable
judgment of the Managers, including insurance policies insuring the
managers against liability arising as a result of any action they may
take or fail to take in their capacity as Managers of the Company;
(6) Employ and dismiss from employment any and all Company
employees, agents, independent contractors, attorneys and accountants;
and
(7) Supervise the preparation and filing of all Company tax
returns.
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(C) APPROVAL OF MEMBER. Notwithstanding any contrary provision of
this Declaration, the Managers shall not take any of the following actions
without first obtaining the written approval of the Member which approval shall
be given or withheld at the absolute discretion of the Member:
(1) Sell or exchange all or any substantial part of the
Company's assets;
(2) Issue any additional Membership Interests.
(D) NUMBER, TENURE AND QUALIFICATIONS. The number of Managers of
the Company shall be not less than one (1). At any annual meeting or special
meeting called for that purpose, the Member may increase or decrease the number
of Managers, provided that the number thereof shall never be less than the
minimum number required by the Act. The initial Manager is hereby elected as
follows:
James S. Olin
At each annual meeting of the Member, the Member shall elect Managers to serve a
one (1) year term and until their successors are elected and qualify.
(E) REGULAR MEETINGS. Immediately after the annual election of
Managers, the Managers may meet at the same place for the purpose of
organization, the election of such officers as the Managers deem necessary or
desirable and the transaction of other business. Other regular meetings of the
Managers shall be held at such times and places as the Managers by resolution
may determine and specify, and if so determined no notice thereof need be given,
provided that unless all the Managers are present at the meeting at which said
resolution is passed, the first meeting held pursuant to said resolution shall
not be held for at least five (5) days following the date on which the
resolution is passed.
(F) SPECIAL MEETINGS. Special meetings of the Managers may be held
at any time or place whenever called by any Manager, so long as Notice (as
defined in Section 22(i) below and pursuant to Section 16(g) below) is given to
each Manager by the person calling the meeting. Notwithstanding the foregoing,
meetings may be held at any time without formal notice provided if all of the
Managers are present or those not present shall at any time waive or have waived
notice thereof.
(G) NOTICE. Except as otherwise specifically provided herein,
Notice of any special meetings shall be given at least two (2) business days
prior to the date of the meeting.
(H) MEETINGS BY ANY FORM OF COMMUNICATIONS. The Managers shall have
the power to permit any and all Managers to participate in a regular or special
meeting by, or conduct the meeting through the use of any means of communication
by which all Managers participating may simultaneously hear each other during
the meeting. A Manager participating in a meeting by this means is deemed to be
present in person at the meeting.
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(I) QUORUM AND MANNER OF ACTION. A majority of the number of
Managers shall constitute a quorum for the transaction of business. When a
quorum is present at any meeting, the affirmative vote of a majority of the
Managers present thereat is the act of the Managers, except as otherwise
provided by law or by this Declaration. The fact that a Manager has an interest
in a matter to be voted on at the meeting shall not prevent him from being
counted for purposes of a quorum.
(J) VACANCIES. Any vacancy occurring in the Managers, including
vacancies by virtue of removal for or without cause or an increase in the number
of Managers, may be filled by the Member in accordance with the right of the
Member to elect Managers pursuant to Section 16(d).
(K) RESIGNATION AND REMOVAL. A Manager may resign at any time upon
Notice to the other Managers (or, if none, to the Member). One or more of the
Managers may be removed with or without cause by a majority vote of the Member.
(L) COMMITTEES. The Managers may appoint an executive committee or
such other committees as they may deem advisable, composed of one (1) or more
Managers, and may delegate authority to such committees as is not inconsistent
with the Act. The members of such committee shall serve at the pleasure of the
Managers.
(M) INFORMAL ACTION BY MANAGERS. Any action required to be taken at
a meeting of the Managers, or any other action which may be taken at a meeting
of the Managers, may be taken without a meeting if all Managers consent to
taking such action without a meeting. If all Managers consent to taking such
action without a meeting, the affirmative vote of the majority of the Managers
is the act of the Managers. The action must be evidenced by one or more written
consents describing the action taken, signed by each Manager, indicating each
signing Manager's vote or abstention on the action, and shall be filed with the
Company records reflecting the action taken.
17. OFFICERS.
(A) NUMBER AND ELECTION. The Officers of the Company shall be
elected by the Managers. Each Officer shall have the duties specified in this
Declaration or resolutions passed by the Managers. Such other Officers as may be
deemed necessary may be elected or appointed by the Managers. The initial
Officers are the following:
James S. Olin Chief Executive Officer
Edward H. Seymour, Jr. President and Chief Operating Officer
L. Park Brady, Jr. Senior Vice President
Robert M. Launch Vice President
M. Ronald Halpern Vice President, General Counsel & Secretary
David Selberg Vice President and Treasurer
J. Scott Murphy Vice President and Controller
Karen M. Ray Assistant Secretary
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(B) TERM OF OFFICE. Each Officer shall hold office until his
successor shall have been duly elected and shall have qualified in accordance
with the terms of this Declaration or until his death or until he shall resign
or shall have been removed in the manner hereinafter provided.
(C) REMOVAL AND RESIGNATION. An Officer serves at the pleasure of
the Managers, who may remove an Officer at any time with or without cause.
Except as otherwise provided in the Act, the Managers may also eliminate any
Officer position at any time. The removal of an Officer is without prejudice to
the contractual rights of the Officer, if any. Any Officer may resign at any
time and for any reason. In the event of a vacancy in any office because of
death, resignation or removal, the Managers shall elect a successor to such
office.
(D) PRESIDENT. The President shall be the principal executive
officer of the Company and shall supervise and control all of the business and
affairs of the Company. The President shall see that all orders and resolutions
of the Member and the Managers shall be carried into effect. The President shall
sign and deliver in the name of the Company any deeds, mortgages, bonds,
contracts or other instruments pertaining to the business of the Company, except
in cases in which the authority to sign and deliver is required by law to be
exercised by another person or is expressly delegated by the Articles of
Organization or this Declaration or the Managers. The President shall perform
any other duties prescribed by the Managers. In the event that the Company has a
vacancy in the office of Secretary, any notices, documents or other matters that
otherwise are required to go to the Secretary may be delivered to the President.
(E) SECRETARY. The Secretary shall keep accurate membership records
for the Company and maintain records of and, whenever necessary, certify all
proceedings of the Member and the Managers. The Secretary shall also receive
notices required to be sent to the Secretary and to keep a record of such
notices in the records of the Company and shall perform such other duties as are
prescribed by the Managers or by the President.
(F) STANDARD OF CONDUCT. An Officer shall discharge the duties of
an office in good faith, in a manner the Officer reasonably believes to be in
the best interests of the Company and with the care and ordinarily prudent
person in a like position would exercise under similar circumstances. In
discharging his duties, an Officer is entitled to rely on information, opinions,
reports or statements, including financial statements and other financial data,
if prepared or presented by one or more Managers or Officers or employees of the
Company whom the Officer reasonably believes to be reliable and competent in the
matters presented or legal counsel, public accountants or other persons as to
matters the office reasonably believes are within the person's professional or
expert competence. An Officer is not acting in good faith if he has knowledge
concerning the matter in question that makes reliance otherwise permitted
unwarranted. An Officer is not liable for action taken as an Officer, or any
failure to take any action if he performed the duties of his office in
compliance with this section. A person exercising the principal functions of an
office or to whom some or all of the duties and powers of an office are
delegated is considered an Officer for purposes of this section.
18. INDEMNIFICATION.
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(A) INDEMNIFICATION OF MEMBER AND MANAGERS. The Company shall
indemnify any Member or Manager who was or is a party or it threatened to be
made a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals (other than an action by or in the right of the Company), by reason of
the fact that such Member or Manager is or was a Member, Manager or Officer of
the Company, or is or was serving at the request of the Company as a member,
governor, manager, director, officer, partner, employee or agent of another
limited liability company, corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such Member or Manager in connection with such claim, action, suit
or proceeding if such Member or Manager acted in good faith and in a manner such
Member or Manager reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such Member's or Manager's
conduct was unlawful. The termination of any claim, action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Member or
Manager did not act in good faith and in a manner which such Member or Manager
reasonably believed to be in or not opposed to the best interests of the
Company, or that, with respect to any criminal action or proceeding, the Member
or Manager did not have reasonable cause to believe that such Member's or
Manager's conduct was unlawful.
(B) INDEMNIFICATION IN ACTIONS BY OR IN RIGHT OF THE COMPANY. The
Company shall indemnify any Member or Manager who was or is a party or is
threatened to be made a party to any threatened, pending or completed claim,
action or suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that such person is or was a Member, Manager or
Officer of the Company, or is or was serving at the request of the Company as a
member, governor, manager, director, officer, partner, employee or agent of
another limited liability company, corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by such Member or Manager in
connection with the defense or settlement of such action or suit if such Member
or Manager acted in good faith and in a manner such Member or Manager reasonably
believed to be in or not opposed to the best interests of the Company; provided,
however, that no indemnification shall be made in respect of any claim, issue or
matter as to which such Member or Manager shall have been adjudged to be liable
for negligence or misconduct in the performance of such Member's or Manager's
duty to the Company unless and only to the extent that the court in which such
claim, action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case, such
Member or Manager is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(C) DETERMINATION OF MEETING APPLICABLE STANDARD. Any
indemnification under Sections 18(a) and (b) (unless ordered by court) shall be
made by the Company only as authorized in the specific case upon a determination
that indemnification of the Member or Manager is proper in the circumstances
because such Member or Manager has met the applicable standards of conduct set
forth in Sections 18(a) and (b). Such determination shall be made by the
affirmative vote
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of a majority of the Membership Interests held by Members entitled to vote who
are not parties to, or who have been wholly successful on, the merits or
otherwise with respect to such claims, action, suit or proceeding.
(D) PAYMENT OF EXPENSES IN ADVANCE OF DISPOSITION OF ACTION.
Expenses (including attorney's fees) incurred in defending a civil or criminal
claim, action, suit or proceeding may be paid by the Company in advance of the
final disposition of such claim, action, suit or proceeding as authorized under
the Act upon receipt of an undertaking by or on behalf of the Member or Manager
to repay such amount if and to the extent that it shall be ultimately determined
that such Member or Manager is not entitled to be indemnified by the Company as
authorized in this Section 18.
(E) NON-EXCLUSIVITY OF ARTICLE. The indemnification authorized in
and provided by this Section 18 shall not be deemed exclusive of and shall be in
addition to any other right to which those indemnified may be entitled under any
statute, rule of law, provision of certificate of formation, operating
agreement, other agreement, vote or action of the Member or Managers or
otherwise, both as to the actions in such person's official capacity and as to
actions in another capacity while holding such office, and shall continue as to
a Member or Manager who has ceased to be a Member, Manager or Officer and shall
inure to the benefit of the heirs, executors and administrators of such Member.
(F) INSURANCE. The Company may purchase and maintain insurance on
behalf of any Member or Manager who is or was a Member, Manager or Officer of
the Company, or is or was serving at the request of the Company as a member,
governor, manager, director, officer, partner, employee or agent of another
limited liability company, corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise against any liability asserted against
such Member or Manager or incurred by such Member or Manager in any such
capacity arising out of such Member's or Manager's status as such, whether or
not the Company is required or permitted to indemnify such Member or Manager
against such liability under the provisions of this Section 18 or any statute.
19. TAXES.
(A) METHODS OF ACCOUNTING AND ELECTIONS. The Managers may select
the method of accounting to be used by the Company and may approve the making of
any tax elections for the Company allowed under the Code or the tax laws of any
taxing jurisdiction.
(B) TAXES OF TAXING JURISDICTIONS. To the extent that the laws of
any taxing jurisdiction so require, the Member will submit an agreement
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 such income. If the
Member fails to provide such agreement, the Company may withhold and pay over to
such taxing jurisdiction the amount of tax, penalties and interest determined
under the laws of the taxing jurisdiction with respect to such income. Any such
payments with respect to the income of a Member shall be treated as a
14
distribution to such Member. 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, interest and penalties of
some or all of the Members on such income to the taxing jurisdiction, in which
case the Company shall inform the Member of the amount of such tax, penalties
and interest so paid.
(C) TAX MATTER PARTNER. The Managers shall designate a Member to
act as the "tax matters partner" of the Company pursuant to section 6231(a)(7)
of the Code. Any Member so designated shall take such action as may be necessary
to cause each Member (other than the Member who acts as the tax matters partner)
to become a notice partner within the meaning of section 6223 of the Code.
20. DISPOSITION OF MEMBERSHIP INTERESTS.
(A) RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTEREST. Except as
expressly provided in this Section 20, a Member may not sell, transfer, assign,
pledge, hypothecate, encumber or otherwise dispose of all or any part of his
Membership Interest in the Company without first obtaining the written consent
of remaining Members holding at least two-thirds (2/3) of the remaining
Membership Interests (i.e., excluding for this purpose the entire Membership
Interest held by the Member seeking to transfer, assign, or encumber all or part
of such Interest). This section shall not prohibit the collateral assignment or
pledge by any Member of his Membership Interest to a financial institution for
the purpose of granting a security interest therein as collateral for an
extension of credit, but no such assignee shall have the right, by virtue of
such collateral assignment, to become a new member hereunder.
(B) DEATH. Upon the death of a Member, the Membership Interest of
the deceased Member may be transferred to his spouse, his children or an entity
created for the benefit of his spouse or his children. Any transferee may be
admitted as a Member only upon compliance with the provisions of Section 20(d).
(C) SUBSTITUTE MEMBERS. The assignee or transferee of a Membership
Interest shall have the right to become a substituted member in the Company if
(1) the assignor or transferor so provides in the instrument of assignment,
transfer or sale, (2) the assignee or transferee agrees in writing to be bound
by the terms of this Declaration and the Articles of Organization, as amended to
the date thereof, (3) such consent to the admission of the assignee or
transferee as a substituted member has been obtained from the other Members as
is required by the provisions of this Section 20, and (4) the assignee or
transferee pays the reasonable costs incurred by the Company in preparing and
recording any necessary amendments to this Declaration and the Articles of
Organization.
(D) PROHIBITION ON CERTAIN TRANSFERS. Notwithstanding any provision
in this Section 20 to the contrary, no voluntary or involuntary transfer,
assignment or sale of a Membership Interest shall be effective unless and until
the Managers have been furnished with information sufficient to enable counsel
to the Company to determine that the proposed assignment, transfer or sale (i)
does not violate federal or state securities laws or regulations or would
require registration
15
thereunder, (ii) would not cause the Membership Interest to become publicly
traded, and (iii) would not result in a termination described in section 708(b)
of the Code, all such assignments, transfers or sales being expressly
prohibited.
21. DISSOLUTION AND WINDING UP.
(A) DISSOLUTION. The Company shall continue in full force and
effect in perpetuity, except that the Company shall be dissolved and its affairs
wound up prior to such date, upon the first to occur of the following events:
(1) The dissolution is approved by a majority vote of the
Member of the Company;
(2) The entry of a final decree of dissolution of the Company
by a court of competent jurisdiction.
(B) DISTRIBUTION OF ASSETS ON DISSOLUTION. Upon the dissolution of
the Company, the property of the Company shall be distributed in the following
order:
(1) To creditors, including the Member who is a creditors, to
the extent permitted by law, in satisfaction of Company liabilities
(whether by payment or the making of reasonable provisions for payment
thereof).
(2) To the Member in accordance with positive Capital Account
balances taking into account all Capital Account adjustments for the
Company's taxable year in which the Company's liquidation occurs. Such
distributions shall be in cash or property or partly in both, as
determined by the Managers.
(C) EFFECT OF DISSOLUTION. Upon dissolution, the Company shall
cease carrying on its business except to the extent necessary or appropriate for
the winding up of the affairs of the Company. The Company is not terminated upon
dissolution, but continues until the winding up of the affairs of the Company is
completed and a certificate of cancellation with respect to the Company, or the
equivalent thereof, has been filed in the office of the Florida Secretary of
State. A reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the discharge of its liabilities in order to minimize
the normal losses attendant upon such a liquidation. The Managers shall
liquidate the Company and shall have the authority to perform any and all acts
and to take any and all actions which may be necessary, appropriate, or
incidental to continue the business of the Company during the process of winding
up.
22. DEFINITIONS. As used herein, the term:
(A) "Act" shall mean the Florida Limited Liability Company Act, as
codified in Florida Statutes, Title XXXVI, ss.ss. 608.401 to 608.705.
16
(B) "Capital Account" means, with respect to any Member, the
initial Capital Contribution made by such Member --
(1) decreased by the amount of (i) any losses or deductions
allocated to such Member, (ii) any distributions of cash or other
property made to such Member and (iii) any liabilities of such Member
assumed by the Company; and
(2) increased by the amount of (i) any profits allocated to
such Member, (ii) any subsequent Capital Contributions made by such
Member and (iii) any liabilities of the Company that are assumed by
such Member.
Capital Accounts shall be maintained in accordance with the provisions of
section 1.704-(1)(b)(2)(iv) of the Regulations and, to the extent not
inconsistent therewith, generally accepted accounting principles.
(C) "Capital Contribution" means, with respect to each Member, the
aggregate amount of cash or the adjusted basis of any property that such Member
or his assignor has contributed to the Company in accordance with Section 8
above.
(D) "Code" means the Internal Revenue Code of 1986 as amended.
(E) "Entity" includes, without limitation, foreign or domestic
corporations (both non-profit and other corporations), partnerships (both
limited and general), joint ventures, limited liability companies,
unincorporated associations, business trusts, other trusts and estates.
(F) "Manager" shall mean a person elected, appointed, or otherwise
designated as a manager by the Member pursuant to Section 16.
(G) "Member" or "Members" shall mean and include those persons
identified on Schedule A who have executed this Declaration and any person who
is admitted as an additional member or as a substitute member in accordance with
this Declaration.
(H) "Membership Interest" shall mean a Member's interest in the
Company consisting of the right to share in profits and losses, the right to
share in distributions, the right to vote on matters and all other rights to
which the Member is entitled under the Act. A Member's individual right to share
in profits and losses and in distributions and to vote on matters shall be
expressed as a percentage and detailed on Schedule A hereto.
(I) "Notice" shall be in writing. Notice may be delivered in person
or sent by certified mail, return receipt requested, postage prepaid or by
recognized overnight courier providing signed receipt for delivery. Notice is
deemed given on the date of delivery. Facsimile notices may be sent as a
courtesy but will not be binding. Notice to the Company shall be addressed to
the President in care of the Company at the address of the Company's principal
executive office. Notice to a Member or Manager shall be addressed to the Member
or Manager at that Member's or
17
Manager's address as reflected in Schedule A unless the Member or Manager has
given the Company a Notice of a different address. Notice shall also be
considered given as provided in the Act.
(J) "Officer" shall mean a person elected, appointed or otherwise
designated as an Officer by the Managers pursuant to Section 17.
(K) "Regulations" means the Income Tax Regulations, including
Temporary Regulations, promulgated by the United States Treasury Department
under the Code, as the same may be amended from time to time.
(L) "Schedule A" means the schedule attached to this Declaration
and captioned "Schedule A," as in effect at the relevant time, including any
amendments, modifications or supplements made from time to time.
23. REPRESENTATIONS OF MEMBERS.
(A) IN GENERAL. As of the date hereof, each Member hereby makes
each of the representations and warranties applicable to such Member as set
forth in this section and such representations and warranties shall survive the
execution of this Declaration. Said warranties and representations shall also be
made by and shall be binding upon all members admitted as additional Members or
substitute Members at any time hereafter.
(B) POWER TO EXECUTE OPERATING AGREEMENT. Each Member hereby
represents and warrants that if such Member is an Entity, it is duly organized
or duly formed, validly existing, and in good standing under the laws of the
jurisdiction of its organization and that it has full organizational power and
authority to own its property and carry on its business as owned and carried on
at the date hereof and as contemplated hereby. Each Member hereby represents
that it has the individual or organizational power and authority to execute and
deliver this Declaration and to perform its obligations hereunder and, if such
Member is an Entity, the execution, delivery and performance of this Declaration
has been duly authorized by all necessary corporate, partnership, or
organization action. Each Member hereby represents and warrants that this
Declaration constitutes the legal, valid and binding obligation of such Member.
(C) INVESTMENT REPRESENTATIONS. The undersigned Member acknowledge
(i) that the Membership Interests evidenced by this Declaration have not been
registered under the Securities Act of 1933 or the securities laws of any state
(the "Securities Acts") because the Company is issuing these Membership
Interests in reliance upon the exemptions from the registrations requirements of
the Securities Acts providing for issuance of securities not involving a public
offering, (ii) that the Company has relied upon the fact that the Membership
Interests are to be held by each Member for investment, and (iii) that exemption
from registrations under the Securities Acts would not be available if the
Membership Interests were acquired by a Member with a view to distribution.
Accordingly, each Member hereby represents and warrants to the Company
that such Member is acquiring the Membership Interest for such Member's own
account for investment and
18
not with a view to the resale or distribution thereof. Each Member agrees not to
transfer, sell or offer for sale any of portion of such Member's Membership
Interest unless there is an effective registration, other qualification or
exemption relating thereto under the Securities Acts. With respect to any
transfer, offer or sale of a Membership Interest in reliance on an exemption,
the Company may, in its sole discretion, require the holder of such Membership
Interest to deliver to the Company an opinion of counsel, satisfactory to the
Company, that such registration or other qualification under the Securities Acts
is not required in connection with such transfer, offer or sale. Each Member
acknowledges that the Company is under no obligation to register such Member's
Membership Interest or to assist such Member in complying with any exemption
from registration under the Securities Acts if such Member should at a later
date wish to dispose of the Membership Interest. Furthermore, each Member
realizes that such Membership Interest is unlikely to qualify for disposition
under Rule 144 of the Securities and Exchange Commission unless such Member is
not an "Affiliate" of the Company and the Membership Interest has been
beneficially owned and fully paid by such Member for at least three years.
Prior to acquiring a Membership Interest in the Company, each Member
has reviewed the Company's Private Placement Memorandum and has made an
investigation of the Company and its business and has made available to each
such Member all information with respect thereto which such Member needed to
make an informed decision to acquire the Membership Interest. Each Member
considers himself or itself to be a person possessing experience and
sophistication as an investor which are adequate for the evaluation of the
merits and risks of such Member's investment in the Membership Interest.
24. SEPARABILITY. The invalidity or unenforceability of any provision
in this Declaration shall not affect the other provisions hereof and this
Declaration shall be construed in all respect as if such invalid or
unenforceable provision were omitted.
25. INTERPRETATION. This Declaration shall be interpreted and construed
in accordance with the laws of the State of Florida without giving effect to its
choice of law or conflict of law provisions. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular,
or plural as the identity of the person or persons referred to may require. The
captions of sections of this Declaration have been inserted as a matter of
convenience only and shall not control or affect the meaning or construction of
any of the terms or provisions hereof.
26. AMENDMENTS. This Declaration may be amended from time to time only
by a written instrument adopted by the Member. No Member shall have any vested
rights in this Declaration which may not be modified through an amendment
hereto.
27. COUNTERPARTS; EFFECTIVE DATE. This Declaration may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which shall constitute one agreement. The signature of any party to a
counterpart shall be deemed to be a signature to, and may be appended to, any
other counterpart. This Declaration is dated and shall be effective among the
parties as of the date first above written.
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28. BINDING EFFECT. This Declaration shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors,
assigns, and legal representatives.
29. ENTIRE AGREEMENT. The Member and the other parties hereto, if any,
agree that all understandings and agreements heretofore made between them are
merged in this Declaration, which alone fully and completely expresses their
agreement with respect to the subject matter hereof. There are no promises,
agreements, conditions, understandings, warranties, or representations, oral or
written, express or implied, among the parties hereto, other than as set forth
in this Declaration and the Articles. All prior agreements among the parties are
superseded by this Declaration, which integrates all promises, agreements,
conditions, and understandings among the parties with respect to the Company and
its property.
IN WITNESS WHEREOF, the Member has executed this Declaration effective
as of the date first above written.
MEMBER:
ABBOTT RESORTS, LLC
By: /s/ James S. Olin
-----------------
James S. Olin, Chief Executive Officer
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SCHEDULE A
MEMBER CAPITAL CONTRIBUTION MEMBERSHIP INTEREST
------ -------------------- -------------------
Abbott Resorts, LLC As filed on 2002 tax return 100%
A-1