EXHIBIT 3.81
OPERATING AGREEMENT
OF
RESORT RENTAL VACATIONS, LLC
THIS OPERATING AGREEMENT is entered effective the 5th day of August,
2002, by and among the Members whose signatures appear on the signature page.
ARTICLE I
DEFINITIONS
The following terms used in this Operating Agreement shall have the
following meanings (unless otherwise expressly provided herein):
"Act" shall mean the Tennessee Limited Liability Company Act, as
amended from time to time.
"Capital Account" means, with respect to any Member, the Capital
Account maintained for such Member in accordance with the following provisions:
(A) To each Member's Capital Account there shall be credited such member's
Capital Contributions, such Member's distributive share of Profits and
any items in the nature of income or gain which are allocated to such
account herein, and the amount of any Company liabilities assumed by
such Member or which are secured by any Company property distributed to
such Member.
(B) To each Member's Capital Account there shall be debited the amount of
cash and the Gross Asset Value of any Company property distributed to
such Member pursuant to any provision of this Operating Agreement, such
Member's distributive share of Losses and any items in the nature of
expenses or losses which are allocated to such account herein, and the
amount of any liabilities of such Member assumed by the Company or
which are secured by any property contributed by such Member to the
Company.
(C) In the event all or a portion of an interest in the Company is
transferred in accordance with the terms of this Operating Agreement,
the transferee shall succeed to the Capital Account of the transferor
to the extent it relates to the transferred interest.
(D) In determining the amount of any liability for purposes of this
Operating agreement, there shall be taken into account Code section 752
(c) and any other applicable provisions of the Code and its
regulations.
The foregoing provisions and the other provisions of this Operating Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Treasury Regulation section 1.704-1(b), and shall be interpreted and applied in
a manner consistent with such regulations.
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"Capital Contributions" means, with respect to any Member, the amount
of money and the initial Gross Asset Value of any property (other than money)
contributed to the Company by such Member. "Initial Capital Contribution" shall
mean the initial contribution to the capital of the Company set forth in this
Operating Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Company" shall refer to Resort Rental Vacations, LLC.
"Depreciation" means, for each Fiscal year, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable with
respect to an asset for such Fiscal Year, except that if the Gross Asset Value
of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such Fiscal year, Depreciation shall be an amount which bears
the same ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal year
bears to such beginning adjusted tax basis; provided, however, that if the
adjusted basis for federal income tax purposes of an asset at the beginning of
such Fiscal Year is zero, Depreciation shall be determined with reference to
such beginning Gross Asset Value using any reasonable method selected by the
President of the Company.
"Financial Interest" shall mean a Member's or Financial Interest
Owner's share of one or more of the Company's Profits, Losses and distributions
of the Company's assets pursuant to this Operating Agreement and the Act, but
shall not include a Member's Governance Rights. "Financial Interest Owner" shall
mean a person other than a Member who owns a Financial Interest in the Company.
"Fiscal Year" means (i) the period commencing on the effective date of
this Operating Agreement and ending on December 31, (ii) any subsequent twelve
(12) month period commencing on January 1 and ending on December 31, or (iii)
any portion of the period described in clause (ii) for which the Company is
required to allocate Profits, Losses, and other items of Company income, gain,
loss or deduction pursuant to this Operating Agreement.
"Governance Interest" shall mean a Member's governance rights in the
Company, including any right to participate in the management or affairs of the
Company, including, the right to vote on, consent to or otherwise participate in
any decision of the Members or Managers.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(A) The initial Gross Asset Value of any asset contributed by a
Member to the Company shall be the gross fair market value of such
asset, as determined by the contributing Member and all of the other
Members;
(B) The Gross Asset Values of all Company assets shall be adjusted
to equal their respective gross fair market values from time to time as
required by Treasury Regulation section 1.704-1 (b).
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"Majority Interest" shall mean the Membership Interests of one or more
Members which taken together exceed fifty percent (50%) of the aggregate of all
Membership Interests.
"Manager" shall mean one or more managers appointed from time to time
by the Members. References to the manager in the singular or as him, her, it,
itself or other like references shall also, where the context so requires, be
deemed to include the plural or the masculine or feminine reference, as the case
may be.
"Member" shall mean each party who acquires a Membership Interest
pursuant to this Operating Agreement and executes a counterpart of this
Operating Agreement as a Member, and each of the parties who may hereafter
become members. If a Member is a Member immediately prior to the purchase or
other acquisition by such person of an Financial Interest, such person shall
have all the rights of a Member with respect to such purchased or otherwise
acquired Membership Interest or Financial Interest, as the case may be.
"Membership Interest" shall mean a Member's entire interest in the
Company including such Member's Governance Interest, Financial Interest and such
other rights and privileges that the Member may enjoy by being a Member,
provided, however, that in making a determination of the Members entitled to
vote on any matter, "Membership Interest" shall mean a Member's Governance
Interest in the company.
"Operating Agreement" shall mean this Operating Agreement as originally
executed and as amended from time to time.
"Profits" and "Losses" means, for each Fiscal Year, an amount equal to
the Company's taxable income or loss for such year or period, determined in
accordance with Code section 703 (a) (for this purpose, all items of income,
gain, loss, or deduction required to be stated separately pursuant to Code
section 703 (a) (1) shall be included in table income or loss), with the
following adjustments:
(A) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Profits and
Losses pursuant to this definition shall be added to such taxable
income or loss;
(B) Any expenditures of the company described in Code section 705
(a) (2) (B) or treated as Code section 705 (a) (2) (B) expenditures
pursuant to Treasury Regulation section 1 .704-1 (b) (2) (iv) (i), and
not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be subtracted from such taxable
income or loss;
(C) In the event the Gross Asset Value of any Company asset is
adjusted, the amount of such adjustment shall be taken into account as
gain or loss from the disposition of such asset for purposes of
computing Profits and 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
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reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs
from its Gross Asset Value;
(E) In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation for such fiscal
year or other period, computed in accordance with the definition of
"Depreciation" in this Section; and
(F) To the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code section 734 (b) or Code section 743 (b)
is required pursuant to Treasury Regulation section 1 .704-1 (b) (2)
(iv) (m) (4) to be taken into account in determining Capital Accounts
as a result of a distribution other than in liquidation of a Member's
interest in the Company, the amount of such adjustment shall be treated
as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases the basis of the asset) from the
disposition of the asset and shall be taken into account for purposes
of computing Profits or Losses.
ARTICLE II
FORMATION OF COMPANY
2.1 Formation. The Company shall be, or has been, organized as a Tennessee
limited liability company by executing and delivering a Certificate of
Organization to the Tennessee Secretary of State in accordance with and
pursuant to the Act.
2.2 Term. The term of the Company shall be perpetual, unless the Company is
earlier dissolved in accordance with either the provisions of this
Operating Agreement or the Act.
ARTICLE III
BUSINESS OF COMPANY
The business of the Company shall be to conduct any lawful business
whatsoever that may be conducted by limited liability companies pursuant to the
Act.
ARTICLE IV
MATTERS RELATING TO MEMBERS
4.1 General Powers and Qualifications. Except as otherwise provided under
the Act or under this Operating Agreement, all powers of the Company
shall be exercised under the authority of, and the business and affairs
of the Company shall be managed under the direction of, the Members.
4.2 Member's Names and Addresses. The name, address and initial percentage
interest of ownership of each of the Members are as follows:
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NAME & ADDRESS PERCENTAGE INTEREST
ResortQuest International, Inc. 100%
530 Oak Court Drive, Suite 360
Memphis, Tennessee 38117
4.3 Priority and Return of Capital. Except as otherwise provided herein, no
Member or Financial Interest Owner shall have priority over any other
Member or Financial Interest Owner, either as to the return of Capital
Contributions or as to Profits, Losses or Distributions; provided that
this Section shall not apply to a loan (as distinguished from Capital
Contributions) which a Member has made to the Company.
4.4 Admission of Additional Members. Additional members may be admitted to
the Company with the written consent of a Majority Interest of the
existing Members.
ARTICLE V
MEETINGS OF MEMBERS
5.1 Meetings. The annual meeting of the Members shall be held on the first
day in October of every year or at such other time as shall be
determined by resolution of the Members, commencing with the year
following organization of the Company, for the purpose of the
transaction of such business as may come before the meeting. Special
meetings of the Members for any purpose or purposes may be called by
any Member or Members holding a Majority Interest. The members may
designate any place, either within or outside the State of Tennessee,
as the place of meeting for any meeting of the Members. If resignation
is made, or if a special meeting be otherwise called, the place of
meeting shall be the principal executive office of the Company. Unless
expressly permitted by this Operating Agreement, no action shall be
taken pursuant to any vote of the Members unless approved by a Majority
Interest.
5.2 Action by Members Without a Meeting. Action which is required or
permitted to be taken at a meeting of the Members may be taken without
such a meeting if a Majority Interest of the members consent to taking
such action without a meeting. Such consent (or counterpart(s) thereof)
shall describe the action taken, be in writing, be signed by the
members, indicate each signing Member's vote and be, included in the
minutes or Company records. Actions taken under this Section are
effective when such Members entitled to vote have signed the consent,
unless the consent specifies a different effective date. The record
date for determining Members entitled to take action without a meeting
shall be the date the first Member signs a written consent.
5.3 Waiver of Notice. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to
such notice, whether before, at, or after the time stated therein,
shall be equivalent to the giving of such notice.
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ARTICLE VI
MANAGERS
6.1 General. Except as otherwise provided under the Act or under this
Operating Agreement, all powers of the Company shall be exercised by
the Managers at the direction and under the authority of the Members.
The Chief Manager of the Company shall be designated and referred to as
the President of the Company.
6.2 Powers and Duties of Managers. The powers and duties of the managers of
the Company shall be as follows:
(A) President. The President shall be the chief executive of the
Company, shall have general and active management of the
Company and shall see that all orders and resolutions of the
Members are carried into effect, subject, however, to the
right of the members to delegate any specific powers, unless
exclusively conferred upon the President by law, to any other
managers of the Company.
(B) Vice-President. A Vice-President, if elected, shall have such
powers and perform such duties as may be assigned to him or
her by the Members or the President. In the absence or
disability of the president, any designated Vice-President
shall perform the duties and exercise the powers of the
President. A Vice-President may sign and execute contracts and
other obligations pertaining to the regular course of his or
her duties.
(C) Secretary. The Secretary shall attend all meetings of the
Members of the company and shall be responsible for preparing
the minutes of such meetings. The Secretary shall be
responsible for the care and custody of the minute book of the
Company and for authenticating records of the Company. It
shall be his or her duty to give or cause to be given notice
of all meetings of the Members. The Secretary shall also
perform such other duties as may be assigned to him or her by
the Members or by the President, under whose supervision he or
she shall act. In the event the Secretary is absent for some
reason from any meeting where minutes are to be prepared or is
otherwise unable to take such minutes, the presiding officer
of such meeting shall appoint another person, subject to the
approval of those present and entitled to vote at such
meeting, to take the minutes thereof.
(D) Treasurer. The Treasurer, if elected, shall have custody of
the Company funds, securities and shall keep full and accurate
account of receipts and disbursements in the appropriate
Company books, and shall require the deposit of all monies and
other valuable assets in the name of and to the credit of the
Company in such financial institutions as may be designated by
the President or the members. The Treasurer shall require
disbursement of the funds of the Company as may be ordered by
the President or the Members, and shall render to the
President and the Members, at any time they may require, an
account of his or her transactions as Treasurer and of the
financial condition of the Company.
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6.3 Compensation. The compensation of the Managers shall be fixed from time
to time by the Members. No Manager shall be prevented from receiving
such salary by reason of the fact that he is also a Member of the
Company.
6.4 Conflicts of Interest. The provisions of the Act to the contrary
notwithstanding, the Members by their execution hereof, waive a
conflict and approve each action that would otherwise give rise to a
conflict if the transaction was approved at a meeting of the Members
and the contract or transaction was fair and reasonable to the Company
at the time it was authorized, approved or ratified.
ARTICLE VII
CAPITAL CONTRIBUTIONS
7.1 Members' Capital Contributions. Each Member shall contribute the
following as its share of the Initial Capital Contribution:
NAME CONTRIBUTION
ResortQuest International, Inc. $10
7.2 Additional Contributions. Members shall not be required to make
additional Capital Contributions. ResortQuest International, Inc. as
the sole member will fund the operations of Resort Rental Vacations,
LLC.
7.3 Withdrawal or Reduction of Members' Contribution to Capital.
(A) A Member shall not receive out of the Company's property any
part of his Capital Contribution until all liabilities of the
Company, except liabilities to Members on account of their
Capital Contributions, have been paid or there remains
property of the Company sufficient to pay them.
(B) A Member, irrespective of the nature of his Capital
Contribution, has only the right to demand and receive cash in
return for his Capital Contribution.
ARTICLE VIII
ALLOCATIONS OF PROFITS AND LOSSES!
DISTRIBUTIONS
8.1 Profits. Profits for any Fiscal Year shall be allocated among the
Members pro rata based on their relative Membership Interests.
8.2 Losses. Losses for any Fiscal Year shall be allocated among the Members
pro rata based on their relative Membership Interests.
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8.3 Other Allocation Rules.
(A) In the event additional Members are admitted to the Company on
different dates during any Fiscal year, the profits (or
Losses) allocated to the Members for each such Fiscal Year
shall be allocated among the Members in proportion to the
relative Capital Accounts each holds from time to time during
such Fiscal Year in accordance with Code section 706, using
any convention permitted by law and selected by the Members.
(B) For purposes of determining the Profits, Losses or any other
items allocable to any period, Profits, Losses and any such
other items shall be determined on a daily, monthly or other
basis, as determined by the Members using any permissible
method under Code section 706 and its regulations.
8.4 Tax Allocations: Code Section 704 (c). In accordance with Code section
704 (c) and its regulations, income, gain, loss and deduction with
respect to any property contributed to the capital of the Company
shall, solely for tax purposes, be allocated among the Members so as to
take account of any variation between the adjusted basis of such
property to the Company for federal income tax purposes and its initial
Gross Asset Value. In the event the Gross Asset Value of any Company
asset is adjusted, subsequent allocations of income, gain, loss and
deduction with respect to such asset shall take account of any
variation between the adjusted basis of such asset for federal income
tax purposes and its Gross Asset Value in the same manner as under Code
section 704 (c) and its regulations. Any elections or other decisions
relating to such allocations shall be made by the Members in any manner
that reasonably reflects the purpose and intention of this Operating
Agreement. Allocations pursuant to this Section are solely for purposes
of federal, state and local taxes and shall not affect, or in any way
be taken into account in computing, any person's Capital Account or
share of Profits, Losses, other items or distributions pursuant to any
provision of this Operating Agreement.
8.5 Distributions and Allocations in Respect to Transferred Interests. If
any interest in the Company is sold, assigned or transferred during any
Fiscal year in compliance with the provisions of this Operating
Agreement, Profits, Losses, each item thereof and all other items
attributable to such interest for such Fiscal year shall be divided and
allocated between the transferor and the transferee by taking into
account their varying interests during such Fiscal year in accordance
with Code section 706(d), using any conventions permitted by law and
selected by the Members.
8.6 Form of Distributions. Except as otherwise provided by this Operating
Agreement, all distributions shall be made in cash and shall be divided
among the Members in proportion to their Membership Interests.
Distributions of income may be made in such amounts and at such times
as the Members may determine.
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ARTICLE IX
TRANSFERABILITY
General. Except as otherwise specifically provided herein, a Member or
an Financial Interest Owner shall not have the right to:
(A) sell, assign, transfer, exchange or otherwise transfer for
consideration (collectively, "sell" or "sale"),
(B) gift, bequeath or otherwise transfer for no consideration
whether or not by operation of law, except in the case of
bankruptcy (collectively "gift")
all or any part of his Membership Interest or Financial Interest without the
consent of a Majority Interest. In the event that any member or Financial
Interest Owner pledges or otherwise encumbers any of his Membership Interest or
Financial Interest as security for repayment of a liability, any such pledge or
hypothecation shall be made pursuant to a pledge or hypothecation agreement that
requires the pledgee or secured party to be bound by all the terms and
conditions of this Article.
ARTICLE X
DISSOLUTION AND TERMINATION
10.1 Dissolution. The Company shall be dissolved upon the occurrence of any
dissolution event set forth in Act section 48-245-101 (a)(l)-(4). The
Company shall not be dissolved upon the occurrence of any dissolution
event set forth in Act section 48-245-101(a) (5); provided, however,
that such an occurrence will cause a dissolution if it occurs at a time
when the Company has only one other Member, unless within ninety (90)
days after such occurrence, the remaining Member agrees to continue the
business of the Company either (i) with the legal representative or
successor of the other Member, (ii) with a new Member admitted to the
Company of (iii) if permitted by the Act, as the sole Member.
10.2 Notice of Dissolution. As soon as possible following the occurrence of
any of the events effecting the dissolution of the Company, the
appropriate representative of the Company shall execute a notice of
dissolution in such form as shall be prescribed by the Tennessee
Secretary of State's office.
10.3 Effect of Filing Articles of Dissolution. Upon the filing by the
Tennessee Secretary of State of a notice of dissolution, the Company
shall cease to carry on its business, except insofar as may be
necessary for the winding up of its business.
10.4 Winding Up, Liquidation and Distribution of Assets. If the Company is
dissolved and its affairs are to be wound up, the Managers shall:
(A) Sell or otherwise liquidate all of the Company's
assets as promptly as practicable (except to the extent the
Managers may determine to distribute any assets to the Members
in kind),
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(B) Allocate any Profit or Loss resulting from such sales
to the Members' and Financial Interest Owners' Capital
Accounts in accordance with this Operating Agreement,
(C) Discharge all liabilities of the Company, including
liabilities to Members and Financial Interest Owners who are
also creditors, to the extent otherwise permitted by law,
other than liabilities to Members and Financial Interest
Owners for distributions and the return of capital, and
establish such reserves as may be reasonably necessary to
provide for contingent liabilities of the Company (for
purposes of determining the Capital Accounts of the Members
and Financial Interest Owners, the amounts of such reserves
shall be deemed to be an expense of the Company),
(D) Distribute the remaining assets in the following
order:
(1) If any assets of the Company are to be
distributed in kind, the net fair market value of
such assets as of the date of dissolution shall be
determined by independent appraisal or by agreement
of the Members. Such assets shall be deemed to have
been sold as of the date of dissolution for their
fair market value, and the Capital Accounts of the
Members and Financial Interest Owners shall be
adjusted pursuant to the provisions of this Operating
Agreement.
(2) The positive balance (if any) of each
Member's and Financial Interest Owner's Capital
Account (as determined after taking into account all
Capital Account adjustments for the Company's taxable
year during which the liquidation occurs) shall be
distributed to the Members, either in cash or in
kind, as determined by the Members. Any such
distributions to the Members in respect of their
Capital Account shall be made in accordance with the
time requirements of the allocation regulations under
section 704 of the Code.
10.5 Articles of Termination. When all debts, liabilities and obligations
have been paid and discharged or adequate provisions have been made
therefor and all of the remaining property and assets have been
distributed to the members, articles of termination shall be executed
in the manner required by Act section 48-245-503.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Binding Effect. Except as otherwise provided in this Operating
Agreement, every covenant, term and provision of this Operating
Agreement shall be binding upon and inure to the benefit of the Members
and their respective heirs, legatees, legal representatives,
successors, transferees, and assigns.
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11.2 Construction. Every covenant, term, and provision of this Operating
Agreement shall be construed simply according to its fair meaning and
not strictly for or against any Member. The terms of this Operating
Agreement are intended to embody the economic relationship among the
Members and shall not be subject to modification by, or be conformed
with, any actions by the Internal Revenue Service except as this
Operating Agreement may be explicitly so amended and except as may
relate specifically to the filing of tax returns.
11.3 Headings. Section and other headings contained in this Operating
Agreement are for reference purposes only and are not intended to
describe, interpret, define, or limit the scope, extent, or intent of
this Operating Agreement or any provision hereof.
11.4 Severability. Every provision of this Operating Agreement is intended
to be severable. If any term of provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not
affect the validity or legality of the remainder of this Operating
Agreement.
11.5 Further Action. Each Member agrees to perform all further acts and
execute, acknowledge, and deliver any documents which may be reasonably
necessary, appropriate or desirable to carry out the provisions of this
Operating Agreement.
11.6 Variation of Pronouns. All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine, or neuter, singular or plural,
as the identity of the person or persons may require.
11.7 Governing Law. The laws of the State of Tennessee shall govern the
validity of this Operating Agreement, the construction of its terms,
and the interpretation of the rights and duties of the Members.
11.8 Tax Elections. All elections permitted to be made by the Company under
federal or state laws shall be made by the President.
11.9 Creditors. None of the provisions of this Operating Agreement shall be
for the benefit of or enforceable by any creditors of the Company.
11.10 Amendment. This Operating Agreement may not be amended except in
writing and approved by a Majority Interest.
IN WITNESS WHEREOF, the undersigned hereby agree, acknowledge and
certify that the foregoing Operating Agreement constitutes the Operating
Agreement of the Company adopted by all of its Members as of the day and date
first above written.
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MEMBER: COMPANY:
ResortQuest International, Inc. Resort Rental Vacations, LLC
By: ResortQuest International, Inc.
Member Manager
By: /s/ M. Ronald Halpern By: /s/ M. Ronald Halpern
----------------------- -----------------------
M. Ronald Halpern M. Ronald Halpern
Vice President & Secretary Vice President & Secretary
Initial Capital Contribution: $10
Member Address: ResortQuest International, Inc.
530 Oak Court Drive, Suite 360
Memphis, TN 38117
Membership Interest: 100%
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