OPERATING AGREEMENT OF
THE BILTMORE OF LOUISIANA GROUP L.L.C.
ARTICLE I. OFFICES
1.1 Principal Office
1.2 Registered Office
ARTICLE II. MEETINGS
2.1 Annual Meeting
2.2 Regular Meetings
2.3 Special Meetings
2.4 Notice of Meeting
2.5 Quorum
2.6 Proxies
2.7 Voting
2.7.1 Voting by Members
2.7.2 Voting by Certain Members
2.8 Manner of Acting
2.8.1 Formal action by Members.
2.8.2 Procedure
2.8.3 Presumption of Assent
2.8.4 Informal Action of Members
2.9 Order of Business
2.10 Telephonic Meeting
ARTICLE III FISCAL MATTERS
3.1 Fiscal Year
3.2 Deposits
3.3 Checks, Drafts, Etc.
3.4 Loans
3.5 Contracts
3.6 Accountant
3.7 Legal Counsel
ARTICLE IV. MANAGEMENT CERTIFICATES AND THEIR TRANSFER
4.1 Certificates
4.2 Certificate Register
4.3 Capital contributions
4.4 Transfers of Shares
ARTICLE V. BOOKS AND RECORDS
5.1 Books and Records
5.2 Right of Inspection
5.3 Financial Records
ARTICLE VI. DISTRIBUTION OF PROFITS
ARTICLE VII. OFFICERS
7.1 Operating Manager
7.2 Other Officers
7.3 Election and Tenure
7.4 Resignations and Removal
7.5 Vacancies
7.6 Salaries
ARTICLE VIII. MISCELLANEOUS
8.1 Notice
8.2 Waiver of Notice
8.3 Indemnification By Company
8.4 Indemnification Funding
8.5 Duality of Interest Transactions
8.6 Anticipated Transactions
8.7 Gender and Number
8.8 Articles and other Headings
8.9 Reimbursement of Officers and Members
ARTICLE IX. AMENDMENTS
9.1 Amendments
RATIFICATION and EXECUTION
Operating Agreement
Of
THE BILTMORE GROUP L.L.C.
AUGUST 1998
ARTICLE I.
OFFICES
1.1 Principal Office. The principal office of the Company in the State
of Louisiana will be located at 507 Trenton Street, West Monroe, Louisiana
71291. The Company may have other offices, either within or without the
state of Louisiana as the Members may designate or as the business of
the Company may from time to time require.
1.2 Registered Office. The registered office of the Company, required
by the Louisiana Limited Liability Company Act to be maintained in the
State of Louisiana, may, but need not, be identical with the Principal
Office in the State of Louisiana. The address of the initial registered
office of the Company is 507 Trenton Street, West Monroe, Louisiana 71291,
and the initial registered agent at that address is Joanne M. Caldwell-Bayles.
The registered office and the registered agent may be changed from time
to time by action of the Members and by filing the prescribed form with
the Louisiana Secretary of State.
ARTICLE II.
MEETINGS
2.1 Annual Meeting. The annual meeting of the Members will be
held the first Tuesday in the month of January in each year, beginning
with the year 1997 at the hour of 10:00 o'clock a.m., for the purpose
of electing an Operating Manager and for the transaction of other business
as may come before the meeting. If the day fixed for the annual meeting
is a legal holiday, the meeting will be held on the next succeeding business
day. If the election is not held on the day designated in this Agreement
for the annual meeting of the Members, or at any adjournment of the meeting,
the Members will cause the election to be held at a special meeting of
the Members as soon afterward as it may conveniently be held.
2.2 Regular Meetings. The Members may prescribe the time and place
for the holding of regular meetings and may provide that the adoption
of the resolution will constitute notice of the regular meetings. If
the Members do not prescribe the time and place for the holding of regular
meetings, regular meetings will be held at the time and place specified
by the Operating Manager in the notice of each regular meeting.
2.3 Special Meetings. Special meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by
the Operating Manager or by any two Members.
2.4 Notice of Meeting. Written or telephonic notice stating the place,
day and hour of the meeting and, in case of a special meeting, the purposes
for which the meeting is called, must be delivered not less than fifteen
(15) days before the date of the meeting, either personally or by mail,
by or at the direction of the Operating Manager, to each Member of record
entitled to vote at the meeting. If mailed, the notice will be deemed
to be delivered when deposited in
the United States mail, addressed to the Member at his address as it
appears on the books of the Company, with postage prepaid. When all the
Members of the Company are present at any meeting, or if those not present
sign in writing a waiver of notice of the meeting, or subsequently ratify
all the proceedings of the meeting, the transactions of the meeting are
as valid as if a meeting were formally called and notice had been given.
2.5 Quorum. At any meeting of the Members, a majority of the
equity interests, as determined from the capital contribution of each
Member as reflected by the books of the Company, represented in person
or by proxy, will constitute a quorum at a meeting of Members. If less
than a majority of the equity interests are represented at a meeting,
a majority of the interests so represented may adjourn the meeting from
time to time without further notice. At an adjourned meeting at which
a quorum is present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. The
Members present at a duly organized meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough Members to
leave less than a quorum.
2.6 Proxies. At all meetings of Members, a Member may vote by proxy
executed in writing by the Member or by his duly authorized attorney-in-fact.
The proxy must be filed with the Operating Manager of the Company before
or at the time of the meeting. No proxy may be valid after three months
from date of execution, unless otherwise provided in the proxy.
Management Certificates standing in the name of a corporation, partnership
or company may be voted by the officer, partner, agent or proxy as the
Bylaws of the entity may prescribe or, in the absence of such provision,
as the Board of Directors of the entity may determine. Certificates held
by a trustee, personal representative, administrator, executor, guardian
or conservator may be voted by him, either in person or by proxy, without
a transfer of the certificates into his name.
2.7. Voting.
2.7.1. Each Member will have one vote for each one (1) dollar
in Equity interest, as reflected on the book and records of
the company
2.7.2 Voting by Certain Members. Management Certificates
standing in the name of a corporation, partnership or company
may be voted by the officer, partner, agent or proxy as the
Bylaws of the entity may prescribe or, in the absence of such
provision, as the Board of Directors of the entity may
determine. Certificates held by a trustee, personal
representative, administrator, excitor, guardian or
conservator may be vote by him, either in person or by proxy,
without a transfer of the certificates into his name.
2.8 Manner of Acting.
2.8.1 Formal action by Members. Ordinarily, the act of a
majority of the Members present at a meeting at which a
quorum is present will be the act of the Members. On demand
of any Member, voting on a
particular issue may be in accordance with percentage of
equity ownership in the company.
2.8.2 Procedure. The Operating Manager of the Company will
preside at meetings of the Members, may move or second any
item of business but may not vote on any matter when there is
an even number of Members present and the Members are evenly
divided as to an issue. A record must be maintained of the
meetings of the Members. The Members may adopt their own
rules of procedure which may not be inconsistent with this
Operating Agreement.
2.8.3 Presumption of Assent. A Member of the Company who is
present at a meeting of the Members at which action on any
matter is taken will be presumed to have assented to the action
taken, unless his dissent is entered in the minutes of the
meeting or unless he files his written dissent to the action
with the person acting as the secretary of the meeting before
the adjournment of the meeting or forwards his/her dissent by
certified mail to the secretary of the meeting immediately
after the adjournment of the meeting. The right to dissent
will not apply to a Member who voted in favor of the action.
2.8.4 Informal Action of Members. Unless otherwise provided by
law, any action required to be taken at a meeting of the
Members, or any other action which may be taken at a meeting
of the Members, may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all
the Members entitled to vote with respect to the subject
letter thereof.
2.9 Order of Business. The order of business at all meetings of the
Members shall be as follows:
1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Report of the Operating Manager.
5. Reports of Committees.
6. Unfinished Business.
7. New Business.
2.10 Telephonic Meeting. Members of the Company may participate in any
meeting of the Members by means of conference telephone or similar
communication if all persons participating in the meeting can hear one
another for the entire discussion of the matter(s) to be voted on.
Participating in a meeting pursuant to this Section will constitute presence
in person at the meeting.
ARTICLE III
FISCAL MATTERS
3.1 Fiscal Year. The fiscal year of the Limited Liability Company will
begin on the first day of January and end on the last day of December
each year, unless otherwise determined by resolution of the Members.
3.2 Deposits. All funds of the Limited Liability Company will be
deposited from time to time to the credit of the Limited Liability Company
in the banks, trust companies or other depositories as the Members may select.
3.3 Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidences of indebtedness issued
in the name of the Company will be signed by the Operating Manager.
3.4 Loans. No loans may be contracted on behalf of the Limited Liability
Company or no evidences of indebtedness may be issued in its name unless
authorized by a resolution of the Members. The authority may be general
or confined to specific instances.
3.5 Contracts. The Members may authorize any Member or agent of the
Company, in addition to the Operating Manager, to enter into any contract
or execute any instrument in the name of and on behalf of the Company,
and such authority may be general or confined to specific instances.
3.6 Accountant. An Accountant may be selected from time to time by the
Members to perform such tax and accounting services as may be required
from time to time. The accountant may be removed by the members without
assigning any cause.
3.7 Legal Counsel. One or more Attorney(s) at Law may be selected
from time to time by the Members to review the legal affairs of the
Company and to perform other services as may be required and to report
to the Members with respect to those services. The Legal Counsel may
be removed by the Members without assigning any cause.
ARTICLE IV.
MANAGEMENT CERTIFICATES AND THEIR TRANSFER
4.1 Certificates. Management Certificates representing equity interest
in the Company will be in the form determined by the Members. Management
Certificates must be signed by the operating Manager and by all other
Members. All Management Certificates must be consecutively numbered or
otherwise identified. The name and address of the person to whom the
Management Certificates are issued, with the Capital Contribution and
the rate of issue, must be entered in the Certificate Register of the
Company. In case of a lost, destroyed or mutilated management Certificate,
a new one may be issued on the terms and indemnity to the Company as the
Members may prescribe.
4.2 Certificate Register. The stated capital contribution and
proportionate equity interest is reflected in the books and records of the
company which are prepared and kept in the Certificate Register in accordance
with the articles of organization and all operating agreements which may be
in force from time to time.
4.3 Capital contributions. The total capital contribution by the members
is to be ONE MILLION AND N0/100 ($1,000,000.00) DOLLARS. After the capital
contribution by existing members or any new member(s) totaling One Million
and no/100 ($1,000,000.00) have be made or subscribed to, any and all changes
in Members or the amount of Capital contribution must be approved by a
majority of the existing members. Each member(s) will have the right to
acquire an amount of any increase in capital in a percentage equal the
percentage of all
capital contribution being held by the member at the time of any increase in
capital contribution approved by the majority of the members.
4.4 Transfers of Shares. Any Member proposing a transfer or assignment
of his Certificate must first notify the Company, in writing, of all the
details and consideration for the proposed transfer or assignment. The
company, for the benefit of the remaining Members, will have the first
right to acquire the equity by cancellation of the Certificate under the
same terms and conditions as provided in the formal Articles of Organization
as filed with the Wyoming Secretary of State for Members who are deceased,
retired, resigned, expelled, or dissolved.
If the company declines to elect this option, the remaining Members who
desire to participate may proportionately (or in the proportions as the
remaining Members may agree) purchase the interest under the same terms
and conditions first proposed by the withdrawing Member.
If the transfer or assignment is made as originally proposed and the
other Members fail to approve the transfer or assignment by unanimous
written consent, the transferee or assignee will have no right to participate
in the management of the business and affairs of the Limited Liability
Company or to become a Member. The transferee or assignee will only be
entitled to receive the share of the profit or other compensation by way
of income and the return of contributions to which that Member would otherwise
be entitled.
ARTICLE V.
BOOKS AND RECORDS
5.1 Books and Records. The books and records of the company must be
kept at the principal office of the company or at other places, within
or without the state of Louisiana, as the Members from time to time determine.
5.2 Right of Inspection. Any Member of record will have the right to
examine and make copies, at any reasonable time or times for all purpose,
the books and records of account, minutes and records of Members. The
inspection may be made by any agent or attorney of the Member. On the
written request of any Member, the Company must mail to such Member its
most recent financial statements, showing in reasonable detail its assets
and liabilities and the results of its operations.
5.3 Financial Records. All financial records will be maintained and
reported based on generally acceptable accounting practices.
ARTICLE VI.
DISTRIBUTION OF PROFITS
6.0 Method of distribution. In the absence of a unanimous agreement
otherwise, all profits shall be distributed annually prior to the close
of the fiscal year, less and except an amount to be retained for the
cash needs of the company's business. Unless
otherwise provided retained profits shall be deemed an increase in capital
contributions of the Company.
ARTICLE VII.
OFFICERS
7.1 Operating Manager. The Operating Manager will be the chief executive
officer of the Company responsible for the general overall supervision
of the business and affairs of the Company. When present, he will preside
at all meetings of the Members. The operating Manager may sign, on behalf
of the Company, deeds, mortgages, bonds, contracts or other instruments
which have been appropriately authorized to be executed, by the Members
except in cases where the signing or execution is expressly delegated
by the Members or by this operating agreement or by Statute to some other
Officer or Agent of the company; and, in general, he will perform all
duties as may be prescribed by the Board from time to time.
The specific authority and responsibility of the operating manager will
also include the following:
(1) The Operating Manager will effectuate this Operating Agreement and
the Regulations and decisions of the Members.
(2) The Operating Manager will direct and supervise the operations of
the Company.
(3)The Operating Manager, within parameters as may be set by the Members,
will establish charges for services and products of the Limited
Liability Company as may be necessary to provide adequate income for the
efficient operation of the Company.
(4) The Operating Manager, within the budget established by the Members,
will set and adjust wages and rates of pay for all personnel of the
Company and will appoint, hire and dismiss all personnel and regulate
their hours of work.
(5) The Operating Manager will keep the Members advised in all matters
pertaining to the operation of the Company, services rendered, operating
income and expense, financial position, and, to this end, will prepare
and submit a report to the Members at each regular meeting and at
other tines as may be directed by the Members.
7.2 Other Officers. The Company, at the discretion of the Members, may
have additional Officers including, without limitation, one or more
Vice-Operating Managers, one or more Secretaries and one or more Treasurers.
Officers need not be selected from among the Members. One person may hold two
or more offices, except one person may not hold both the office of Operating
Manager and the office of Secretary. When the incumbent of an office,
as determined by the incumbent himself or by the Members, is unable to
perform the duties of his office, or when there is no incumbent of an
office (both such situations referred to hereafter as the "absence"
of the Officer), the duties of the office shall be performed by the person
specified by the Members.
7.3 Election and Tenure. The Officers of the Company will be elected
annually by the Members at the annual meeting. Each Officer
will hold office from the date of his election until the next annual
meeting and until his successor has been elected, unless he sooner resigns
or is removed.
7.4 Resignations and Removal. Any Officer may resign at any time by
giving written notice to the Operating Manager or to all of the Members
and, unless otherwise specified therein, the acceptance of the resignation
will not be necessary to make it effective. Any Officer may be removed
at any time by the Members with or without cause.
7.5 Vacancies. A vacancy in any office may be filled for the unexpired
portion of the term by the Members.
7.6 Salaries. The salaries of the officers will be fixed from time to
time by the Members and no officer may be prevented from receiving such
salary by reason of the fact that he is also a Member of the Company.
ARTICLE VIII.
MISCELLANEOUS
8.1. Notice. Any notice required or permitted to be given pursuant
to the provisions of the Statute, the Articles of Organization of the
Limited Liability Company or this Operating Agreement will be effective
as of the date personally delivered, or if sent by mail, on the date deposited
with United States Postal Service, prepaid and addressed to the intended
receiver at his last known address as shown in the records of the Limited
Liability Company.
8.2 Waiver of Notice. Whenever any notice is required to be given
pursuant to the provisions of the Statute, the Articles of Organization of
the Limited Liability Company or this Operating Agreement, a waiver of the
notice, in writing, signed by the persons entitled to the notice, whether
before or after the time stated therein, will be deemed equivalent to
the giving of the notice.
8.3 Indemnification By Company. The Limited Liability Company may
indemnify any person who was or is a party defendant or is threatened to be
made a party defendant to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Limited Liability Company)
by reason of the fact that he is or was a Member of the Company, Officer,
employee or agent of the Company, or is or was serving at the request
of the Company, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if the Members
determine that he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interest of the Limited Liability
Company, and with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit, or proceeding by judgment, order, settlement, conviction,
or on a plea of nolo contendere or its equivalent, will not in itself create
a presumption that the person did or did not act in good faith and in
a manner which he reasonably believed to be in the best interest of the
Limited Liability Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
8.4 Indemnification Funding. The Company will fund the indemnification
obligations provided by Section 8.3 in the manner and to the extent the
Members may from time to time deem proper.
8.5 Duality of Interest Transactions. Members of this Company have a
duty of undivided loyalty to this Company in all matters affecting this
Company's interests.
8.6 Anticipated Transactions. Notwithstanding the provision of Section
8.5, it is anticipated that the Members and Officers will have other legal
and financial relationships. Representatives of this Company, along with
representatives of other entities, from time to time may participate in
the joint development of contracts and transactions designed to be fair
and reasonable to each participant and to afford an aggregate benefit
to all participants. Therefore, it is anticipated that this Company will
desire to participate in these contracts and transactions and, after ordinary
review for reasonableness, that the participation of the Company in these
contracts and transactions may be authorized by the Members.
8.7 Gender and Number. Whenever the context requires, the gender of
all words used this Agreement will include the masculine, feminine and
neuter, and the number of all words will include the singular and plural.
8.8 Articles and other Headings. The Articles and other headings
contained in this Operating Agreement are for reference purposes only and
will not affect the meaning or interpretation.
8.9 Reimbursement of Officers and Members. Officers and members will
receive reimbursement for expenses reasonably incurred in the performance
of their duties.
ARTICLE IX.
AMENDMENTS
9.0 Amendments. This Operating Agreement may be altered, amended,
restated, or repealed and a new Operating Agreement may be adopted by majority
action of all of the Members, after notice and opportunity for discussion of
the proposed alteration, amendment, restatement, or repeal.
CERTIFICATION
THE UNDERSIGNED, being all of the Members of THE BILTMORE GROUP OF
LOUISIANA L.L.C. , A Louisiana Limited Liability Company, evidence their
adoption and ratification of the foregoing Operating Agreement of the Company.
EXECUTED by each Member on this the 11th day of August, 1998.
/S/JOANNE M CALDWELL-BAYLES /S/JOANNE M CALDWELL-BAYLES
- ---------------------------------- -----------------------------
The Forsythe Group, Inc. Joanne M. Caldwell-Bayles
By: Joanne M. Caldwell-Bayles