EXHIBIT 3.87
RESORTQUEST SOUTHWEST FLORIDA, LLC
A STATE OF DELAWARE LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
RESORTQUEST SOUTHWEST FLORIDA, LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT is made effective as of April 26, 2001 by the Member
(as defined below).
RECITALS
The Member desires to form a Delaware limited liability company pursuant to the
Act (as defined below) and to be governed by this Operating Agreement.
FOR AND IN CONSIDERATION OF the mutual covenants, rights, and obligations set
forth this Agreement, the benefits to be derived therefrom, and other good and
valuable consideration the receipt and the sufficiency of which the Member
hereby acknowledges, the Member as follows:
ARTICLE ONE:
DEFINITIONS
Any term not defined in this Agreement has the meaning ascribed to it in the
Act. Agreement, the following terms have the following meanings:
"Act" means the Delaware Limited Liability Company Act, 6 Del. Code ss.ss.
18-101 et such act may from time to time be amended, including any successor
statute.
"Approval of the Members" means the Consent of the Members having more than 75%
of Membership Interests, and
"Approve" shall mean the act of granting such Consent.
"Bankruptcy" means with respect to any person:
(a) having an order entered for relief with respect to that person
under the Federal Bankruptcy Code,
(b) not paying, or admitting in writing that person's inability to
pay, that per: debts generally as they become due,
(c) making an assignment for the benefit of creditors,
(d) applying for, seeking, consenting to, or acquiescing in the
appointment of a receiver, custodian, trustee, examiner,
liquidator, or similar official for that person
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or any substantial part of that person's property or failing
to cause the discharge (the same within 60 days of
appointment,
(e) instituting any proceeding seeking the entry of any order for
relief under the Federal Bankruptcy Code to adjudicate that
person a bankrupt or insolvent, or failing to cause dismissal
of such proceeding Within 60 days of the institution thereof,
or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment, or composition of
that person or that person's debts, under any law relating to
bankruptcy, insolvency, or reorganization or relief of
debtors, or failing to file an answer or other pleading
denying the material allegations of any such proceeding filed
against that person, or
(f) taking any action to authorize or effect any of the foregoing
actions or failing to contest in good faith the appointment of
a receiver, trustee, examiner, liquidator, or similar official
for that person or any substantial part of that person's
property,
"Certificate" means the certificate of formation filed in the office of the
Secretary of State pursuant to Section 2.1.
"Consent" means the granting of consent to an act or thing by a Member as
provided in Section 4.1.
"Company" means ResortQuest Southwest Florida, LLC, the State of Delaware
limited liability company created by the Certificate filed pursuant to this
Operating Agreement.
"Manager" means any person designated by the Member or such other Member
designated as the Manager in accordance with Section 4.1.1. The Manager shall be
the "manager" of the Company, as defined in section 18-101 of the Act.
"Members" means the Persons listed as Members on Schedule A and such other
Persons who have been duly admitted as Members pursuant to Section 3.1, who have
not ceased to be Members in accordance with the provisions of this Operating
Agreement.
"Membership Interests" means the percentage interests of the Members set forth
as such on Exhibit A, as they may be amended pursuant to this Agreement.
"Officers" means those persons designated as such by the Manager, pursuant to
Section 4.1.3.
"Operating Agreement" means this Operating Agreement, which (as it may be
amended from time to time) shall constitute the Company's "limited liability
company agreement" as defined in section 18-101 of the Act.
"Secretary of State" means the Secretary of State of the State of Delaware.
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ARTICLE TWO:
ORGANIZATION
2.1 Organization
The Company is being organized as a State of Delaware limited liability company,
effective as of the date the Certificate is duly filed in the office of the
Secretary of State.
2.2 Business Conducted in the Name of the Company
All Company business must be conducted in the name of the Company or such other
names that comply with applicable law as the Members may select from time to
time. Title to all assets of the Company shall be taken and held only in the
name of the Company.
2.3 Registered Office; Registered agent; Principal Office in the United
States; Other Offices
The registered agent of the Company in the State of Delaware shall be the
initial registered agent designated in the Certificate or such other Person(s)
as the Manager may designate from time to time in the manner provided by law.
The principal office of the Company shall be at 530 Oak Court Drive, Suite 360,
Memphis, TN 38117, or such other place(s) as the Manager may designate from time
to time. The Company may have such other offices as the Manager may determine
from time to time.
2.4 Purpose
The purpose of the Company is to engage, directly or indirectly, in real estate
development, management, marketing, and related real estate activities and any
other lawful business activity determined by the Manager.
2.5 Foreign Qualification
Each Member shall execute, acknowledge, swear to, and deliver all certificates
and other instruments conforming to this Operating Agreement that are necessary
or appropriate to qualify, or, as appropriate, to continue or terminate such
qualification of, the Company as a foreign limited liability company in all such
jurisdictions in which the Company may conduct business.
2.6 Term
The Company shall continue in existence indefinitely except as may be specified
in or pursuant to this Operating Agreement or as otherwise required by the Act.
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ARTICLE THREE:
MEMBERS AND MEMBERSHIP INTERESTS
3.1 Admission of Members
Those persons listed on Schedule A as Members are hereby admitted to the Company
as Members. New Members (including the admission of a person as a Member in
substitution of an existing Member) may be admitted at such times and on such
terms and conditions (including the amount and form (including, without
limitation, cash, services, and any other form permitted by applicable law) of
such Members' capital contributions, and Membership Interest, and any
appropriate restatement of Members' capital accounts) as may be determined by
the Manager. No such admission shall be effective until the new Member has
agreed in writing to be governed by all the terms and conditions of this
Operating Agreement, and Schedule A shall be amended to reflect such admission.
Only the persons named in Schedule A or subsequently admitted to the Company as
new or substituted Members in accordance with this Operating Agreement shall be
considered Members, and the Company need deal only with the Members so named and
so admitted.
3.2 Resignation of a Member
No Member shall be entitled to resign as a Member (except in relation to the
transfer of the entire Membership Interest of a Member and the admission of the
transferee as a substituted Member in accordance with the terms of this
Operating Agreement) without the Approval of the Members (such Approval
determined without regard to the Membership Interest of the Member purporting to
resign).
3.3 Limitations on Assignment
No Member may assign its Membership interest without the prior consent of the
Manager, which consent may be granted or withheld in the sole discretion of the
Manager. Unless and until an assignee is admitted as a Member (in accordance
with Section 3.1, the assignee shall not be entitled to vote or participate in
the affairs and management of the Company or to exercise any right of a Member.
The Membership Interest of an assignee who is not admitted as Member shall be
deemed to be voted on all matters in the same proportion as Membership Interests
held by Members.
3.4 Cessation of Membership
A person shall cease to be a Member upon the happening of the first to occur of
the following:
(a) the Member resigns as provided in paragraph 3.2;
(b) the Bankruptcy of such Member;
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(c) in the case of a Member who is an individual, upon (i) the
death of the Member or (ii) the adjudication by a court of
competent jurisdiction that the Member is incompetent to
manage his or her person or property;
(d) in the case of a Member who is acting as a Member by virtue of
being a trustee of a trust, the termination of the trust;
(e) in the case of a member that is a partnership or another
limited liability company, the dissolution and commencement of
winding up of such Member;
(f) in the case of a Member that is a corporation, the dissolution
of the corporation or the revocation of its charter; and
(g) in the case of a member that is an estate, the distribution of
the estate's entire Membership Interest.
ARTICLE FOUR:
MANAGEMENT OF THE COMPANY; MANAGER
4.1 Consent of Members
4.1.1 A person shall be removed as the Manager and/or a new Manager may be
appointed only with the Approval of the Member.
4.1.2 Except as set forth elsewhere in this Operating Agreement, the Manager
shall be responsible for performing and shall have the sole authority to conduct
on behalf of the Company all operational and management matters related to the
business of the Company, which shall include, without limitation the authority
to:
(a) manage and provide administration for the assets of the
Company, including exercise of any voting rights conferred
upon the Company;
(b) arrange for the Company to borrow money or provide guarantees
and, in connection therewith, execute such promissory notes,
drafts, bills of exchange, guarantees or other instruments of
and evidences of indebtedness as may be necessary therefor,
and to secure the payment thereof by mortgage, pledge or
assignment of all or any part of the Company's assets;
(c) enter into, execute, amend, supplement, acknowledge and
deliver any and all contracts, agreements or other instruments
as the Manager may determine to be appropriate in furtherance
of the purpose of the Company;
(d) incur all expenditures permitted by this Agreement, and, to
the extent that funds of the Company are available, pay all
expenses, debts and obligations of the Company;
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(e) pay, collect, compromise, litigate, arbitrate or otherwise
adjust or settle any and all claims or demands of or against
the Company;
(f) employ, engage, appoint or dismiss any and all employees,
independent contractors, advisers, consultants or agents,
whether such person is (or is related to or affiliated with) a
Member (including, for the avoidance of doubt, the Manager);
(g) admit a person as a Member in accordance with Section 3.1; and
(h) any other matter delegated to him or her from time to time by
the Members.
Members, having delegated such authority to the Manager, shall not have the
authority to conduct any such activities on behalf of the Company or to act for
or bind the Company except to the extent specifically provided elsewhere in this
Operating Agreement.
Pursuant to section 18-1101 of the Act, the Members hereby agree that the
Manager shall be liable to the Members for any act or omission with regard to
his powers, authority and duties as such Manager solely to the extent such act
or omission constitutes bad faith or willful misconduct. The standard set forth
in the last preceding sentence shall be deemed to replace any duty of loyalty or
duty of care which might otherwise be deemed to apply under the Delaware General
Corporation Law.
4.1.3 The Manager shall have the right to delegate the powers, authorities and
duties reserved to him as set forth in this Operating Agreement to such persons
or entities as the Manager may determine in his sole discretion. Unless and
until otherwise determined by the Manager, such powers, authorities and duties
relating to the operation of the Company are hereby delegated by the Manager,
pursuant to section 18-407 of the Act, to officers of the Company designated by
the Manager, who shall be the President, one or more Vice Presidents, a
Secretary and any assistant such officers, and other officers of the Company, as
the Manager shall determine. Unless and until otherwise determined by the
Manager, the Manager hereby designates such officers as follows:
President: James S. Olin
Senior Vice President L. Park Brady, Jr.
Secretary: M. Ronald Halpern
Assistant Secretary: Karen M. Ray
Unless and until otherwise designated by the Manager, the President, any Vice
President and Secretary of the Company shall have generally the powers,
authorities and duties generally held and performed by the president, vice
president and secretary of a corporation formed under the Delaware General
Corporation Law.
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4.2 Liability to Third Parties/Indemnification
4.2.1 No Member shall have any personal obligation for any obligations, losses,
debts, claims, expenses or encumbrances (collectively, "liabilities") of or
against the Company or its assets, whether such liabilities arise in contract,
tort or otherwise, except to the extent that any such liabilities are expressly
assumed in writing by such Member.
4.2.2 The Company shall defend, indemnify and hold harmless each Member and
Officer from and against any loss, liability, damage, cost or expense, including
reasonable attorneys' fees (collectively, "loss") incurred by reason of any
demands, claims, suits, actions, or proceedings solely arising out of each
Member's or Officer's activities in his or its capacity as such (including,
where appropriate, acting as the Manager); except to the extent such loss arises
from an activity where the Member or Officer is finally determined by a court of
competent jurisdiction to have acted in bad faith or to have engaged in willful
misconduct. Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, and no less often than monthly, upon receipt of
an undertaking by and on behalf of the indemnified party to repay such amount,
if it shall ultimately be determined that such Member or Officer is not entitled
to be indemnified by the Company pursuant to this subsection 4.2.2.
ARTICLE FIVE:
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
5.1 Initial Capital Contributions
Contemporaneously with the commencement of the Company, each Member shall make
the initial capital contribution described for that Member in Exhibit A.
5.2 Subsequent Capital Contribution
5.2.1 Except as set forth below in Section 5.2.2, no Member shall be required or
entitled to make any subsequent capital contribution unless the Members Consent
to such additional capital contribution. Further, no Member shall be required to
contribute to the Company or otherwise restore any portion of any deficit
balance it may have in its Capital Account.
5.2.2 At any time when the Manager shall determine, in his sole discretion, that
additional capital is needed for any purpose of the Company, the Manager may, at
his discretion, cause such funds to be obtained through (i) loans to the Company
from any institutional or other third party lender, on such terms as the Manager
shall deem necessary or appropriate, (ii) loans from the Manager or anyone or
more of his affiliates, which loans shall bear interest at a rate equal to the
greater of 10% per annum or the Applicable Federal Rate at the time such loan is
made, and shall be on such other terms as the Manager shall determine in his
sole discretion, and/or (iii) additional capital contributions ("Additional
Capital Contributions") from the Members, which Additional Capital Contributions
shall be made by the Members in proportion to their respective Membership
Interests.
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5.2.3 The Manager shall give each Member written notice of the requirement for
any Additional Capital Contribution (the "Contribution Notice"). If any Member
(a "Defaulting Member") does not make the required Additional Capital
Contribution within ten (10) business days after delivery of such Contribution
Notice, the other Members shall have the right, but not the obligation, to make
such Defaulting Member's Additional Capital Contribution, in proportion to their
respective Membership Interests, or in such other proportions as such other
Members shall mutually agree. If the Additional Capital Contribution of such
Defaulting Member is made by one or more other Members, then immediately upon
the making of such Contribution (the date of which shall be referred to
hereinafter as the "Adjustment Date") and without the need for any further
notice or action, the Membership Interest of such Defaulting Member shall be
reduced to a percentage equal to that determined by dividing the total capital
contributions made by the Defaulting Member prior to the Reduction Date by the
total capital contributions made by all Members up to and including the
Reduction Date. The Membership Interests of the other Member or Members who make
the Additional Capital Contribution of the Defaulting Member shall be increased
proportionately, as of the Adjustment Date.
5.3 Return of Capital Contributions
Except as provided elsewhere in this Operating Agreement, a Member is not
entitled to the return of any part of his or her capital contributions or to be
paid interest in respect of either his or her Capital Account or capital
contributions. An unrepaid capital contribution is not a liability of the
Company or of any Member. A Member is not required to contribute or to lend any
cash or property to the Company to enable the Company to return any Member's
capital contributions.
5.4 Capital Accounts
A Capital Account shall be established and maintained for each Member. Each
Member's Capital Account (a) shall be increased by (i) the amount of money
contributed by that Member to the Company, (ii) the net fair market value of
property contributed by that Member to the Company, and (iii) allocations to
that Member of Company income and gain (or items thereof), and (b) shall be
decreased by (i) the amount of money distributed to that Member by the Company,
(ii) the net fair market value of property distributed to that Member by the
Company, and (iii) allocations of Company loss and deduction (or items thereof).
It is the intent of the Members that the Capital Accounts be maintained in a
manner that complies with section 704 of the Code and the Treasury Regulations
promulgated thereunder. The Manager shall have the right to restate the capital
accounts of Members upon the admission of a New Member, as set forth in Section
3.1 hereof.
5.5 Income Tax
The Manager shall be the "Tax Matters Partner" under the partnership audit
procedures set forth in the Internal Revenue Code Section 6221, et seq. Tax
decisions and elections for the Company not already provided for herein shall be
made by the Manager. Prompt notice shall be given to the Members upon receipt of
advice by any Member that the Internal Revenue Service or any state or local
taxing authority intends to examine the Company income tax returns for any year.
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ARTICLE SIX:
PROFIT AND LOSS
6.1 Determination of Profit and Loss
The profit and loss of the Company shall be determined in accordance with the
accounting methods followed for federal income tax purposes and otherwise in
accordance with sound accounting principles and procedures applied in a
consistent manner.
6.2 Allocation of Profit and Loss
6.2.1 To the extent permitted by Section 704 of the Code and the Treasury
Regulations promulgated thereunder, profit and loss of the Company for any
taxable year shall be allocated among the Members in proportion to their
respective Membership Interests.
6.2.2 Should the Code or Treasury Regulations require an allocation of Profit or
Loss (or item thereof) that varies from the respective Membership Interests of
the Members (a "Regulatory Allocation"), such Regulatory Allocation shall be
taken into account in allocating Profit and Loss, so that, to the extent
possible, the net amount of such allocations of Profit and Loss shall be equal
to the net amount that would have been allocated to each Member if the
Regulatory Allocations had not occurred.
ARTICLE SEVEN:
DISTRIBUTIONS
7.1 Distributions
7.1.1 Distributions may be made either from profits or from available funds or
in kind from the assets of the Company, at such time or times and in such
amounts as may be determined in the sole discretion of the Manager. Distribution
of an asset in kind to a Member shall be considered a distribution of an amount
equal to the asset's fair market value.
7.1.2 Each distribution shall be made among the Members in accordance with their
respective Membership Interests as of one business day prior to the date of any
such distribution.
ARTICLE EIGHT:
DISSOLUTION
8.1 Events of Dissolution
Subject to section 8.2, the Company shall be dissolved and its affairs shall be
wound up upon the first to occur of the following:
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(a) the expiration of the term of the Company;
(b) a determination by the Managing Partner (in his sole and
absolute discretion) that dissolving the Company would be in
the best interest of the Members;
(c) the approval of the Members to dissolve the Company;
(d) a person's ceasing to be a Member for a reason specified in
Section 3.4; or
(e) the entry of a decree of judicial dissolution under the Act.
8.2 Election to Continue
Notwithstanding Section 8.1, upon the occurrence of any event of dissolution in
Section 8.1(d), if all remaining Members consent within 90 days of the event
causing the dissolution to continue the business of the Company in accordance
with the terms of this Operating Agreement, the Company shall redeem the
Membership Interest of the Member as to which the event of the dissolution
occurred, as of the date of such event of dissolution, for an amount equal to
the capital account of such Member as of such date, and the Company shall not
dissolve but shall continue; provided, however, that if the Membership Interest
is subject to a buy-out agreement with the Company (or affiliate of the Company)
that was entered into in connection with the purchase of the Membership Interest
in the Company, then the Company will permit the redemption by such buy-out
agreement rather than by foregoing provision of the this section 8.2.
8.3 Winding Up
Upon dissolution under Section 8.1, the Company shall conduct no further
business, except for taking such action as shall be necessary for the winding up
of the affairs of the Company and the liquidation and the distribution of its
assets to the Members or the legal representative or successor in interest to a
former Member's Membership Interest pursuant to the provisions of these
Articles.
8.4 Distribution Upon Liquidation
Immediately following the Company's liquidation, the Company assets shall be
applied in the following order of priority:
(a) first, to creditors, including Members who are creditors, to
the extent permitted by law, in satisfaction of the
liabilities of the Company; and
(b) second, to the Members (and legal representatives and
successors in interest to Members) in accordance with their
respective Capital Account balances.
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8.5 Return of Capital Contributions
The Members and former Members shall look solely to the assets of the Company
for the return of their capital contributions, and if the Company's assets
remaining after the payment or discharge of the debts, obligations, and
liabilities of the Company are insufficient to return their capital
contributions, they shall have no recourse against the remaining Members.
ARTICLE NINE:
GENERAL PROVISIONS
9.1 Complete Agreement and Amendments
This Operating Agreement constitutes the entire agreement between the Members
and supersedes all prior written agreements, representations, warranties,
statements, promises, and understandings with respect to the subject matter
hereof. This Agreement may be amended, altered or modified only with the
Approval of the Members; provided that the Manager shall be authorized to make
such changes to this Operating Agreement as are intended to reflect the
operation of other provisions of this Operating Agreement.
9.2 Severability
In the event that any provision of this Agreement shall be held to be invalid or
unenforceable, the same shall not affect in any respect whatsoever the validity
or enforceability of the remainder of this Operating Agreement.
9.3 Survival of Rights
Except as provided herein to the contrary, this Operating Agreement shall be
binding upon and inure to the benefit of the signatories hereto (as well as to
all future parties who are admitted as Members of this Company), their
respective heirs, executors, legal representatives, and permitted successors and
assigns.
9.4 Governing Law
This Operating Agreement is governed by and shall be construed in accordance
with the laws of the State of Delaware, excluding any conflict-of-laws rules or
principle that might refer the governance or the construction of the Operating
Agreement to the law of another jurisdiction.
9.5 Waiver
No consent or waiver, express or implied by a Member or the Company, to the
breach or default by any Member in the performance of his or her obligations
under this Operating Agreement shall be deemed or construed to be a consent or
waiver to any other breach or default.
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9.6 Further Assurances
Each party hereto agrees to do all acts and things and to make, execute and
deliver such written instruments, as shall from time to time be reasonably
required to carry out the terms and provisions of the Operating Agreement.
EXECUTED as of the date first written above
RESORTQUEST SOUTHWEST FLORIDA, LLC
By: ABBOTT REALTY SERVICES, INC.
Member
By: /s/ James S. Olin
--------------------
Name: James S. Olin
Title: President
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SCHEDULE A
MEMBER CAPITAL CONTRIBUTION MEMBERSHIP INTEREST
Abbott Realty Services, Inc. $10.00 100%
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